6. How to make a report of serious wrongdoing

6.1  What is serious wrongdoing

Reports must be of one or more of the following categories of serious wrongdoing to be a voluntary PID (in addition to having the other features set out here). Serious wrongdoing is defined in the PID Act as:

• corrupt conduct — such as a public official accepting a bribe
• serious maladministration — such as an agency systemically failing to comply with proper recruitment processes when hiring staff
• a government information contravention — such as destroying, concealing or altering records to prevent them from being released under a Government Information Public Access application
• a local government pecuniary interest contravention — such as a senior council staff member recommending a family member for a council contract and not declaring the relationship
• a privacy contravention — such as unlawfully accessing a person’s personal information on an agency’s database
• a serious and substantial waste of public money — such as an agency not following a competitive tendering process when contracting with entities to undertake government work.

When you make your report, you do not need to state what category of serious wrongdoing you are reporting or that you are reporting serious wrongdoing.

6.2  Reports, complaints and grievances

When a public official reports suspected or possible wrongdoing in the public sector, their report will be a PID if it has certain features which are set out in the PID Act.

Some internal complaints or internal grievances may also be PIDs, if they have the features of a PID. If an internal complaint or grievance is a report of serious wrongdoing, we will consider whether it is a PID. If it is a PID, we will deal with it as set out in this policy, but we will also make sure we follow all relevant internal policies and procedures.

It is important that we quickly recognise that we have received a PID. This is because once a PID is received, the person who has made the report is entitled to certain protections and we have certain decisions that we must make on how we will deal with the PID and how we will protect and support the person who has made the report.

DCS and other agencies covered by this policy are committed to addressing concerns raised by you regardless of if they are defined as a PID. All concerns will be taken seriously and detrimental action against you for raising a concern in good faith will not be tolerated.

6.3  When will a report be a PID

There are three types of PIDs in the PID Act (see sections 21 to 24). These are: 

1. Voluntary PID: This is a PID where a report of serious wrongdoing has been made by the public official because they decided, of their own accord, to come forward and disclose what they know.
2. Mandatory PID: This is a PID where the public official has made a report about serious wrongdoing because they have a legal obligation to make that report, or because making that report is an ordinary aspect of their role or function in an agency.
3. Witness PID: This is a PID where a person discloses information during an investigation of serious wrongdoing following a request or requirement of the investigator.

This policy mostly relates to making a voluntary PID and how we will deal with voluntary PIDs. People who make a mandatory PID or a witness PID are still entitled to protection. More information about protections is available in the Protections section of this policy.

You can find more information about mandatory and witness PIDs in the Ombudsman’s guidelines Dealing with mandatory PIDs and Dealing with witness PIDs available on the Ombudsman’s website.

Voluntary PIDs are the kind of PIDs most people have in mind when they think about public interest reporting and ‘whistleblowing’.

They involve a public official making a report because they have information that they believe shows (or tends to show) serious wrongdoing, where they are not under a legal obligation to make that report and where it is not an ordinary part of their role to report such wrongdoing.

A report is a voluntary PID if it has the following five features, which are set out in sections 24 to 27 of the PID Act:

1. A report is made by a public official.
2. It is made to a person who can receive voluntary PIDs.
3. The public official honestly and reasonably believes that the information they are providing show (or tends to show) serious wrongdoing.
4. The report was made orally or in writing.
5. The report is voluntary (meaning it is not a mandatory or witness PID).

You will not be expected to prove that what you reported happened or is serious wrongdoing. You do have to honestly believe, on reasonable grounds, that the information you are reporting shows or tends to show serious wrongdoing.

If you report serious wrongdoing without any supporting information, you may be asked to provide further information. If you report anonymously and there is not enough information to investigate, we may not be able to investigate the report.

If we do not initially identify that your report was a voluntary PID, you will still be entitled to the protections under the PID Act from the time the report was first made.

If you make a report and believe we have made an error by not identifying that you have made a voluntary PID, you should raise this with a disclosure officer or person who advised you your matter will not be considered as a PID.

If you are still not satisfied with this outcome, you can seek an internal review, or we may seek to conciliate the matter. You may also contact the NSW Ombudsman. Further information on rights to internal review and conciliation is found in Review and Dispute Resolution section of this policy.

6.4  Who can make a voluntary PID

Any public official can make a voluntary PID — see Who does this policy apply to section of this policy for the definition of who is a public official.

A public official can make a PID about serious wrongdoing relating to any agency, not just the agency they are working for. This means that we may receive PIDs from public officials outside of DCS and the agencies covered by this policy.

It also means that you can make a PID to any agency, including an integrity agency like the Independent Commission Against Corruption (ICAC) and the NSW Ombudsman. Annexure A of this policy has a list of integrity agencies.

