NSW whistleblower protection law and practice in need of comprehensive overhaul

When the Parliamentary Joint Committee on the Independent Commission Against Corruption in June 2008 was asked to inquire into and report on the effectiveness of current NSW laws, practices and procedures in protecting whistleblower employees, it ran into a problem: despite the fact that the Protected Disclosures Act had been in operation for 15 years , no central government agency had owned or supported the Act. None had information to indicate whether the law had worked effectively or not.

In the foreword to the recently released Final Report, Committee Chairman Frank Terenzini comments:

What became apparent very early in the process was that although the Protected Disclosures Act was enacted in 1994, the regime and associated procedures to protect people who came forward to disclose wrongdoing was never really given the attention and ownership it perhaps deserved. Changes made over the years were minor and peripheral. The intention of the original legislation sought to gather existing protections found in various Acts of Parliament, which resulted in a complicated procedure for reporting. It also set a high eligibility criteria for individuals seeking protection that served as a disincentive for potential whistleblowers. In addition to these issues however, the take up and application of the regime was by far the greatest issue that became apparent during the inquiry. Apart from the NSW Ombudsman’s Office playing an active role in producing guidelines and advising agencies and members of the public about protected disclosures, the inquiry found that there was no central body to administer the Act or collect statistics about the system of protected disclosures in New South Wales. Further, in the absence of any of any consolidated statistical information collated by a central agency, the Committee did not have access to any objective data about the operation of the scheme, including the extent to which public officials have sought the protections available under the Protected Disclosures Act and the resulting outcomes.

The Committee relied on the research for, and findings in, the Whistle While They Work Project and on submissions and evidence from witnesses, before concluding there was no coherent and unified direction for the whistleblowing scheme in NSW. It made 31 recommendations for comprehensive reform and a new policy direction that would place the Ombudsman, properly funded, at the centre of the scheme, to promote its objects and ensure information is collected from which it should be clear in a few years what works and what doesn't.

The law's 15 years as an "orphan" means necessary cultural change, an essential part of the reform agenda, is still to be addressed. That idea prevalent in the 90's of not needing a coordinated push to make good ideas like this work-"let the managers manage"- takes a hammering in this report. Left to their own devices public sector bosses won't necessarily act to give effect to policies and procedures to implement laws such as this. Culture change doesn't necessarily follow when you pass a law requiring people to act differently. Someone needs to make it happen.

The Committee says culture change is essential to "ensure that employees wanting to make disclosures are confident of receiving protection, confident that their disclosure will be investigated, assured that reprisals will not be tolerated and confident that wrongdoers will be prosecuted.... The Committee shares the view of the Deputy Commissioner of the ICAC, that it is a management responsibility(in each government agency) to set the tone in relation to protected disclosures. There needs to be a real commitment from management to see disclosures as a valuable management tool."

There are lessons in this for those trying to promote culture change on access to information in NSW and elsewhere.

The Committee unanimously recommended the following measures: • Strengthening the protections available for whistleblowers through more effective detrimental action provisions involving increased penalties, DPP responsibility for prosecutions, and making detrimental action a disciplinary matter (as well as a criminal offence); • Making access to the institutions and apparatus of protection easier and less complicated; • Providing for injunctions and civil damages; • Simplifying and clarifying particular provisions of the current legislation to assist and encourage whistleblowing in the public sector, in particular, providing for a disclosure to be protected if it is made in the honest belief on reasonable grounds that it tends to show corrupt conduct, maladministration or serious and substantial waste; • Extending the protections available under the PDA to cover contractors, engaged in providing services across the public and private sector interface. Other measures aimed at improving the effectiveness of the scheme include: • Coordinated oversight and monitoring of the operation of the protected disclosures scheme to ensure agencies and departments properly deal with disclosures and afford protection to whistleblower employees; • Mandatory and standardised agency policies and practices, to encourage reporting and protection of whistleblowers; • Clearer policy direction and legislative reform for the protected disclosures scheme. Recommendations have also been made in relation to protected disclosures made by employees against members of Parliament, which was part of the terms of reference for the inquiry.

New South Wales is the only Australian jurisdiction in which currently, disclosures made to the media may be eligible for protection in certain circumstances. The Committee suggests this aspect of the law is working well. It recommends [8.185] no changes while suggesting a Committee to be established should have a look at the issue. In NSW

"The Protected Disclosures Act provides that, in order to be eligible for protection, public officials making disclosures to members of Parliament or journalists must have already made substantially the same disclosure to an investigating authority or public authority, and the authority to whom the disclosure was made must have: decided not to investigate; or not completed the investigation within six months of the original disclosure being made; or investigated the matter but not recommended any action to be taken in respect of the matter; or failed to notify the person making the disclosure whether the disclosure would be investigated within six months of the disclosure being made."

Over to new Premier Keneally.

At the Federal level, we await news following the Government commitment in February to develop legislation this year, and act on the Dreyfus Report in this term of government.