NSW whistleblower laws ‘need improvement’, state ombud says

By Shannon Jenkins

December 15, 2020


The New South Wales Ombudsman has called on the state government to finalise its proposed whistleblowing reforms so the public sector can build a culture that encourages public servants to speak up when they see wrongdoing.

The ombud’s latest report on public sector whistleblowing, tabled on Tuesday, noted that NSW public officials made 949 public interest disclosures (PIDs) to investigating authorities in the 2019-20 financial year. Two thirds of those were made to the Independent Commission Against Corruption by heads of public sector agencies.

In 2019-20, 75 public authorities reported that they had received a total of 383 PIDs about their own agencies. Consistent with previous years, 82% of those included an allegation of corrupt conduct. The second most common primary issue recorded — for matters that didn’t also involve an allegation of corrupt conduct — was alleged serious maladministration (10%).

While the ombud found there were slightly fewer PIDs in 2019-20 than in 2018-19 (1,116), the number of reports has remained higher than earlier years, and is consistent with a long-term trend of increased reporting.

Presenting the report to Parliament on Tuesday, acting ombud Paul Miller said the report has highlighted the essential role of independent integrity bodies in investigating reports of wrongdoing, and has shown why workplaces must build a culture that allows for the reporting of misconduct.

“This year’s report again shows how important it is for public officials to speak up when they see wrongdoing, and for them to be confident that, if they do, they will be supported,” he said.

Read more: NSW Ombudsman joins call for increased funding for integrity agencies

The current PID Act was drafted more than 25 years ago and has been the subject of a range of amendments, the report noted. Reforms were recommended by a joint parliamentary committee in 2017, and in 2018, the state government agreed to prepare a bill in accordance with the committee’s recommendations.

Miller said the PID Act “needs improvement”, and has urged the government to get a move on.

“We appreciate that the drafting of the bill is complex. We are also aware that progress on the draft bill has been impacted by the COVID-19 pandemic,” he said.

“However, it is important the bill be finalised as soon as possible. I look forward to new legislation that better supports a culture where public officials are encouraged to report serious wrongdoing with full confidence that they will be protected if they do so.”

Under the PID Act, a NSW public official who reports wrongdoing to the media will only gain protection if certain criteria are met. This includes that they must have previously made the same report either within their own agency or to an investigating authority.

The whistleblower’s disclosure to the media must also be “substantially true” in order to be protected. The parliamentary committee has recommended this be removed from the PID Act, as it creates a risk for public officials and may dissuade them from reporting wrongdoing.

In the report, Miller said a new PID Act would also support the ombud’s office to educate stakeholders, promote better practice, and collect, analyse and report in a more meaningful way on data relating to public sector whistleblowing.

Read more: Public servants feel safer to report misconduct while working from home, according to head of whistleblowing service


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