This Act may be cited as the Public Interest Disclosures Act 1994.
This Act commences on a day or days to be appointed by proclamation.
(1) The object of this Act is to encourage and facilitate the disclosure, in the public interest, of corrupt conduct, maladministration, serious and substantial waste, government information contravention and local government pecuniary interest contravention in the public sector by:(a) enhancing and augmenting established procedures for making disclosures concerning such matters, and(b) protecting persons from reprisals that might otherwise be inflicted on them because of those disclosures, and(c) providing for those disclosures to be properly investigated and dealt with.(2) Nothing in this Act is intended to affect the proper administration and management of an investigating authority or public authority (including action that may or is required to be taken in respect of the salary, wages, conditions of employment or discipline of a public official), subject to the following:(a) detrimental action is not to be taken against a person if to do so would be in contravention of this Act, and(b) beneficial treatment is not to be given in favour of a person if the purpose (or one of the purposes) for doing so is to influence the person to make, to refrain from making, or to withdraw a disclosure.
(1) In this Act:CC Inspector means the Inspector of the New South Wales Crime Commission appointed under the Crime Commission Act 2012.
CC officer means an officer of the Crime Commission, as defined in the Crime Commission Act 2012.
CCI officer means an officer of the CC Inspector, as defined in the Crime Commission Act 2012.
Commission means the Independent Commission Against Corruption.
corrupt conduct has the meaning given to it by the Independent Commission Against Corruption Act 1988.
Crime Commission means the New South Wales Crime Commission.
detrimental action is defined in section 20.
exercise of a function includes, where the function is a duty, the performance of the duty.
function includes power, authority or duty.
government information contravention means conduct of a kind that constitutes a failure to exercise functions in accordance with any provision of the Government Information (Public Access) Act 2009.
ICAC Inspector means the Inspector of the Independent Commission Against Corruption appointed under the Independent Commission Against Corruption Act 1988.
investigate includes inquire or audit.
investigating authority means:
(a) the Auditor-General, or(b) the Commission, or(c) the Ombudsman, or(d) the PIC, or(e) the PIC Inspector, or(f) the local government investigating authority, or(g) the ICAC Inspector, or(h) the Information Commissioner, or(i) the CC Inspector.investigation Act means:
(a) the Independent Commission Against Corruption Act 1988, or(b) the Ombudsman Act 1974, or(c) the Public Finance and Audit Act 1983, or(d) the Police Integrity Commission Act 1996, or(e) the Local Government Act 1993, or(f) the Government Information (Information Commissioner) Act 2009, or(g) the Crime Commission Act 2012.journalist means a person engaged in the occupation of writing or editing material intended for publication in the print or electronic news media.
local government authority means:
(a) a council, or(b) a county council,within the meaning of the Local Government Act 1993.local government investigating authority means the Director-General under section 429A (Complaints about councils, councillors, delegates and staff) of the Local Government Act 1993.
local government pecuniary interest contravention means the breach of an obligation imposed by the Local Government Act 1993 in connection with a pecuniary interest.
maladministration is defined in section 11 (2).
officer of the ICAC Inspector means an officer of the Inspector, as defined in the Independent Commission Against Corruption Act 1988.
PIC means the Police Integrity Commission constituted under the Police Integrity Commission Act 1996.
PIC Inspector means the Inspector of the Police Integrity Commission appointed under the Police Integrity Commission Act 1996.
PIC officer means an officer of the Commission, as defined in the Police Integrity Commission Act 1996.
PICI officer means an officer of the Inspector, as defined in the Police Integrity Commission Act 1996.
principal officer of a public authority includes:
(a) for the Department of the Legislative Assembly—the Clerk of the Legislative Assembly and the Speaker of the Legislative Assembly, and(b) for the Department of the Legislative Council—the Clerk of the Parliaments and the President of the Legislative Council, and(c) for the Department of Parliamentary Services—the Speaker of the Legislative Assembly, the President of the Legislative Council and the Executive Manager of the Department.public authority means any public authority whose conduct or activities may be investigated by an investigating authority, and includes (without limitation) each of the following:
(a) a Division of the Government Service,(b) a State owned corporation and any subsidiary of a State owned corporation,(c) a local government authority,(d) the NSW Police Force, PIC and PIC Inspector,(e) the Department of Parliamentary Services, the Department of the Legislative Assembly and the Department of the Legislative Council.public interest disclosure means a disclosure satisfying the applicable requirements of Part 2.
public official—see section 4A.
relevant investigation Act means:
(a) in relation to an investigating authority other than the local government investigating authority—the Act that appoints or constitutes the investigating authority, and(b) in relation to the local government investigating authority—the Local Government Act 1993.Steering Committee means the Public Interest Disclosures Steering Committee established by section 6A.
