Public Interest Disclosures Act 2022 (NSW)

Public Interest Disclosures Act 2022 No 14 An Act to provide for the protection of persons who make public interest disclosures and for making and dealing with the disclosures; to repeal the Public Interest Disclosures Act 1994 and the Public Interest Disclosures Regulation 2011; to make related amendments to certain legislation; and for related purposes. Part 1 Introduction Division 1 Preliminary 1 Name of Act This Act is the Public Interest Disclosures Act 2022. 2 Commencement This Act commences on— (a) the day that is 18 months after the date of assent, or (b) an earlier day or days to be appointed by proclamation. 3 Objects of Act The objects of this Act are as follows— (a) to facilitate the disclosure by public officials of serious wrongdoing in or affecting the public sector, (b) to promote a culture in which public interest disclosures are encouraged, (c) to protect public officials, witnesses and other persons from detriment or liability that might arise as a result of public interest disclosures, (d) to provide for the establishment and publication of policies and procedures for receiving and dealing with disclosures that are or may be voluntary public interest disclosures, (e) to ensure the interests of all persons affected by public interest disclosures are taken into account in dealing with the disclosures, (f) to provide for independent oversight of the public interest disclosure scheme established by this Act. 4 Act binds Crown This Act binds the Crown. 5 Definitions The Dictionary in Schedule 2 defines words used in this Act. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. 6 Legal personality and responsibilities of agency head (1) If this Act confers or imposes a function on an agency or entity that the agency or entity is incapable of exercising merely because the agency or entity is not a person, the function is taken to be conferred or imposed on the head of the agency or entity. Note— The Interpretation Act 1987 defines person to include an individual, a corporation and a body corporate or politic. (2) Without limiting subsection (1), the head of an agency is responsible for ensuring the agency complies with this Act and the agency's public interest disclosure policy. (3) Subsection (2) applies— (a) whether or not the agency is a person, and (b) whether or not the agency's functions under this Act are exercised by a person who is not the head of the agency. Note— See also sections 80 and 81. Division 2 Relationship with other Acts and laws 7 General (1) The obligations, protections and remedies arising under this Act in relation to a matter are additional to the obligations, protections and remedies arising under another Act or law in relation to the matter. (2) Without limiting subsection (1)— (a) this Act does not affect a duty to disclose information imposed by another Act or law, and (b) this Act does not protect a person who fails to comply with a duty to disclose information imposed by another Act or law from the consequences of the failure. (3) Except as provided by section 58, this Act does not confer a power to deal with a public interest disclosure that is not otherwise available under another Act or law. (4) Except as provided by sections 8–11, 59(6) and 64(4), this Act prevails to the extent of an inconsistency with another Act or law. 8 Legally privileged communications (1) A provision of another Act or law prevails over an inconsistent provision of this Act to the extent that the provision of the other Act or law operates in 1 of the following ways— (a) to require a person to disclose information despite the disclosure breaching a privilege arising from a legally privileged communication, (b) to protect a person from the consequences of breaching a privilege arising from a legally privileged communication in the circumstances mentioned in paragraph (a), (c) to entitle a person to refuse to disclose information on the grounds the disclosure would breach a privilege arising from a legally privileged communication. (2) The privilege arising from a legally privileged communication is not waived merely because a public interest disclosure is made in breach of the privilege. 9 Privilege against self-incrimination (1) This Act does not affect a person's privilege against self-incrimination, whether the privilege arises at general law or under another Act or law. (2) However, a provision of another Act or law prevails over an inconsistent provision of this Act to the extent that the provision of the other Act or law operates in 1 of the following ways— (a) to require a person to disclose information despite the person's privilege against self-incrimination, (b) to protect a person from the consequences of self-incrimination in the circumstances mentioned in paragraph (a), (c) to entitle a person to refuse to disclose information on the grounds of the person's privilege against self-incrimination. 