The new Public Interest Disclosure Bill 2021, introduced to Parliament last week, comes in response to recommendations from the 2017 parliamentary ombudsman committee. The bill states that one of its primary objectives is to “promote a culture in which public interest disclosures are encouraged” by whistleblowers.

“What is needed is a cultural shift, where speaking up in the public sector is an easy, normal and safe thing to do,” Mr Miller commented. “That requires laws that make it as simple as possible for public officials to report wrongdoing. And those laws need to impose clear duties on agencies to deal with the alleged wrongdoing, as well as to take practical and pro-active steps to support and protect the person who reported.”

The Ombudsman’s report assessed the bill against 38 recommendations made by the parliamentary ombudsman committee, as well as further recommendations made by the parliamentary ICAC committee in a separate 2018 report. The new report explains how the bill addresses many of the existing weaknesses.

Specifically, it notes that the new bill is simpler and easier to navigate and contains fewer “trip hazards” for would-be whistleblowers. For example, as well as being able to report to the head of their agency or to agency-nominated disclosure officials, a potential whistleblower can report a public interest disclosure to their own manager.

Additionally, whistleblowers will also be able to report wrongdoing directly to any integrity agency. Those integrity agencies will be required to ensure that the report is referred on, if necessary, to the most appropriate agency to deal with it.

It also extends protections to cover those who are involved in the investigation of disclosures, imposes additional obligations on agencies to adopt whistleblowing policies, and provides a more comprehensive reporting to the Ombudsman, as well as publicly, about the number of disclosures provided and how they were dealt with.

All recommendations from the 2017 parliamentary ombudsman committee were implemented except one that relates to disclosures to journalists and to members of Parliament. In NSW, a public official can only make a public interest disclosure to the media if, at least six months earlier, they already made the disclosure through official channels and no appropriate investigation or action was taken.

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However, to gain the protections of the legislation, the disclosure to the media must also be shown to be “substantially true”, the Ombudsman said. The parliamentary committee recommended removing that additional threshold so that an official who reports to the media will be protected, provided they believed honestly, and on reasonable grounds, that their disclosure indicated serious wrongdoing.

“It is very rare for public officials to make public interest disclosure to the media,” Mr Miller, who supported the committee’s recommendation, said. “Most public officials prefer, for good reason, to report concerns about wrongdoing either within their agency or to one of the dedicated integrity agencies.

“That said, there are rare occasions where reporting outside the system – to the media or to a member of parliament – may be appropriate. This can be a last resort avenue where internal systems of accountability have failed and, in that way, they serve an important public function.”

The bill provides for a commencement date no later than 18 months after assent, a timeframe supported by the NSW Ombudsman. It will, however, require significant new funding as part of its enhanced oversight and reporting functions.

“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,” Mr Miller said.

“Before that can happen, detailed regulations, as well as comprehensive guidance and training material, will need to be developed.”