On 1 November 2021, NSWCCL made a submission to the Inquiry into the Public Interest Disclosures Bill 2021. The Bill re-writes protection for public officials who blow the whistle on wrongdoing, following a 2017 Joint Parliamentary Committee review that recommended a complete rewrite of the existing legislation.
NSWCCL endorses the Bill, which we note adopts nearly all the recommendations from the 2017 report, while noting some shortcomings.
Under the new Bill:
- it is simpler for public officials to report wrongdoing with a “no wrong door approach”,
- clear duties are imposed on agencies to deal with the alleged wrongdoing, and
- supports and protections are set out for the person who reported.
Shortcomings of the Bill
NSWCCL is concerned that some serious types of wrongdoing are not explicitly included in the Bill, notably:
- an alleged crime or breach of the law
- official misconduct
- defective administration, which includes negligence or incompetence
- any failure to perform a duty that could result in injury to the public
As noted in the Ombudsman's Special Report, unlike other Australian jurisdictions, the Bill does not expressly extend to conduct that endangers health, safety or the environment. That submission also acknowledges that “serious maladministration” would exclude a disclosure such as a sexual harassment claim, which would certainly be a matter of public interest.
NSWCCL would support amendments to address these matters.
In some situations, a discloser might prefer to report a wrongdoing directly to external parties - for example, in an urgent situation or for fear of a cover up. Direct external disclosures should therefore be permitted in limited circumstances and a public interest defence should be available.
The Bill also retains a requirement from the original legislation that external disclosures, to Members of parliament and journalists, must be ‘substantially true’.
The Joint Parliamentary Committee review specifically recommended removing the threshold so that a discloser who reports to the media or a member of parliament will be protected, provided they believed honestly, and on reasonable grounds, that their disclosure indicated serious wrongdoing. NSWCCL supports this approach.
The anomaly was also raised for consideration by the Legislation Review Committee, which commented that it “may leave the disclosing individual in a state of flux where it is unclear if they will receive the protections of the Bill. This is because further investigation may be required to prove the veracity of the disclosure, or in some cases it may not be possible to make a determination as to whether a disclosure is substantially true.”
The Ombudsman's office
The Ombudsman’s office should receive adequate funding to oversee the operations of the Bill. The Ombudsman should also have increased powers to participate in investigations and case handling as an Appeals body or, as suggested by the NSW Bar Association, this function could be by way of appeal to NCAT.