PID Act 1994 and PID Act 2022: The must-know changes to key provisions

The PID Act 2022 is far more complicated than the PID Act 1994:

• Instead of 1 category of PID consisting of  4 types PIDs (by public officials or by contractors to public authorities and investigating authorities, PIDs by public officials as part of their functions or under legal obligations, and PIDs to MPs or Journalists), the new Act has 3 categories of PIDs (Voluntary, Witness and Mandatory) and distinguishes between  12 types of Voluntary PIDs and 2 types of Witness PIDs (based on the applicable criteria, procedures to be applied and/or the protections available)
• The procedures for dealing with various types of PIDs are convoluted
• The drafting is far more legalistic.

There are far more statutory PID responsibilities on each agency and the ‘head of agency’. The primary responsibilities under the PID Act 1994 have been more than doubled under the new Act, including:

• Comprehensive and ongoing training and awareness obligations in relation to most staff
• Obligations to provide significantly more extensive and detailed information to the makers of Voluntary PIDs and the NSW Ombudsman
• An obligation to undertake steps to assess and minimise the risk of detrimental action being taken against a person as a result of the making of a Voluntary PID
• A requirement that all contracts or subcontracts under which a person or body is engaged to provide services on behalf of an agency include a series of terms requiring the engaged person or body to, amongst other things:
  • Ensure all individuals involved in providing services under the contract are made aware they are ‘public officials’ for the purposes of the PID Act, how to make a Voluntary PID, the contracting agency’s PID Policy, etc
  • Notify the contracting agency of any Voluntary PID they become aware of, and any serious wrongdoing committed or alleged to be committed by an individual providing services under the contract

The criminal penalties and civil liability provisions have been significantly strengthened:

• Criminal offence: The test has been lowered from detrimental action being ‘substantially in reprisal’ for a PID to merely being ‘a contributing factor’. A reverse onus of proof applies.

• Criminal offence: A new detrimental action offence has been added to cover investigators of serious wrongdoing. The relevant test is also ‘a contributing factor’ and a reverse onus of proof applies.
• Criminal penalties: The potential penalty for taking detrimental action has been doubled from $11,000 to $22,000 and from 2 years imprisonment to 5 years.
• The test in proceedings seeking damages for injury, damage or loss been lowered from detrimental action being ‘substantially in reprisal’ for a PID to merely being ‘a contributing factor’ and a reverse onus of proof now applies. Under the new Act a court can make an order that the employer of a person found to have taken detrimental action can be made liable to pay the damages, in whole or in part.
• Compensation for detrimental action arising out of a failure to manage risk: A new liability provision has been added where a person suffers injury, damage or loss as a result of an agency failing to take steps to assess and minimise the risk of detrimental action. A reverse onus of proof applies.
• Injunctions: An application for an injunction in relation to the commission or possible commission of a detrimental action offence can now be made by the maker of a PID or another person against whom detrimental action has been or may be taken.

Almost all employees of an agency will have statutory obligations under the new PID Act:

• Managers: Voluntary PIDs can be ‘made’ to the ‘managers’ of an agency (defined very broadly). The criminal offence and civil liability provisions in the Act apply when a Voluntary PID is ‘made’ to a ‘manager’, whether or not the maker of the disclosure or the manager realise that the information constituted a Voluntary PID.
• Disclosure officers: The ‘disclosure officers’ for an agency will include the most senior ongoing employee who ordinarily works at each agency ‘worksite’ (undefined) at which more than 1 person is employed.

The categories of conduct that can be the subject matter of a Voluntary PID have been significantly broadened. For example, under the 1994 PID Act ‘maladministration’ was defined to be conduct of a ‘serious nature’. Under the 2022 Act, this category of conduct has been renamed ‘serious maladministration’ but redefined to be conduct ‘other than conduct of a trivial nature’.

The number of disclosures made under the new Act will most likely be significantly greater than under the 1994 Act due to:

• The broader scope of some of the categories of conduct under the new Act by the inclusion of references to ‘other than conduct of a trivial nature’ into the definitions of ‘serious maladministration’, ‘government information contravention’ and the definition of the new ‘privacy contravention’ category of conduct.
• Greater awareness of the Act amongst staff and contractors as a result of the PID training and awareness obligations imposed on agencies.
• The new Mandatory PID and Witness PID categories of PIDs. Including that any ‘public official’ who discloses any information in an ‘investigation’ (very broadly defined) of ‘serious wrongdoing’, at the request of or in response to a requirement of the person or agency conducting the ‘investigation’, has made a Witness PID.
• The obligations imposed on contractors and sub-contractors as detailed in point two (2).

The key resource impacts of the new PID Act are likely to relate to:

• Training and awareness: The ongoing requirement to train all managers and all disclosure officers, and to ensure the awareness of all employees and persons in the service of an agency (including the staff of contracting persons and bodies).
• Numbers of disclosures: The broader scope of the conduct that can be the subject of a PID, the comprehensive training and awareness obligations and the new provisions to be incorporated into agency service contracts are likely to increase the numbers of PIDs.
• Performance management of under-performing staff: Given that a significant proportion of PIDs are triggered by perceived unwarranted performance management action, managers need to be trained in the management of under-performing staff and related difficult conversations.