Background

The Protected Disclosures Act 1994 will be proclaimed to commence on and from 1 March, 1995. This Memorandum provides an overview of some of the key points of the legislation and implications for public authorities.

Protected Disclosures

The Act will offer protection for public officials who make disclosures which concern:

corrupt conduct, as defined in the Independent Commission Against Corruption Act 1988;

maladministration, defined for the purposes of the Act as conduct which involves action or: inaction of a serious nature that is

contrary to law, or

unreasonable, unjust, oppressive or improperly discriminatory or

based wholly or partly on improper motives or serious and substantial waste of public money.

The Protected Disclosures Act will make it an offence to take detrimental action in reprisal against a person who makes a protected disclosure. Further, the Public Sector Management Act 1988 will make it a breach of discipline to take detrimental action or disciplinary action in such circumstances.

In the first instance, public officials who allege that they have been subjected to "detrimental action" should pursue this through their authority's internal reporting procedures (where these exist) with the matter to be brought to the attention of the Chief Executive Officer. Where for some reason the complainant does not wish to pursue the matter through the internal channels of the organisation, complainants can take the matter up with the investigating authority whose jurisdiction covers the subject of the complaint.

The Protected Disclosures Act also protects a person against liability for action which may otherwise be available against the person making the disclosure, eg: defamation, breach of secrecy or confidentiality.

Recipients of protected disclosures

Under the legislation, protected disclosures may be made to:

an officer of an agency nominated within an internal procedure established by the agency, or the principal officer of an agency,
or an investigating authority, ie, the Independent Commission Against Corruption, the Auditor General or the Ombudsman,
or in certain limited circumstances detailed in the Act, a member of Parliament or a journalist.

To be protected, the public official making a disclosure to a member of Parliament or to a journalist must have already made substantially the same disclosure to an investigating authority or a public authority in accordance with the Act. The authority to whom the disclosure was made must have:

decided not to investigate the matter or

decided to investigate the matter but not completed the investigation within 6 months of the original disclosure being made or

investigated the matter but not recommended the taking of any action in respect of the matter or

failed to notify the person making the disclosure, within 6 months of the disclosure being made, of whether or not the matter is to be investigated.

In addition, the public official making a disclosure to a member of Parliament or to a journalist must have reasonable grounds for believing the disclosure is substantially true and the disclosure must be substantially true.

Forms of disclosure not protected

Protection is not available for disclosures which are:

frivolous or vexatious;

primarily question the merits of government policy; or

made in an attempt to avoid dismissal or disciplinary action.

It is an offence to wilfully make a false or misleading statement when making a disclosure.

Internal reporting systems

As indicated above, the Act provides protection where reported disclosures are made to an officer of a public authority "in accordance with an internal procedure established by the authority for the reporting of allegations of corrupt conduct, maladministration or serious and substantial waste of public money by the authority or any of its officers" [Section 8(1)(c)].

Although the Protected Disclosures Act does not require Government agencies to establish an internal procedure for reporting allegations, Chief Executive Officers are requested to ensure that their agencies put in place an internal reporting procedure as soon as practicable. It is not intended that agencies necessarily introduce separate reporting systems. In many instances, existing procedures for dealing with human resource grievances or for reporting corruption could be used as the basis for internal reporting for protected disclosures. For some small authorities, it may be that reporting direct to the principal officer may be the most appropriate internal reporting procedure.

It is, however, essential that agencies adopt an internal reporting procedure for the purposes of the Protected Disclosures Act. Once the relevant procedure has been formally established, its existence should be publicised within the agency.

The Independent Commission Against Corruption, the NSW Ombudsman and the Auditor-General have prepared a set of guidelines on internal reporting procedures which may be of assistance to public sector agencies. These guidelines, which are being issued concurrently with this Memorandum, should be read in conjunction with the Protected Disclosures Act.

When establishing reporting systems or dealing with protected disclosures, reference should be made to the Act to ensure protections available and obligations arising are clearly understood.

Local Government

Local Government employees and councillors are also offered protection by the Act. However, the Auditor-General has no authority in relation to a disclosure of serious and substantial waste within local government. The Department of Local Government and Co-operatives is to issue information and advice to councils concerning the Protected Disclosures Act.

Future Action

It is essential that those dealing with protected disclosures are aware of the implications of the Act and that those who may wish to make a disclosure understand the processes involved and their rights.

Officers of the Premier's Department, the Department of Industrial Relations, Employment, Training and Further Education, the Independent Commission Against Corruption, the NSW Ombudsman and the Audit Office of New South Wales are working together to ensure that the Protected Disclosures Act is effectively implemented across the public sector.

A briefing session for those responsible for implementation of the Act is planned for 9:30 am 23 February, 1995 on Level 31, State Office Block, Phillip Street, Sydney. Information packages will be provided to agency representatives.

The NSW Ombudsman will provide advice to public officials on a range of issues including the protections available under the Act, the appropriate investigating authority in relation to the matters to be disclosed, the information that should be provided to the investigating authority, the procedures likely to be followed by the investigating authority on receipt of any protected disclosure.

The investigating authorities will provide advice to public officials with responsibility for setting up internal reporting systems or handling protected disclosures.

Concurrent with this Memorandum, a Circular is being issued by the Director-General, Department of Industrial Relations, Employment, Training and Further Education on the impact of the Protected Disclosures Act on appeals to the Government and Related Employees Appeal Tribunal and on Public Service discipline procedures.

To assist in the process of informing agencies, Chief Executive Officers are asked to nominate an appropriate officer to attend the briefing session referred to above. Details should be facsimiled to the Office of Public Management (tel. 228 3277) by no later than 21 February, 1995.

C. Gellatly
Director-General

Contacts: Rod Longford or Tim Nice, Office of Public Management, tel. 228 4870.
Fausto Sut, Department of Local Government and Co-operatives. tel. (02) 793 0640.