10 Public interest immunity (1) This Act does not affect the right of a public official or agency to make a claim of public interest immunity. (2) Without limiting subsection (1), a claim of public interest immunity is not prevented in relation to information disclosed while making or referring a public interest disclosure merely because of the making or referral of the disclosure. (3) However, a provision of another Act or law prevails over an inconsistent provision of this Act to the extent that the provision of the other Act or law affects the right of a public official or agency to make a claim of public interest immunity. 11 Powers of compulsion and entry The following provisions prevail over an inconsistent provision of this Act— (a) the Independent Commission Against Corruption Act 1988, sections 24, 25 and 37, (b) the Law Enforcement Conduct Commission Act 2016, sections 56, 58 and 74, (c) the Ombudsman Act 1974, sections 21 and 21A, (d) a provision of another Act applying the Ombudsman Act 1974, section 21 or 21A. 12 Corporations legislation An agency is declared to be an excluded matter for the purposes of the Corporations Act 2001 of the Commonwealth (the Corporations Act), section 5F in relation to the Corporations Act, section 1317AAB. Note— The Corporations Act, section 5F provides that if a State law declares a matter to be an excluded matter for the purposes of that section in relation to all or part of the Corporations legislation of the Commonwealth, the provisions that are the subject of the declaration will not apply in relation to the matter in the State concerned. This section ensures an agency, as defined in this Act, will not be a regulated entity under the Corporations Act, Part 9.4AAA. Division 3 Key terms Note— For the meaning and categories of public interest disclosure, see Part 2. 13 Meaning of "serious wrongdoing" In this Act, serious wrongdoing means 1 or more of the following— (a) corrupt conduct, (b) a government information contravention, (c) a local government pecuniary interest contravention, (d) serious maladministration, (e) a privacy contravention, (f) a serious and substantial waste of public money. Note— The categories of serious wrongdoing mentioned in paragraphs (a)–(e) are further defined in the Dictionary in Schedule 2. 14 Meaning of "public official" (1) In this Act, public official means 1 or more of the following— (a) a person employed in or by an agency or otherwise in the service of an agency, (b) a person having public official functions or acting in a public official capacity whose conduct or activities an integrity agency is authorised by another Act or law to investigate, (c) an individual in the service of the Crown, (d) a statutory officer, (e) a person providing services or exercising functions on behalf of an agency, including a contractor, subcontractor or volunteer, (f) if an entity, under a contract, subcontract or other arrangement, is to provide services on behalf of an agency or exercise functions of an agency in whole or in part—an employee, partner or officer of the entity who is to be involved in providing the services in whole or in part, or who is to exercise the functions, (g) a judicial officer, (h) a member of Parliament, including a Minister, (i) a person employed under the Members of Parliament Staff Act 2013. (2) The regulations may, for the purposes of this Act, declare a person— (a) to be a public official, or (b) not to be a public official. 15 Meaning of "manager" of a public official (1) In this Act, manager of a public official means— (a) for a public official who is a police officer—a police officer who is of the rank of sergeant or above and is more senior in rank than the public official, or (b) for a person employed under the Members of Parliament Staff Act 2013—the chief of staff of the political office holder or member of Parliament by whom the person is employed, or (c) for a public official mentioned in section 14(1)(e) or (f)—a public official associated with the relevant agency who is responsible for overseeing the provision of the services or the exercise of the functions, or for managing the contract or arrangement, as applicable, or (d) for a person declared to be a public official under section 14(2)(a)—a person declared by the regulations to be the manager of the public official for the purposes of this Act, or (e) for another public official— (i) a public official to whom the public official reports directly or indirectly, or (ii) a public official who directly or indirectly supervises the public official in the exercise of the public official's functions. (2) However, the following do not have managers for the purposes of this Act— (a) a Minister, (b) a judicial officer, (c) a chief of staff of a political office holder or member of Parliament. Note— Other public officials may also not have managers for the purposes of this Act. (3) In this section— chief of staff, of a political office holder or member of Parliament, means the person with that title employed by the political office holder or member of Parliament or, if no person with that title is employed, the most senior member of staff of the political office holder or member of Parliament. political office holder has the same meaning as in the Members of Parliament Staff Act 2013. 