(2) Notes included in this Act do not form part of this Act.
(1) In this Act, public official means:(a) an individual who is an employee of or otherwise in the service of a public authority, and includes (without limitation) each of the following:(i) a person employed under the Public Sector Employment and Management Act 2002,(ii) a member of Parliament, but not for the purposes of a disclosure made by the member,(iii) a person employed by either or both of the President of the Legislative Council or the Speaker of the Legislative Assembly,(iv) any other individual having public official functions or acting in a public official capacity whose conduct and activities may be investigated by an investigating authority,(v) an individual in the service of the Crown, or(b) an individual who is engaged by a public authority under a contract to provide services to or on behalf of the public authority, or(c) if a corporation is engaged by a public authority under a contract to provide services to or on behalf of the public authority, an employee or officer of the corporation who provides or is to provide the contracted services or any part of those services.(2) Without limiting subsection (1) and to avoid doubt, particular examples of public officials are as follows:(a) a volunteer rural fire fighter who is an officer or other member of a rural fire brigade under the Rural Fires Act 1997,(b) a volunteer officer or volunteer member of an SES unit (within the meaning of the State Emergency Service Act 1989),(c) an officer of the Royal Society for the Prevention of Cruelty to Animals, New South Wales who is an inspector under the Prevention of Cruelty to Animals Act 1979,(d) a person who is employed by a management company for a managed correctional centre (within the meaning of the Crimes (Administration of Sentences) Act 1999) to perform duties at the correctional centre and who is authorised under section 240 of that Act to perform those duties,(e) an accredited certifier (within the meaning of the Environmental Planning and Assessment Act 1979).(3) A person who is a public official referred to in subsection (1) (b) or (c) is taken, for the purposes of this Act, to belong to the public authority with whom the relevant contract is made.
5 Relationship of this Act and other Acts
(1) This Act prevails, to the extent of any inconsistency, over the provisions of any investigation Act.(2) However, nothing in this Act otherwise limits or affects the operation of any Act or the exercise of the functions conferred or imposed on an investigating authority or any other person or body under it.(3) Nothing in this Act (except section 13 (2), (4) and (4B)) authorises an investigating authority to investigate any complaint that it is not authorised to investigate under the relevant investigation Act.
This Act binds the Crown in right of New South Wales.
(1) There is established by this Act a Public Interest Disclosures Steering Committee consisting of the following members:(a) the Ombudsman, who is to be the chairperson of the Steering Committee,(b) the Director-General of the Department of Premier and Cabinet,(c) the Auditor-General,(d) the Commissioner for the Independent Commission Against Corruption,(e) the Commissioner for the PIC,(f) the local government investigating authority,(g) the Commissioner of Police,(g1) the Information Commissioner,(g2) the Public Service Commissioner,(h) such other members as may be prescribed by the regulations.(2) The functions of the Steering Committee are:(a) to provide advice to the Minister on the operation of this Act and recommendations for reform, and(b) to receive, consider and provide advice to the Minister on any reports provided by the Ombudsman in the exercise of functions under section 6B or as referred to in section 31A.(3) A member of the Steering Committee may appoint a nominee to act in the place of the member (either generally or for a particular purpose) and may revoke any such appointment. While acting in the place of a member, the member’s nominee has all the functions of the member (including the functions of chairperson in the case of the Ombudsman’s nominee) and is taken to be a member.(4) The quorum for a meeting of the Steering Committee is 4 members of the Committee of whom 2 must be the Ombudsman and the Director-General of the Department of Premier and Cabinet (or their nominees).(5) The Steering Committee is to determine its own procedures.(6) The Ombudsman (as chairperson of the Steering Committee) is to prepare an annual report of the Steering Committee’s activities and any recommendations made to the Minister during the reporting period of 12 months ending on 30 June in each year.(7) The annual report is to be prepared and provided to the Minister as soon as practicable after the end of the reporting period and is to be tabled by the Minister in each House of Parliament as soon as practicable after the Minister receives it.
