Public Interest Disclosures Act Changes for Councils: eAlert July 2011

Councils will need to address the changes to the Public Interest Disclosures Act which commenced on 1 July. In addressing the new law, councils also need to be aware of impending changes introduced by the new Coalition Government which are likely to be enacted when Parliament resumes in August.

What are the changes?

The changes to the Act seek to improve its effectiveness and provide better protection for public officials making protected disclosures. From a council's perspective, the material changes are:

• Each council is required to implement a policy which provides for procedures for receiving, assessing and dealing with protected disclosures.
• The Ombudsman now has responsibility for overseeing the Act. The powers of the Ombudsman will include the ability to conduct monitoring and auditing reports about council compliance with the Act and to require councils to produce requested information. 
• The consequences for persons taking reprisal action against whistleblowers will be more significant. In addition to an increase in criminal penalties, the taking of reprisal action will be deemed to be misconduct for the purposes of any disciplinary action and victims of reprisal action will have a statutory right to sue the perpetrator for damages.

The last week of Parliament for the session saw the new Coalition Government propose further changes to the Act under the Public Interest Disclosures Amendment Bill 2011. The most significant of the proposed changes is charging the General Manager with responsibility for ensuring the council's compliance with the Act and that staff are aware of the Act's protections. In addition, the Act's scope will be broadened to allow a wider range of protected disclosures to be made to the Director-General and to protect disclosures concerning breaches of the pecuniary interest provisions of the Local Government Act.

What do I need to do?

The recent changes require all councils to take positive steps towards compliance, particularly given that General Managers will soon have specific responsibility for ensuring compliance. At a minimum, councils will need to do the following: 

• Review (or establish) policy: All councils will need to either review their existing protected disclosures policy or implement such a policy. The Act requires that the policy must have regard to (but is not bound by) any guidelines published by the Ombudsman. Where a council's policy departs from the Ombudsman's model, it would be prudent to document the reasons for the departure.
• Conducting training: Besides covering the council's obligations under the Act, training programs should emphasise the increased protections for staff making disclosures and the new consequences for reprisal actions. A council's staff induction process will also need to cover public interest disclosures.
• Prepare for Ombudsman review: The Act requires the Ombudsman to undertake monitoring and auditing reports on at least an annual basis. Councils' processes for ensuring compliance should be documented to ensure that appropriate responses in relation to monitoring and auditing report requests can be provided to the Ombudsman.

Need to know more? 

Please contact our team below if you would like to discuss these changes in further detail.

Bruce Heddle | Partner                
Direct 61 2 8223 4129               
bruce.heddle@maddocks.com.au          

Darren Gardner |  Partner
Direct 61 2 8223 4103
darren.gardner@maddocks.com.au

Prue Burns | Partner                            
Direct 61 2 8223 4106
prue.burns@maddocks.com.au              

Scott Mannix | Special Counsel
Direct 61 2 9225 6274
scott.mannix@maddocks.com.au