16 Meaning of "agency" (1) In this Act, agency means 1 of the following persons or bodies— (a) a Public Service agency, (b) the group of staff comprising each of the following services, or a separate group of that staff— (i) the NSW Police Force, (ii) the Teaching Service of New South Wales, (iii) the NSW Health Service, (iv) the Transport Service of New South Wales, (c) a statutory body representing the Crown, (d) an integrity agency, (e) a public authority whose conduct or activities an integrity agency is authorised by another Act or law to investigate or audit, (f) a State owned corporation or subsidiary of a State owned corporation, (g) a local government authority, (h) a Local Aboriginal Land Council constituted under the Aboriginal Land Rights Act 1983, (i) the Department of Parliamentary Services, the Department of the Legislative Assembly and the Department of the Legislative Council. (2) However, a Minister's office is not an agency. (3) The regulations may, for the purposes of this Act, declare a body— (a) to be an agency, or (b) not to be an agency. (4) The regulations may declare a specified agency to be part of and included in another specified agency, and not to be a separate agency, for the purposes of— (a) this Act, or (b) specified provisions of this Act. 17 Meaning of "head" of an agency In this Act, head of an agency means— (a) for a Public Service agency—the head of the agency under the Government Sector Employment Act 2013, or (b) for an agency mentioned in section 16(1)(b)—the person who exercises employer functions in relation to the relevant group of staff, or (c) for a local government authority—the general manager, or (d) for a Local Aboriginal Land Council constituted under the Aboriginal Land Rights Act 1983—the chief executive officer, or (e) for the Department of the Legislative Assembly—the Speaker of the Legislative Assembly, or (f) for the Department of the Legislative Council—the President of the Legislative Council, or (g) for the Department of Parliamentary Services—the Speaker of the Legislative Assembly and the President of the Legislative Council, or (h) a person declared by the regulations to be the head of the agency for the purposes of this Act, or (i) for another agency—the individual who constitutes the agency, chief executive officer of the agency, other principal officer of the agency or other person responsible for managing the affairs of the agency. 18 Meaning of "disclosure officer" for an agency (1) In this Act, disclosure officer for an agency means a person responsible for receiving voluntary public interest disclosures on behalf of the agency, including the following— (a) the head of the agency, (b) for each work site that is permanently maintained by the agency and at which more than 1 person is employed—the most senior ongoing employee who ordinarily works at the site, (c) if the agency has an unelected governing body—a member of the governing body, (d) a person specified in the agency's public interest disclosure policy as a person with responsibility for receiving voluntary public interest disclosures on behalf of the agency, (e) a member of a class of persons, or a person employed in a position or role, specified in the agency's public interest disclosure policy as a class, position or role with responsibility for receiving voluntary public interest disclosures on behalf of the agency. (2) If, contrary to Part 4, an agency does not have a public interest disclosure policy or does not include sufficient information in its public interest disclosure policy to enable disclosure officers for the agency to be contacted, a person is taken to be a disclosure officer for the agency if the person is— (a) employed in or by the agency, and (b) a manager of a public official associated with the agency. Note— Section 43(4) requires an agency's public interest disclosure policy to prominently include, or be accompanied by material specifying, information enabling disclosure officers for the agency to be contacted. (3) In this section, a reference to a public interest disclosure policy includes a reference to material accompanying a public interest disclosure policy. 