6B Oversight of Act by Ombudsman
(1) The Ombudsman has the following functions in connection with the operation of this Act:(a) to promote public awareness and understanding of this Act and to promote the object of this Act,(b) to provide information, advice, assistance and training to public authorities, investigating authorities and public officials on any matters relevant to this Act,(c) to issue guidelines and other publications for the assistance of public authorities and investigating authorities in connection with their functions under this Act,(d) to issue guidelines and other publications for the assistance of public officials in connection with the protections afforded to them under this Act,(e) to monitor and provide reports (monitoring reports) to Parliament on the exercise of functions under this Act and compliance with this Act by public authorities (other than investigating authorities in respect of their functions as investigating authorities),(f) to audit and provide reports (audit reports) to Parliament on the exercise of functions under this Act and compliance with this Act by public authorities (other than investigating authorities in respect of their functions as investigating authorities),(g) to provide reports and recommendations to the Minister about proposals for legislative and administrative changes to further the object of this Act.Note. The Ombudsman is also chairperson of the Steering Committee.(2) A monitoring report is to be provided once every 12 months. An audit report is to be provided whenever the Ombudsman considers it desirable to do so and at least once every 12 months.(3) The Ombudsman must, as soon as practicable after 30 June in each year, prepare and provide a report to Parliament on the Ombudsman’s activities under this section for the preceding 12 months.(4) A report to Parliament under this section can be provided by being included in the Ombudsman’s annual report under section 30 of the Ombudsman Act 1974 or can be provided as a separate report and provided to the Presiding Officer of each House of Parliament.(5) Section 31AA of the Ombudsman Act 1974 applies to a report to Parliament under this section as if the report were a report made or furnished under Part 4 of that Act.
6C Provision of information to Ombudsman for audit purposes
(1) For the purposes of an audit under section 6B, the Ombudsman may require the principal officer of or who constitutes a public authority:(a) to give the Ombudsman a statement of information, or(b) to produce to the Ombudsman any document or other thing under the person’s control, or the production of which the person may, in an official capacity, reasonably require, or(c) to give the Ombudsman a copy of any such document.(2) This section does not apply to the principal officer of the Department of Parliamentary Services, the Department of the Legislative Assembly or the Department of the Legislative Council.(3) A requirement under this section must be in writing, must specify or describe the information, document or thing required, and must fix a time and specify a place for compliance.(4) It is the duty of the principal officer of or who constitutes a public authority to comply with any requirement of the Ombudsman under this section.(5) A provision of any Act or law that prevents or restricts access to records or disclosure of information (other than section 22 or 23 of this Act) does not prevent a person from complying, or affect the person’s duty to comply, with a requirement of the Ombudsman under this section.(6) Anything done by a person in compliance with a requirement of the Ombudsman under this section:(a) does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct, and(b) does not give rise to any liability for defamation or other civil liability.
6CA Reports to Ombudsman by public authorities
(1) Each public authority must provide a report under this section to the Ombudsman for each 6 month period.(2) The report is to provide statistical information on the public authority’s compliance with its obligations under this Act during the 6 month period to which the report relates.(3) The report is to be provided to the Ombudsman within 30 days after the end of the 6 month period to which the report relates, or by such later time as the Ombudsman may approve.(4) The regulations may make provision for or with respect to:(a) the statistical information that is to be provided in a report under this section, and(b) the form in which such a report is to be provided.(5) In this section, 6 month period means the period of 6 months ending on 30 June and 31 December in any year.
6D Public interest disclosures policies and guidelines
(1) Each public authority must have a policy that provides for its procedures for receiving, assessing and dealing with public interest disclosures.(1A) Such a policy must provide that a copy of the policy and an acknowledgment, in writing, of the receipt of the disclosure is to be provided to a person who makes a public interest disclosure, within 45 days after the person makes the disclosure.(2) The Ombudsman may adopt guidelines for the procedures of public authorities for receiving, assessing and dealing with public interest disclosures. The guidelines may include a model policy that provides for those procedures.(3) A public authority must have regard to (but is not bound by) the Ombudsman’s guidelines in formulating a policy for the purposes of this section.(4) Subsection (1A) does not apply in relation to a public interest disclosure:(a) made by a public official in performing his or her day to day functions as that public official, or(b) otherwise made by a public official, under a statutory or other legal obligation.
6E Responsibility of head of public authority
(1) The head of a public authority is responsible for ensuring that:(a) the public authority has the policy required by section 6D, and(b) the staff of the public authority are aware of the contents of the policy and the protections under this Act for a person who makes a public interest disclosure, and(c) the public authority complies with the policy and the authority’s obligations under this Act, and(d) the policy designates at least one officer of the public authority (who may be the principal officer) as being responsible for receiving public interest disclosures on behalf of the authority.(2) In this section, head of a public authority means:(a) for a local government authority—the General Manager of the authority, or(b) for the Department of the Legislative Assembly—the Speaker of the Legislative Assembly, or(c) for the Department of the Legislative Council—the President of the Legislative Council, or(d) for the Department of Parliamentary Services—the Speaker of the Legislative Assembly and the President of the Legislative Council, or(e) for a Division of the Government Service—the Division Head in relation to the Division, or(f) a person who is prescribed by the regulations as the head of a public authority for the purposes of this section, or(g) for any other public authority—the chief executive officer or other principal officer of the authority.