Core concepts in the PID Act

Why is it important to know whether a person is a ‘public official’ in the context of the PID Act?

The PID Act is designed to encourage ‘public officials’ to report serious wrongdoing and to protect them when they do.

Whether a person is a ‘public official’ is therefore a central concept under the PID Act. When a report of wrongdoing is made, it is essential to consider whether the person making the report is a ‘public official’, in order to determine whether the PID Act applies. To be a voluntary public interest disclosure (PID) or a mandatory PID, the report must have been made by a public official.

The PID Act and all its protections will still apply if, after making the PID, the maker ceases to be a public official. Unlike voluntary and mandatory PIDs, witness PIDs can be made by any person, whether or not they are a public official. Witness PIDs arise when a person is requested or required to provide information in an investigation of serious wrongdoing.

Important note: If a person makes a report of serious wrongdoing that would be a voluntary PID but for the fact that the person is not a public official, the head of an agency has the power to deem the report to be a voluntary PID under section 29 of the PID Act. This might be done if, for example, the person making the report is usually a public official, but was not technically a public official as defined in the PID Act at the time they made their report — for example, because they happened to be between jobs at that time, or had recently been made redundant.

The meaning of ‘public official’ is also important in the PID Act because some of the categories of serious wrongdoing that are able to be reported as a PID refer to the conduct of a ‘public official’. For example, serious maladministration is defined as certain conduct by ‘an agency or public official’. For this reason, if a report is made about suspected serious maladministration by an individual, both the person making the report and the person about whom the report is made will need to be public officials for the report to be a voluntary PID.

Definition of ‘public official’

‘Public official’ is defined in section 14 of the PID Act as follows:

1. a person employed in or by an agency or otherwise in the service of an agency,
2. a person having public official functions or acting in a public official capacity whose conduct or activities an integrity agency is authorised by another Act or law to investigate
3. an individual in the service of the Crown,
   
4. a statutory officer,
   
5. a person providing services or exercising functions on behalf of an agency, including a contractor, subcontractor or volunteer,
   
6. if an entity, under a contract, subcontract or other arrangement, is to provide services on behalf of an agency or exercise functions of an agency in whole or in part—an employee, partner or officer of the entity who is to be involved in providing the services in whole or in part, or who is to exercise the functions,
7. a judicial officer,
8. a member of Parliament, including a Minister,
9. a person employed under the Members of Parliament Staff Act 2013.

The following is a list of who is considered a public official under the PID Act with an accompanying outline and examples. A particular role may fall within more than one limb of the definition of public official. The examples given are not exhaustive.

The significance of the concept of 'agency'

Why is it important to know whether an entity is an ‘agency’ in the context of the PID Act?

The PID Act is concerned with reports about serious wrongdoing in or affecting the public sector, and the concept of ‘agency’ is the PID Act’s central concept for what is and is not covered as ‘public sector’.

As noted above, both voluntary and mandatory PIDs can generally only be made by ‘public officials’ and the main category of public officials covers those employed in or by an agency, or who are otherwise in the service of an agency. This means it is usually necessary to know whether the relevant entity is an ‘agency’, in order to know whether the relevant person is a public official.

The concept of agency is also important because PIDs are made to agencies and, when received, it is agencies that may have relevant obligations to investigate or otherwise deal with them, as well as to take other actions — such as to support and protect the PID maker and to report the PID to the Ombudsman.

Definition of ‘agency’

‘Agency’ is defined in section 16 of the PID Act to mean any of the following:

• a public service agency
• a group of staff comprising each of the following services, or a separate group of those staff:
  • the NSW Police Force
  • the Teaching Service of New South Wales
  • the NSW Health Service
  • the Transport Service of New South Wales
• a statutory body representing the Crown
• an integrity agency
• a public authority whose conduct or activities are authorised to be investigated by an integrity agency under another Act or law
• a state-owned corporation or its subsidiaries
• a Local Government Authority
• a Local Aboriginal Land Council
• the Department of Parliamentary Services, the Department of the Legislative Assembly and the Department of the Legislative Council.

There is power by Regulation to declare other bodies to be agencies. At the date of these guidelines, no regulations have been made to prescribe any additional agency.

A Minister’s office is not an agency for the purposes of the PID Act.

Why is it important to know whether a public official is ‘associated with’ an agency?

The term ‘associated with’ captures the relationship that agencies have with different public officials.

Understanding which public officials are associated with an agency allows the agency to know which public officials it has certain obligations towards. These include:

• the obligation to ensure public officials associated with the agency are made aware of the PID Act and the agency’s PID policy
• the obligation of the agency to take steps to manage the risk of detrimental action to a public official associated with the agency if they are known to have made a PID
• the obligation to report to the Ombudsman if there are allegations that a public official associated with the agency has been threatened with, or is the subject of, detrimental action

Which public officials are associated with which agencies?

The simplest and largest category of public officials associated with an agency will usually be the agency’s employed staff. Staff employed by an agency are ‘associated with’ the agency.