19 Meaning of "integrity agency" In this Act, integrity agency means 1 of the following— (a) the Ombudsman, (b) the Auditor-General, (c) the Independent Commission Against Corruption, (d) the Inspector of the Independent Commission Against Corruption, (e) the Law Enforcement Conduct Commission, (f) the Inspector of the Law Enforcement Conduct Commission, (g) the Secretary of the Department of Planning, Industry and Environment when exercising functions under the following provisions of the Local Government Act 1993— (i) Chapter 13, Part 5, Division 1, (ii) Chapter 14, Part 1, Division 3, (iii) Chapter 14, Part 3, Division 1, (iv) section 734A, (h) the Privacy Commissioner, (i) the Information Commissioner, (j) a person or body declared by the regulations to be an integrity agency for the purposes of this Act. 20 Key terms—relationships (1) In this Act, a disclosure is about serious wrongdoing if the disclosure— (a) includes an allegation of the serious wrongdoing, or (b) otherwise shows or tends to show the serious wrongdoing. (2) To avoid doubt, a disclosure may be about serious wrongdoing whether or not the serious wrongdoing occurred. (3) In this Act, a disclosure relates to an agency if the disclosure is about serious wrongdoing— (a) by the agency, or (b) by a public official associated with the agency, or (c) that otherwise affects, or might affect, the exercise of the functions of the agency. (4) To avoid doubt, a disclosure about serious wrongdoing does not relate to an agency merely because the agency is an integrity agency that is authorised by another Act or law to investigate the serious wrongdoing. (5) In this Act, a public official is associated with an agency if the public official— (a) constitutes the agency, or (b) is employed in or by the agency or is otherwise in the service of the agency, or (c) is a person providing services or exercising functions on behalf of the agency, including a contractor, subcontractor or volunteer, or (d) if an entity, under a contract, subcontract or other arrangement, is to provide services on behalf of the agency or exercise functions of the agency in whole or in part—is an employee, partner or officer of the entity who is to be involved in providing the services in whole or in part, or who is to exercise the functions, or (e) is declared by the regulations to be associated with the agency for the purposes of this Act. Part 2 Public interest disclosures Division 1 General 21 Categories of public interest disclosure (1) In this Act, public interest disclosure means— (a) a voluntary public interest disclosure, or (b) a witness public interest disclosure, or (c) a mandatory public interest disclosure. (2) However, a disclosure is not a public interest disclosure to the extent that the maker of the disclosure, in making or purporting to make the disclosure, wilfully makes a false statement to, or misleads or attempts to mislead, the agency or person to whom the disclosure is made. Note— See also section 84. 22 Meaning of "witness public interest disclosure" (1) In this Act, witness public interest disclosure means a disclosure of information, in an investigation of serious wrongdoing, at the request of or in response to a requirement of a person or agency investigating the serious wrongdoing, whether or not the investigation— (a) relates to or arises from the making of a voluntary public interest disclosure, or (b) constitutes dealing with a voluntary public interest disclosure. (2) However, a disclosure is not a witness public interest disclosure if the disclosure is a mandatory public interest disclosure. 23 Meaning of "mandatory public interest disclosure" (1) In this Act, mandatory public interest disclosure means a disclosure about serious wrongdoing made by a public official— (a) while meeting the ordinary requirements of the official's particular role or functions, or (b) under a statutory or other legal obligation, including the obligation imposed by section 51(1) on managers of public officials. (2) For the purposes of subsection (1)(b), an obligation imposed by a code of conduct is not a statutory or other legal obligation. Division 2 Voluntary public interest disclosures 24 Meaning of "voluntary public interest disclosure" (1) In this Act, voluntary public interest disclosure means— (a) a disclosure that complies with each of the following— (i) section 25—Makers of voluntary public interest disclosures, (ii) section 26—Content of voluntary public interest disclosures, (iii) section 27—Recipients of voluntary public interest disclosures, or (b) a disclosure that is the subject of a determination under section 29—Deemed voluntary public interest disclosures. Note— Section 28 imposes further conditions where disclosures are made to members of Parliament or journalists. (2) A disclosure may be a voluntary public interest disclosure whether or not— (a) it is made orally or in writing, or (b) it is anonymous, or (c) the maker of the disclosure states the disclosure— (i) is a public interest disclosure, or (ii) is made under this Act. Note— The Dictionary in Schedule 2 defines anonymous, in relation to a disclosure, to mean that, taking into account the circumstances of the disclosure and the material accompanying the disclosure, there is no reasonably practicable means of communicating with the maker of the disclosure about the disclosure, whether or not the maker's name is known. (3) However, a disclosure is not a voluntary public interest disclosure if the disclosure is— (a) a witness public interest disclosure, or (b) a mandatory public interest disclosure, or (c) made orally to a Minister or a member of a Minister's staff. Note— Section 52(c) describes action to be taken by a Minister or member of a Minister's staff to whom an oral disclosure about serious wrongdoing is made by a public official. 