NICC PID Policy and Procedure

People who report wrongdoing are giving agencies an opportunity to investigate a possible problem and take steps to deal with it.

PIDs are protected under the PID Act (the NSW Ombudsman is the lead agency for this Act), but they must be made to certain people under certain circumstances.

There are three types of disclosure:

1. Mandatory PIDs are reported as part of a public official’s legal obligation or role, such as when a principal officer reports corrupt conduct.
2. Witness PIDS involve the disclosure of information during an investigation into serious wrongdoing.
3. Voluntary PIDs occur when an individual comes forward on their own. Voluntary PIDs create obligations on agencies, which are outlined in this policy.

NICC obligations

All NICC and ONICC members must read and be familiar with this policy.

The NICC must also:

• Ensure disclosure officers and managers receive appropriate PID training (training must be completed within 6 months of 1 October and then every three years).
• Report certain public interest disclosure information to the NSW Ombudsman every six months
• Publish PID data in the NICC annual report.
• Build the NICC’s speak up culture and encourage frequent engagement with the NICC Code of Conduct and Ethics.

Making and receiving a PID

The NICC encourages its members to conduct themselves with the highest standards of integrity and accountability and feel confident that they will be supported to make a PID. NICC and ONICC members are also supported to confidentially approach their managers and designated disclosure officers if they are not sure what constitutes a PID. The NICC extends the same level of support and confidentiality to external public officials.

Serious wrongdoing

The NICC’s disclosure officers will ensure the identity of voluntary PID makers is protected. This includes limiting the number of people involved and access to files, not disclosing identifying information without the PID maker’s consent, ensuring anyone who knows the identity of the PID maker is reminded of their legal obligations, and keeping all information confidential unless that information is necessary for the report to be effectively dealt with.

Protecting PID makers

Detrimental action cannot be taken against PID makers or taken on the suspicion or belief that a person has made or will make a PID. Detrimental action is a criminal offence under the PID Act. It includes threats, intimidation, bullying and reputational damage. A NICC disclosure officer will assess the risk of detrimental action, speak frequently with the PID maker and take steps to minimise reprisal risks while a PID is being dealt with.

There are other protections too. PID makers are protected from criminal or civil liability, such as when having to disclose something that breaches their confidentiality duties. Public officials and agencies must not disclose information tending to identify a person as the maker of a voluntary PID unless doing so is permitted by the PID Act. In addition, the Attorney General can give the maker an undertaking that a disclosure of their own past conduct will not be used against them if a person discloses their own wrongdoing or misconduct while making a report.

Managing allegations of detrimental action

If a PID maker believes detrimental action has been or will be taken against them, the disclosure officer will:

• Respond to the PID-makers concerns and ensure they are kept informed throughout the process.
• Approach the defendant/relevant individuals to investigate the situation.
• Take immediate steps to stop the action and protect the PID maker.
• Refer the information to the principal officer to decide what course of action to take in the circumstances (see Assessing and responding to allegations of reprisal). This can include disciplinary action and/or suspension or referral to the appropriate enforcement agency as well as the NSW Ombudsman.
• Communicate the action or decision to the PID-maker.

Refer to the NSW Ombudsman’s guidance on how to manage allegations of detrimental action.

Managing a PID procedure

1. Assessment: A NICC disclosure officer will consider if the reported conduct constitutes serious wrongdoing and what category/s of wrongdoing it falls into. They will then apply the threshold test to confirm whether the report is an honest belief, made on reasonable grounds. and shows or tends to show one of the types of wrongdoing outlined in the PID Act. See Assessing whether a report is a PID.
2. Acknowledgement: The disclosure officer will acknowledge the PID within 45 days by way of an email based on the NICC PID acknowledgement template. If the report is not a voluntary PID, the disclosure officer will let the PID maker know that the PID Act does not apply to the report. This letter will also address how the NICC intends to deal with the concerns raised in the report.
3. Referral: The disclosure officer will check whether the PID should be referred to an integrity agency.
4. Action: If the report is not referred, the Chief Commissioner will decide what action to take, such as commencing an investigation. See Investigating PIDs. The Chief Commissioner will also consider the need for systemic changes within the NICC.

During the PID process, the disclosure officer will keep accurate and confidential records and communicate regularly with the PID reporter, providing an appropriate level of support and communicating every three months at a minimum (if the report is not anonymous).

The NSW Ombudsman can provide guidance and assistance: pid@ombo.nsw.gov.au.

Corrective action

The NICC will take corrective action if a PID is substantiated. This can include:

• a formal apology
• improving internal policies to adequately prevent and respond to similar instances of wrongdoing
• providing additional education and training to staff where required
• taking employment action against persons involved in the wrongdoing (such as termination of employment, relocation, a caution, or reprimand)
• payment of compensation to people who have been affected by serious wrongdoing or other misconduct.

Reviews and disputes

Voluntary PID makers can seek internal review and/or dispute resolution if they are unsatisfied with a decision made by the NICC.

For internal review a PID maker must apply in writing within 28 days of being informed of the NICC’s decision. The application should state the reasons why the PID maker consider sthe NICC’s decision should not have been made. They may submit relevant material with the application.

If a dispute arises between the NICC and a voluntary PID maker, the NICC may request the NSW Ombudsman conciliate the dispute. Conciliation is a voluntary process and will only be suitable for disputes where the NICC and the PID maker are willing to resolve the dispute.

Record keeping and reporting

The NICC keeps full and accurate records under the State Records Act 1998. To protect the confidentiality of disclosures, the NICC will restrict access to files where disclosure-related information is saved.

The NICC is obliged to report on the number of PIDs it receives each year in both its annual report and to the NSW Ombudsman. If a PID is not received the NICC will not make a report to the NSW Ombudsman.

The NICC will report to the Audit and Risk Committee on its compliance with this policy. This policy will be reviewed annually and as needed.