Legislation to overhaul NSW whistleblowing laws has rejected a parliamentary committee’s recommendation which would have made it easier for NSW public officials to report wrongdoing to journalists.

The Public Interest Disclosures Bill 2021, introduced to parliament last week, implements all of the other recommendations of the 2017 Parliamentary Ombudsman Committee and represents what Ombudsman Paul Miller says is a “complete of the rewrite” of existing laws.

Mr Miller says the bill addresses many of the weaknesses of the current legislation, is simpler and easier to navigate, and contains fewer ‘trip hazards’.

However he indicated he was disappointed by the decision on reporting to the media.

Mr Miller says in a report tabled on Thursday that the committee considered the existing threshold for disclosures to the media  or a member of parliament was too high, and could discourage whistleblowers from making external reports after initial processes had failed.

“There are rare occasions where reporting outside the system – to the media or to a Member of parliament – may be appropriate,” he said in a statement.

“This can be a last resort avenue where internal systems of accountability have failed, and in that way they serve an important public function.”

‘Safe, easy, normal’

The draft legislation states as one of its objectives the promotion of “a culture in which public interest disclosures are encouraged”, and Mr Miller said a cultural shift is needed to make speaking up in the public sector an easy, normal and safe thing to do.

The Bill enables whistleblowers to make a public interest disclosure to their own manager, well as being able to report to the head of their agency or to agency-nominated officers.

It also allows whistleblowers to report wrongdoing directly to integrity agencies, extends whistleblower protections and imposes additional obligations on agencies to adopt whistleblowing policies and training.

Reporting to the media

Under current laws, a public official can only make a public interest disclosure to a journalist if it has been made through official channels six months earlier, if no investigation was undertaken, and if it was ‘substantially true’ – which means the wrongdoing had actually happened.

The committee had recommended removing the truth threshold so an official could make a disclosure as long as they “held on honest belief on reasonable grounds” that serious wrongdoing had occurred.

“This recommendation is not adopted in the Bill,” the report says.

“Instead, the thresholds for an external disclosure to constitute a PID remain effectively the same as they are under the current PID Act, including the requirement that the disclosure be ‘substantially true’.”

All public sector agencies affected

The report assesses the bill against the 38 recommendations made by the committee as well as recommendations in a separate report from the Parliamentary ICAC Committee report.

Mr Millar said all members of the PID Steering Committee had indicated their support for the Bill.

“We are confident that the Bill will better ensure that reports of wrongdoing are acted upon, and that reporters will be safer and feel more encouraged to come forward,” he said.

He said the legislation will affect all public sector agencies, statutory bodies, local councils and contracted service providers, which will need to develop and implement new policies and training.

This would require the development of detailed regulations and comprehensive guidance and training material, as well as additional resources for the Ombudsman’s office, Mr Miller said.

The new laws will come into force no later than 18 months after assent.

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