New Public Interest Disclosures amendments

SUMMARY OF ISSUE:

– Since the introduction of the new Public Interest Disclosures (PID) Act, local government has been at the forefront of its implementation. Recent amendments to the PID Act clarify certain issues that have arisen since implementation and are essential reading for all Council staff involved in the management of complaints and allegations of misconduct.

–  A key compliance issue of the PID Act was the undertaking of audits by the NSW Ombudsman on Councils. Be aware of some of the issues that are examined by these independent audits so you are prepared rather than surprised when they come.

Public Interest Disclosure (PID) procedures have now been in operation in Councils across NSW since 2011.

Since this time, implementation by local government across NSW has been finalised and most staff and management appear to have worked to ensure their Councils are compliant with the requirements of the Act.

Recent amendments given assent on 3 April, 2013 reflect recommendations of the Public Interest Disclosures Steering Committee headed up by the NSW Ombudsman. Amendments relevant to NSW local government and those responsible for PIDs and investigations include:

Extension of definition for “public official”

The amendment extends the definition of public officials in Section 4A of the Act is meant to remove some ambiguity about the scope of the definition and clarify that certain individuals are public officials.

This would include certain employees or officers of a council who are engaged under a contract to provide services to or on its behalf with volunteer rural fire fighters, SES workers, RSPCA inspectors and accredited certifiers under the EPA Act specifically named in the amending Act.

Also covered in the extended definition are individuals engaged under a contract to provide services to or on behalf of the Council.

The amendment do not seem to be intended to broaden the scope of the definition of “public official” but should assist, however, a person considering making a public interest disclosure in the future to understand whether they are a “public official” who can be protected under the Public Interest Disclosures Act.

Disclosures do not need to be made voluntarily

Previously the PID Act only acted to protect disclosures made voluntarily. While there are some exceptions, section 9 expressly provided that a disclosure was not made voluntarily if it is made by a public official in the exercise of a duty imposed on that official by legislation.

This meant that a public official in a Council who made a disclosure of wrongdoing in the public sector under a statutory obligation ie who had a duty to report certain corrupt conduct to the Independent Commission Against

Corruption under the Independent Commission Against Corruption Act 1988 was not protected against reprisals for that disclosure by the Public Interest Disclosures Act.

The new amended Act remedies this situation and now protects Council staff and those deemed as “public officials” who are compelled to make a disclosure because of a statutory obligation.

Extension of time to cover reprisal action

The amended Act also extends the period of time within which proceedings may commence for reprisal action against a person who made a public interest disclosure.

Previously, prosecutions for reprisal action needed to be commenced within two years of the alleged offence. The Act now extends this period to three years after the offence is alleged to have been committed, to cover concerns by the Steering Committee that allegations of reprisal action can be made some time after the action is alleged to have occurred.

Auditing of PID function within Councils

The PID Act gives PID staff within the NSW Ombudsman’s Office extensive powers to audit the PID functions with any NSW council and to report their findings to Parliament as necessary.

To prepare for such an audit, Councils should be prepared to show  compliance in key areas and that:

–          Their policy and procedures concerning PIDs and internal reports are up to date and documented;

–          Steps have been taken to raise the awareness of staff in all areas of Council about the process for making an internal protected disclosure report;

–          A selection of internal reports over a specified period are available for closer examination;

–          Details on how matters characterised as PIDs are handled.

When preparing for an audit, Council should now make sure that the elements set out in the April, 2013 amendments are covered in their internal procedures as well as new starter inductions and refresher training for existing staff.

TO STAY ON TOP OF THIS ISSUE YOU WILL NEED TO:

– take action to inform staff, councillors, volunteers and others now included in the extended definition of “public official” of changes to the Act and its impact on their ability to make protected disclosures;

–  amend documentation of Council procedures for PIDs

While most Councils undertook a major training effort for the PID Act in 2011, now is the time to consider conducting refresher training for existing staff to cover:

–          Obligations under the PID Act;

–          The changed obligations arising from the April 2013 amendments;

For new staff, amendments to training documentation to incorporate the latest changes will be necessary.

O’Connell Workplace Relations can assist

With over 20 years’ experience in assisting Councils, O’Connell can assist your Council in the following ways:

ü  Develop and/or conduct briefings on the PID Act for your Council, especially for staff with supervisory roles, senior managers and your councillors;

ü  Provide accredited specialists with extensive experience of workplace mediations and ADR in NSW local government.

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