WHISTLEBLOWER LEGISLATION IN NSW

PERFORMANCE CRITERIA FOR THE NSW LEGISLATION

1. Objective and title of legislation

Amended in November 2010 as set out in the Protected Disclosures Amendment (Public Interest Disclosures) Act 2010 No 84. http://www.legislation.nsw.gov.au/ , but yet to be proclaimed . The amendments are consolidated in the Protected Disclosures Act 1994 available on http://www.austlii.edu.au [NSW] or through Google. The objectives of the new Act meet the desirable criteria. [sections 1 & 3]

2. Matters that can be disclosed

Now Now covers corrupt conduct, maladministration, serious and substantial waste and “government information contravention”. The last mentioned is conduct of a kind that constitutes a failure to exercise functions in accordance with any provision of the Government Information (Public Access) Act 2009 [ss10-14]

3. Persons able to make disclosure

Persons employed by the NSW government, including contractors can make disclosures and receive protection. Stated as being Public Officials Does not include members of the general public Motives are irrelevant : “The public official believes in connection with the disclosure …that the belief is an honest belief.” [s.9A]

4. Recipient of disclosures

Sections 12-14 sets out the various agencies to whom the whistleblower can make his/her disclosures. It appears that the Ombudsman can only investigate maladministration .It cannot step in and override a department if the department appears to be covering up an allegation of misconduct [as recommended by the Ideal criteria]

5. Recording and reporting

Each agency is required to keep records in sufficient detail to be able to report to parliament annually. The Ombudsman is to report annually

6. Action required on disclosure

The agency is required to investigate the allegation, or refer it to an agency that has been assigned responsibility

7. Oversight agency T

The revised Act provides for the Ombudsman’s office to monitor, advise and oversight the Act. It does not appear to provide for the Ombudsman to step in and take over an investigation as suggested by the “ideal” guidelines

8. Confidentiality

Required under s.22

9. Protection of the whistleblower
The whistleblower is
• Not liable for breach of secrecy [not covered]
• Not liable for defamation in civil procceedings
• Not to be subjected to workplace sanction
• Entitled to legal redress

10. Disclosing outside agency , to parliament or media

Section 19 of the original legislation has been retained, which permits disclosure to a member of parliament or a journalist if, six months after reporting the wrongdoing , the investigating agency has not investigated the matter or failed to notify the person who made the disclosure

11. Responsibility of agency to protect discloser

The guidelines set out a series of administrative actions that the agency should adopt, including establishing internal procedures, training staff, assessing the risk of reprisals, and otherwise taking steps to ensure no detrimental action is taken against the whistleblower. The amended act places a broad responsibility on the agency, but assigns responsibility for establishment of overall procedures to the Ombudsman and the Steering Committee


12. Remedial action against reprisals.

Most, but not all recommendations of the ideal legislation have been met, as follows
• Stopping reprisals [accepted]
• Taking out an injunction [provided under s,20B]
• Transfer of victim [not provided ]
• An apology [not provided ]
• Compensation [provided under s.20A]
• Disciplinary or criminal action to be against perpetrator [s.20 stipulates Maximum penalty: 100 penalty units or imprisonment for 2 years, or both]. This is an increase over the previous Act. It lies on the defendant to prove that detrimental action shown to be taken against a person was not substantially in reprisal for the person making a protected disclosure.

13. Assessing long term impact on whistleblower

The Act also includes the establishment of a Steering Committee comprising the Ombudsman as Chair, and those public sector departments concerned with probity issues. The Steering Committee has the principal purpose of monitoring the performance of the Act, and suggesting improvements. The Steering Committee is also obligated to make a special report on the outcome of the proposed Commonwealth legislation.