25 Makers of voluntary public interest disclosures A disclosure complies with this section if the disclosure is made by a public official who is not a member of Parliament. 26 Content of voluntary public interest disclosures (1) A disclosure complies with this section if the maker of the disclosure honestly, and on reasonable grounds, believes the disclosure shows or tends to show serious wrongdoing. (2) A disclosure does not comply with this section if the information disclosed relates only to a disagreement with a government policy, including— (a) a government decision concerning amounts, purposes or priorities of public expenditure, or (b) a policy of the governing body of a local government authority. (3) A disclosure does not comply with this section if the information disclosed— (a) concerns only a grievance about a matter relating to the employment or former employment of an individual, and (b) either— (i) does not have significant implications beyond matters personally affecting or tending to personally affect the individual, or (ii) relates to a disagreement with the taking or proposed taking of reasonable management action. (4) However, subsection (3) does not apply if the grievance arises from— (a) a decision made by an agency in dealing with a previous voluntary public interest disclosure, or (b) alleged detrimental action relating to a previous voluntary public interest disclosure. (5) For the purposes of deciding whether a disclosure complies with this section, an express or implied indication by the person making the disclosure as to what the person believes in relation to the disclosure is, in the absence of evidence to the contrary, evidence the person holds the belief honestly. 27 Recipients of voluntary public interest disclosures (1) A disclosure complies with this section if it is made to 1 or more of the following— (a) the head of an agency, (b) another disclosure officer for an agency, (c) a manager of the person making the disclosure, (d) subject to section 24(3)(c)—a Minister or a member of a Minister's staff, (e) subject to section 28—a member of Parliament or a journalist. Note 1— Section 16 defines agency to include an integrity agency. Note 2— Section 50 specifies when an agency receives a disclosure. Sections 51–53 impose obligations on certain individuals to whom disclosures are made. (2) For the purposes of this section, a disclosure is taken to be made to the head of an agency if the disclosure is made in written correspondence that is— (a) sent to the agency's registered address, email address or other usual address for the receipt of electronic communications, and (b) not addressed to a specific individual. 28 Voluntary public interest disclosures to members of Parliament or journalists (1) A disclosure made to a member of Parliament or a journalist is a voluntary public interest disclosure only if, in addition to complying with sections 25–27— (a) the disclosure is substantially true, and (b) the maker of the disclosure has previously made substantially the same voluntary public interest disclosure (the previous disclosure) to a person mentioned in section 27(1)(a)–(d), and (c) the previous disclosure was not anonymous, and (d) the maker of the previous disclosure did not waive, in writing, the right to receive information under section 59 in relation to the previous disclosure, and (e) either— (i) the maker of the previous disclosure has not, at the end of the investigation period, received from an agency the required information in relation to the previous disclosure, or (ii) the maker of the previous disclosure has been notified by an agency, at any time, that the agency has made a decision mentioned in section 55(3) in relation to the previous disclosure. Note— The Dictionary in Schedule 2 defines anonymous, in relation to a disclosure, to mean that, taking into account the circumstances of the disclosure and the material accompanying the disclosure, there is no reasonably practicable means of communicating with the maker of the disclosure about the disclosure, whether or not the maker's name is known. (2) In this section— investigation period, in relation to a previous disclosure, means— (a) the period of 6 months from the making of the previous disclosure, or (b) if the maker of the previous disclosure applies within 6 months of making the previous disclosure for internal review of an agency decision relating to the previous disclosure—the period of 12 months from the making of the previous disclosure. member of Parliament does not include a Minister. required information, in relation to a previous disclosure, means— (a) notice of the agency's decision to investigate the relevant serious wrongdoing in accordance with Part 5, Division 2, and (b) a description of the results of the investigation of the relevant serious wrongdoing, and (c) details of the corrective action taken, proposed or recommended as a result of the previous disclosure or the investigation. Note— Section 59 specifies information agencies must provide to the makers of voluntary public interest disclosures. Section 60 provides for the internal review of certain agency decisions. 