Preparing for the commencement of the PID Act on 1 October 2023
This is the first instalment of a series of useful articles, training and quick guides which deal with the handling of information in the NSW Government. Topics will include Government information, privacy, standing order 52, Data Protection, legal professional privilege and much more.
With the upcoming commencement of the Public Interest Disclosures Act 2022 (PID Act), we have provided a useful checklist to help you get your agency ready for 1 October 2023:
1. Draft and adopt a PID Policy
|2. Identify your disclosure co-ordinator|
|3. Identify all disclosure officers|
|4. Identify all permanently maintained worksites|
|5. Identify all integrity agencies|
6. Ensure that you have a training regime in place for your staff, disclosure officers and disclosure co-ordinators
1. Draft and adopt a PID Policy
Under section 42 of the PID Act, all agencies must have a public interest disclosure policy (PID policy). The PID policy is required to provide contact details for the agencies’ disclosure officers. However, if an agency does not have a PID policy, or its PID policy does not enable disclosure officers to be contacted, then a disclosure officer is by default:
- any person employed in or by the agency
- any manager of a public official associated with the agency.
This default position results in onerous obligations, and can lead to significant confusion around reporting obligations under the PID Act. As such, it is of paramount importance that any agency subject to the PID Act ensures that it has adopted a PID policy.
Fortunately for agencies, the NSW Ombudsman has developed a model PID policy which is available on its website for agencies to use.
2. Identify your disclosure co-ordinator
The most senior disclosure officer will be the agency’s disclosure co-ordinator.
3. Identify all disclosure officers
Disclosure officers are the primary people to whom a report will be made to within an agency.
In addition to those people listed in an agency’s PID Policy as disclosure officers, the following people are also deemed to be disclosure officers under the PID Act:
- the head of an agency
- the most senior ongoing employee who ordinarily works at a permanently maintained worksite where more than one employee works
- the member of an unelected governing body within an agency.
It is important that agencies nominate a sufficient number of disclosure officers for the size of the agency, and within the permanently maintained worksites across the agency. The purpose of this is to ensure that public officials have sufficient access to report serious wrongdoing.
4. Identify all permanently maintained worksites
In reviewing premises to see if this provision applies to them, some relevant factors to consider include:
- Is it a worksite? Worksite appears to be a very broad term, perhaps similar to ‘workplace’ under the work health and safety legislation, which is defined to include any place where work is carried out, including any place where a worker may go or is likely to be while at work.
- Is the worksite permanently maintained? Long-term office premises that are leased by an agency are plainly included in the concept of a permanent work site. However, it does suggest that a temporary worksite established for a particular project is unlikely to be considered to be permanently maintained.
- Is it a place of employment? If asked, ‘where are you employed?’ the person could answer by referring to that worksite.
- Is it a place where there are ongoing employees ordinarily working at the site? A disclosure officer will be automatically designated for a worksite only if there is a senior officer there who is an ‘ongoing employee who ordinarily works at the site’.
5. Identify all integrity agencies
The following are integrity agencies as defined under section 19 of the PID Act:
- the Ombudsman
- the Auditor-General
- the Independent Commission Against Corruption
- the Law Enforcement Conduct Commission
- the Inspector of the Independent Commission Against Corruption
- the Inspector of the Law Enforcement Conduct Commission
- the Secretary of the Department of Planning and Environment (when exercising certain functions under the Local Government Act 1993)
- the Privacy Commissioner
- the Information Commissioner
- a person or body declared by the regulations to be an integrity agency.
6. Ensure that you have a training regime in place for your staff, disclosure officers and disclosure co-ordinator
All agencies subject to the PID Act must provide appropriate training to the head of agency/disclosure co-ordinator, disclosure officers for the agency and managers of public officials associated with the agency.
The PID Act training must be provided within a reasonable time after the person becomes associated with the agency and no later than the day that is the later of:
- six months after the commencement of the PID Act, or
- the day that is three months after the person commences in the relevant role.
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