NSW Public Sector Whistleblower Protections: The Public Interest Disclosures Act 2022

New South Wales' Public Interest Disclosures Act 2022 protects public officials, contractors, subcontractors and volunteers who report serious wrongdoing about a NSW public sector agency, backed by a criminal offence carrying up to $22,000 in fines or 5 years' imprisonment for anyone who retaliates against them.

The Act and Who It Covers

The Public Interest Disclosures Act 2022 (NSW), No 14 of 2022, is the current law governing whistleblowing in the NSW public sector. It commenced on 1 October 2023, replacing the earlier Public Interest Disclosures Act 1994 (No 92 of 1994, itself originally named the Protected Disclosures Act 1994).

Section 14 defines who is protected, and it is deliberately broader than an employee-only scheme. Coverage includes a person employed in or by an agency, a person in the service of the Crown, a statutory officer, a judicial officer, an MP (including a Minister) and MP staff. It also extends to a person providing services or exercising functions on behalf of an agency, including a contractor, a subcontractor or a volunteer, and to an employee, partner or officer of an entity that provides services to an agency under contract or subcontract. Anyone doing work for a NSW public sector agency, not only its own staff, can fall within the Act's protection.

What You Can Disclose and to Whom

Section 13 defines 'serious wrongdoing' as one or more of: corrupt conduct, a government information contravention, a local government pecuniary interest contravention, serious maladministration, a privacy contravention, or a serious and substantial waste of public money.

The 2022 Act replaced the older model of reporting to a fixed list of 'investigating authorities' with a three-type disclosure structure:

• A voluntary PID (sections 24 to 27) is the classic case of a person choosing to speak up. It must generally be made to the person's manager, a disclosure officer of any agency, the head of any agency, or a Minister or ministerial staff member, in which case it must be in writing. A report to a journalist or an MP only qualifies in very limited circumstances.
• A mandatory PID (section 23) is made because the discloser is under a legal or role-based duty to report.
• A witness PID (section 22) is made while giving information to an investigation into serious wrongdoing. Unlike the other two types, a witness PID can be made by any member of the public, not only by a public official, as the NSW Ombudsman's own guidance confirms.

'Integrity agency' is defined broadly under section 19 and includes the Ombudsman, the Auditor-General, ICAC, the ICAC Inspector, the Law Enforcement Conduct Commission, the LECC Inspector, the Privacy Commissioner, the Information Commissioner, and certain local government planning-integrity roles. A discloser is not limited to reporting within their own agency; a PID can go to any of these bodies depending on the subject matter.

Protections and the Reprisal Offence

The Act calls retaliation a 'detrimental action offence' under section 33. The maximum penalty is 200 penalty units or imprisonment for 5 years, or both. NSW's penalty unit is fixed at a flat, non-indexed $110 under section 17 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which does not change by annual gazette the way most other Australian jurisdictions' penalty units do. That puts the maximum fine at 200 times $110, or $22,000, on top of the possible 5-year prison term.

The offence covers detrimental action taken against a person who has made a PID, against someone merely suspected or believed to have made or intend to make one, and against a person investigating serious wrongdoing. A mistaken belief that someone made a PID is not a defence to a claim they were targeted for it. The offence is indictable under section 33(3), and once the prosecution shows the conduct was not reasonable management action, the defence carries a reverse onus to establish otherwise.

If an agency has evidence that a detrimental action offence has occurred, section 34(1) requires it to refer that evidence to the Commissioner of Police, together with either the Law Enforcement Conduct Commission, for matters involving police or the Crime Commission, or ICAC for other cases, and to notify the NSW Ombudsman of the referral.

Confidentiality of Your Identity

Protecting a discloser's identity is not optional for an agency. Every agency's PID policy is required to include procedures for maintaining confidentiality in relation to voluntary PIDs and protecting the identity of the people who make them. The NSW Ombudsman's guidance confirms this obligation in plain terms and separately notes that making a PID carries an immunity from civil and criminal liability, including liability for breach of confidentiality, for the act of making the disclosure itself.

How a Disclosure Is Handled and Reviewed

The NSW Ombudsman describes itself as the lead oversight agency for the Act. Its functions include providing information, advice and assistance to agencies and public officials, auditing and monitoring how agencies exercise their functions under the Act, and publishing guidelines that agencies must follow. That does not make the Ombudsman the only body with a role. The wider set of integrity agencies recognised under section 19, including ICAC for corrupt conduct, the Auditor-General, the LECC, the Privacy Commissioner and the Information Commissioner, each assess and can investigate disclosures that fall within their own subject-matter jurisdiction. No 2024 to 2026 amendment to the Act's core disclosure, offence or oversight structure has been identified as of this page's research date, though that is not the same as an exhaustive legislative-history check.

If You Work for the Commonwealth or in the Private Sector

The PID Act 2022 only reaches NSW state and local government agencies and the people who work for or with them. A federal public servant reporting wrongdoing inside a Commonwealth department or agency is covered instead by the Commonwealth Public Interest Disclosure Act, explained on our Commonwealth public interest disclosure page, which has its own disclosure process, oversight bodies and reprisal offence. A private sector employee is covered by an entirely different regime under the Corporations Act, not by this Act at all. For the full picture of how the private, Commonwealth and state whistleblower regimes fit together, see our overview of whistleblower protection in Australia, or return to the Australia employment law hub for other workplace topics.