29 Deemed voluntary public interest disclosures (1) The head of an agency may determine a disclosure made by another person is a voluntary public interest disclosure even if the disclosure would not otherwise be a voluntary public interest disclosure. (2) The determination— (a) may be made at the head of the agency's own initiative or at the request of the maker of the disclosure, and (b) must be given in writing to the maker of the disclosure, and (c) must not be made unless the head of the agency believes the disclosure shows or tends to show serious wrongdoing. (3) The head of the agency's belief must be held honestly and on reasonable grounds. (4) However, the fact the head of the agency's belief is not held honestly or on reasonable grounds does not affect the validity of the determination. (5) The written determination is admissible in criminal or civil proceedings and is evidence the disclosure is a voluntary public interest disclosure. (6) The determination has effect from the time it is made. (7) If a person who has made a disclosure requests a head of an agency make a determination in relation to the disclosure, the head of the agency must, after considering the request— (a) make the determination and inform the person of the determination, or (b) refuse to make the determination and inform the person of the refusal and the reasons for the refusal. Note— Members of the public who make disclosures about serious wrongdoing to integrity agencies may be entitled to protections under other Acts. See also the following— (a) the Independent Commission Against Corruption Act 1988, Part 8A, (b) the Ombudsman Act 1974, Part 4B, (c) the Law Enforcement Conduct Commission Act 2016, Part 6A. (8) If the head of the agency, after making a determination, forms the view the maker of the disclosure, in making the disclosure, wilfully made a false statement to, or misled or attempted to mislead, the agency or person to whom the disclosure was made, the head of the agency may revoke the determination. (9) The revocation has effect from the time the determination was made. (10) If an agency refers a disclosure that is the subject of a determination to another agency under this Act or another Act or law, the referring agency is to inform the other agency of the making of the determination. Part 3 Protections Division 1 General 30 Application of Part This Part applies to a public interest disclosure from the time the disclosure is first made. 31 Reasonable management action not prevented (1) This Part does not prevent reasonable management action from being taken in relation to a public official. (2) Without limiting subsection (1)— (a) a person, by taking reasonable management action in relation to a public official, does not— (i) commit a detrimental action offence or incur other liability under this Part, or (ii) commit an offence against the Police Act 1990, section 206, and (b) action taken in relation to a public official may be reasonable management action— (i) if the public official is alleged to have committed a detrimental action offence—whether or not the official has been charged with the offence, and (ii) if the public official has been convicted of a detrimental action offence—on the ground of the conduct to which the conviction relates and without further investigation of whether the conduct occurred, and (iii) whether or not the action is taken by a manager of the public official. (3) In this Act, reasonable management action taken in relation to a public official includes— (a) a reasonable appraisal of the public official's work performance, and (b) a reasonable counselling action, whether formal or informal, taken in relation to the public official's employment, and (c) a reasonable suspension of the public official from the public official's workplace, and (d) a reasonable decision to investigate serious wrongdoing or other misconduct alleged or suspected to have been committed by the public official, and (e) a reasonable disciplinary action, whether formal or informal, taken in relation to the public official's employment, and (f) a reasonable action to transfer, deploy or redeploy the public official, and (g) a reasonable action to terminate the public official's employment by redundancy or retrenchment, an