The term ‘associated with’ is defined in section 20(5) of the PID Act. A public official is ‘associated with’ the agency if they:

• constitute the agency (that is, if the agency comprises just one person)
• are an employee or are otherwise in the service of the agency
• provide services or exercise functions on behalf of the agency, including as a contractor, subcontractor or volunteer
• are an employee, partner or officers of an entity that provide services, under contract, subcontract or other arrangement, on behalf of the agency or exercises the function(s) of the agency, and is involved in providing those services or exercising those functions (for example, employees of an NGO contracted to exercise the function(s) on behalf of an agency), or
• are declared by the PID Regulations to be associated with the agency.

For instance, there are public officials who are directly employed and work in the agency and there may also be public officials working in contracted entities (such as NGOs) who provide services or exercise functions on behalf of the agency.

Both these types of public officials can make PIDs, and both will be considered to be associated with the agency for the purpose of the PID Act.

Why is it important to know who a public official’s ‘manager’ is?

Managers have obligations under the PID Act, which includes receiving and passing on voluntary PIDs from staff they supervise.

Managers also play an important role in creating a culture within their team that encourages and facilitates the making and appropriate handling of PIDs and other complaints about wrongdoing.

If a manager receives a disclosure from someone they supervise, and it appears to have the features of a PID, they must communicate the disclosure to a disclosure officer for the agency where the manager or the maker works.¹

Definition of ‘manager’

Under section 15 of the PID Act, there are different meanings of ‘manager’ for different types of public officials:

• For police officers, their manager is a police officer who has the rank of sergeant or above and is more senior in rank than the police officer.
• For ministerial staff or those working in other political offices (under the Members of Parliament Staff Act 2013), their manager will be the chief of staff of their office.
• For individual contractors, subcontractors or volunteers providing services or exercising functions on behalf of an agency, their manager is taken to be the public official in that agency who oversees those services or functions, or who manages the relevant contract or volunteering arrangement.
• For staff of entities that are contracted to provide services or exercise functions on behalf of an agency, their manager is taken to be the public official in that agency who oversees those services or functions, or who manages the relevant contract.
• For all other public officials, their manager is the person who directly or indirectly supervises them.

For most public officials, their ‘manager’ will generally be obvious — the person in the organisational structure who is identified as their immediate ‘boss’. This is the person who assigns them work tasks, undertakes performance reviews, approves their leave, and so on. In the common language of public sector roles, if a person is your ‘direct report’ then you are their manager.

However, under the PID Act, a person’s manager will also include any other person who directly or indirectly supervises them.

This means that public officials can (and in most cases will) have more than one manager.

Given the PID Act is beneficial legislation, designed to facilitate the making of public interest disclosures, it is appropriate to take a broad interpretation when considering whether someone ‘directly or indirectly supervises’ another (and is therefore a ‘manager’ of them).

Indirect supervision

Because managers include those who ‘indirectly supervise’, if a person is your ‘indirect report’ (that is, a person who reports to a manager who is your direct report) then you will also likely be considered a manager of that person under the PID Act. This means that the head of a unit or branch, who indirectly supervises everyone in the unit or branch, will be considered a manager of all staff in the unit or branch.

Matrix-style structures

In addition, if a person is working under matrix-style structures, where they permanently report to a functional manager, but where they are formally assigned to multi-functional project teams where they are supervised by different project leads, then both the functional manager and the project lead of the relevant project/s will be ‘managers’ of the person under the PID Act. This is because both the functional manager and the project manager will be supervising the person in some respects.

Shift workers

Furthermore, if a person has a different supervisor depending on what shift they work, but that person is not typically their supervisor for HR purposes, they will still be considered their manager for the purpose of the PID Act. This is important, because it ensures that people who work on shifts always have a manager to whom they can make a report.

Working alongside

However, simply because a person is working with or alongside more senior people on matters or tasks will not necessarily make the more senior person their manager. For example, if a legal officer is tasked (by their legal manager) with providing advice to a senior officer of an operational unit, that does not mean that the operational unit officer is now ‘directly or indirectly supervising’ the legal officer in a way that would lead to them be considered a ‘manager’ of the legal officer. To ‘supervise’ another person, suggests there must an ability, at least to some extent, to both observe and direct, the person’s work.

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^1. Public Interest Disclosures Act 2022, s 51(1)

Why is it important to know what a ‘disclosure officer’ is?

To be a PID, a report of serious wrongdoing must generally be made to a person’s own manager, or to an agency’s disclosure officer. Even when a PID is made to a manager, the manager’s role is then to ensure that the PID is reported to a disclosure officer.

Disclosure officers are therefore central players under the PID Act. If a public official makes a report about serious wrongdoing, but the person they disclose the information to is not a disclosure officer (and not their own manager), then the report will generally not be a PID and they will not be protected by the PID Act.

That makes it important that both public officials can easily find out who the disclosure officers for an agency are, and agencies make sure that there are sufficient disclosure officers who can be readily accessed by any public official who might need to make a PID.
The most senior disclosure officer will be the agency’s ‘disclosure co-ordinator’.

