New laws in NSW are proposing to re-write protection for public officials who blow the whistle on wrongdoing and simplify the process of speaking out.
The Public Interest Disclosures Bill 2021, introduced into NSW Parliament last week, has received a tick of approval from the state’s ombud, Paul Miller.
It follows a parliamentary committee recommending a complete rewrite of the legislation in 2017.
Miller tabled a report in the NSW Parliament on Tuesday that assessed the bill against recommendations made by various committees, and found it addressed many of the weaknesses in the existing legislation.
“I am very pleased to confirm that the bill substantially implements all but one of the parliamentary committee’s recommendations,” Miller said.
The one recommendation the bill does not implement is that under the unchanged section of the new bill it remains the case that a public official cannot make a disclosure to a journalist or politician unless a high threshold is met.
This includes making the same disclosure under the act to a relevant public authority or investigator, an investigation not being completed within six months, and the disclosure being substantially true with the disclosure having reasonable grounds to believe it.
Miller’s report notes the threshold is “too high” and no other Australian jurisdiction had different requirements for external disclosures to internal disclosures.
“It is very rare for public officials to make public interest disclosures to the media,” Miller said.
“[But] this can be a last resort avenue where internal systems of accountability have failed, and in that way they serve an important public function.”
However, the bill also removes barriers to making disclosures, Miller’s report highlights, including allowing officials to make a public interest disclosure to their own manager as well as the head of their agency or nominated disclosure officers.
It also gives more protection to those involved in disclosing information, including witnesses and investigators. Agencies will have greater obligations to have whistleblowing policies and train staff while the official watchdogs will receive more comprehensive reporting.
“The willingness of public officials to come forward and report wrongdoing when they see it is essential to maintaining integrity and public confidence,” Miller says.
“What is needed is a cultural shift, where speaking up in the public sector is an easy, normal and safe thing to do.”
The bill provides for a commencement date no later than 18 months after assent.
“All public sector agencies, statutory bodies and local councils, as well as contracted service providers, will be affected by this new legislation, and will need to develop and implement new policies and training,” Miller said.
“Before that can happen, detailed regulations, as well as comprehensive guidance and training material, will need to be developed.”
The report states the NSW Ombudsman’s Office, which has oversight of the operation of the act, would require significant new funding to prepare for the new laws to commence, and to offer enhanced oversight and reporting.