Agencies are required to ensure that their disclosure officers are identified clearly in their PID policy, and that they are trained to identify PIDs and understand the agency’s obligations when it receives a PID.

Definition of ‘disclosure officer’

Disclosure officers are those identified as ‘disclosure officers’ in the agency’s PID policy, which can be found on the agency’s intranet and public website.

In addition to those listed in an agency’s PID Policy, the following people are also automatically considered to be disclosure officers:

• 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.²

It is mandatory for an agency to have a PID policy, and for that policy to provide contact details for its 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:

• any person employed in or by the agency
• any manager of a public official associated with the agency.

Important note: Reports made to the integrity agencies, such as the Independent Commission Against Corruption (ICAC) and the Ombudsman, also need to be made to their disclosure officers to be PIDs.

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^2. Public Interest Disclosures Act 2022, s 18.

Why is it important to know what a ‘permanently maintained worksite’ is?

Under the PID Act, as well as the head of the agency, the most senior ongoing officer at any worksite permanently maintained by the agency at which more than one person is employed, is also automatically designated as a disclosure officer.³ The purpose of this is to ensure that all public officials have access to someone in the agency, who is appropriately authorised and trained to receive PIDs.

Some agencies will only have one permanently maintained worksite — their 'head office’ — where the most senior ongoing officer will be the head of the agency. However, many agencies will have numerous permanently maintained worksites.

Accordingly, an agency will need to undertake a review to identify all of their permanently maintained worksites at which more than one person is employed. It must then identify the most senior ongoing employee for that worksite. Action will need to be taken to ensure that this senior employee is able to fulfil their functions as a disclosure officer — for example, by updating their role description and by ensuring they receive appropriate training.

Agencies can of course nominate other staff to be disclosure officers. Particularly for larger worksites it would be prudent to nominate and train disclosure officers in addition to the most senior ongoing employee. This will ensure that reporting avenues for staff are accessible and appropriate.

Likewise, even if an agency decides that a particular place of work is not ‘a permanently maintained worksite at which more than one person is employed’, the agency might still consider designating one or more disclosure officers for that place of work. Consistent with the PID Act’s objects, doing this might be appropriate if the workplace, albeit temporary, is substantial, engages large numbers of staff and/or involves the kind of work activities that could involve material risk of fraud or other serious wrongdoing.

What is a ‘permanently maintained worksite’?

The term ‘permanently maintained worksite' at which more than one person is employed’ is not defined in the PID Act. It should be given a common-sense and practical meaning, having regard to the obvious purpose of the provision — which is to encourage and facilitate the making of PIDs by ensuring that all public officials have easy access to at least one agency disclosure officer with whom they will be familiar.

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.
  
  However, the PID Act refers to worksites that are ‘permanently maintained’, where people ‘are employed’, and where there is at least one officer ‘ordinarily working’. In that context, the meaning of ‘worksite’ presumably has to refer to something that is able to be ‘maintained’, where people could be ‘employed’ and where people can ‘ordinarily work’.
  
  While still potentially very broad, this context suggests that ‘worksite’ is likely to be a narrower concept than just ‘any place where work is carried out’. Notably, it seems to generally suggest some sort of business premises.

• Is the worksite permanently maintained
  
  This does not necessarily mean the worksite will exist forever. Long-term office premises that are leased by an agency are clearly included in the concept of a permanent worksite. 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?
  
  This suggests more than just any place where people might happen to be doing work from time to time. Rather, it refers to a place of employment. It may be useful to consider whether, 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’. This cannot be the case if there are no ongoing employees who ordinarily work at the site.

Important note: A worksite may be permanently maintained even if it provides a hybrid working environment for staff (that is, one where staff are involved in a mix of working at the worksite and working from home). In that case, the agency will need to assess who is the most senior officer who ordinarily works at the site (and is therefore designated as a disclosure officer).

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^3. Public Interest Disclosures Act 2022, s 18(1)(b

Why is it important to know what an ‘integrity agency’ is?

A public official can make a PID to a disclosure officer of their agency or of any other agency. There is no requirement that a public official report serious wrongdoing to the 'right' agency for the report to constitute a PID.

The PID Act classifies certain agencies as ‘integrity agencies’. These are likely to be the external agencies to which a public official might wish to make a PID, outside of their own agency. Generally, PIDs would be expected to be directed to the most relevant integrity agency — for example, a report of corrupt conduct would be reported to the ICAC, a report of serious maladministration to the NSW Ombudsman, and a report of a government information contravention to the NSW Information and Privacy Commission. However, again, public officials are able to disclose any type of serious wrongdoing to any integrity agency. It does not need to be a report of the type of serious wrongdoing that the integrity agency typically investigates.

One way that an agency (including an integrity agency) might decide to deal with a PID it receives is to refer it to the most relevant integrity agency.

Definition of ‘integrity agency’

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, Industry 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

Integrity agencies under the PID Act