6.5  Who can I make a voluntary PID to

For a report to be a voluntary PID, it must be made to certain public officials as identified below.

a)  Making a report to a public official who works for DCS

You can make a report inside DCS to:

• Secretary of DCS.
• Head of an agency for whom DCS exercises PID Act functions.
• A Disclosure Officer for DCS or another agency for whom DCS exercises PID Act functions — information on disclosure officers and how to contact them can be found on the internets and intranets of DCS and these other agencies.
• Your manager — this is the person who directly, or indirectly, supervises you. It can also be the person who you directly, or indirectly, report to. If you have more than one manager, you may make the report to one manager. Your manager will make sure that the report is communicated to a disclosure officer on your behalf or may accompany you while you make the report to a disclosure officer.
• How to contact the DCS Integrity Hotline
  • Call 1800 577 112
  • Visit the DCS Integrity Hotline
  • Scan the QR Code using your phone’s camera and fill in the form.
     

b)  Making a report to a public officials outside of DCS

You can also make your report to a public official in another agency (meaning an agency you do not work for) or an integrity agency. These include:

1. the head of another agency — this means the head of any public service agency
2. an integrity agency — a list of integrity agencies is located at Annexure A of this policy
3. a disclosure officer for another agency — ways to contact disclosure officers for other agencies is in an agency’s PID policy which can be found on their public website
4. a Minister or a member of a Minister’s staff but the report must be made in writing.

If you choose to make a disclosure outside of DCS, it is possible that your disclosure will be referred to DCS so that appropriate action can be taken. The disclosure would still be considered to be and treated as a PID.

c)  Making a report to a Member of Parliament or journalist

Disclosures to MPs or journalists are different to other reports. You can only disclose a report of wrongdoing as a voluntary PID to an MP or journalist in the following circumstances:

1. You must have first made substantially the same disclosure (described here as a ‘previous disclosure’) to someone who can receive disclosures, and
2. The previous disclosure must be substantially true, and
3. You did not make the previous disclosure anonymously, and
4. You did not give a written waiver of your right to receive information relating to your previous disclosure and
5. You did not receive the following from the agency to whom the previous disclosure was made
   • notification that the agency to whom the previous disclosure was made will not investigate the serious wrongdoing and will also not refer the previous disclosure to another agency, or
   • the following information at the end of the investigation period:
     • notice of the agency to whom the previous disclosure was made decision to investigate the serious wrongdoing
     • a description of the results of an investigation into the serious wrongdoing
     • details of proposed or recommended corrective action because of the previous disclosure or investigation.

Investigation period means:

• after six months from the previous disclosure being made, or
• after 12 months if you applied for an internal review of the agency’s decision within six months of making the disclosure.

If all the above requirements are met, your disclosure to an MP or journalist may be a voluntary PID.

6.6  How can I make a voluntary PID

You can make a voluntary PID:

• in writing — this could be an email or letter to a person who can receive voluntary PIDs.
• orally — have a private discussion with a person who can receive voluntary PIDs. This can be face-to- face, via telephone or virtually.
• anonymously — write an email or letter or call a person who can receive PIDs to make a report without providing your name or anything that might identify you as the reporter of the report. A report will only be considered anonymous if there is no reasonable or practical way of communicating with the person making the report. Even if you choose to remain anonymous, you will still be protected under the PID Act. It may be difficult, however, for DCS to investigate the matter(s) you have disclosed if we cannot contact you for further information.
• to an integrity agency as listed in Annexure A of this policy.
• the DCS Integrity Hotline – which can be contacted via
  • Call 1800 577 112
  • Visit the DCS Integrity Hotline
  • Scan the QR Code using your phone’s camera and fill in the form.
     

6.7  What should I include in my PID report

You should provide as much information as possible so we can deal with the report effectively. The type of information you should include is:

• date, time and location of key events
• names of person(s) involved in the suspected wrongdoing, their role, title and how they are involved
• your relationship with the person(s) involved, such as whether you work closely with them
• your explanation of the matter you are reporting
• how you became aware of the matter you are reporting
• possible witnesses
• other information you have that supports your report.

6.8  What if I am not sure if my report is a PID

You should report all wrongdoing you become aware of regardless of whether you think it is serious wrongdoing. It is important for DCS to understand what is or may be occurring.

We are then responsible for making sure your report is handled appropriately under the PID Act, or if it is not a PID, in line with our other procedures. Even if your report is not a PID, it may fall within another one of the agency’s policies for dealing with reports, allegations or complaints.

6.9  Deeming that a report is a voluntary PID

The Secretary of DCS or their delegates can, in certain circumstances, determine that a report is a voluntary PID even if the report does not otherwise have all the features of a voluntary PID. This is known as the ‘deeming power’.

By deeming that a report is a voluntary PID, it ensures that reporters are provided with protections under the PID Act.

If you make a report that has not met all the requirements of a voluntary PID, you can refer your matter to Secretary of DCS or their delegates, to request that they consider deeming your report to be a voluntary PID.

A decision to deem a report to be a voluntary PID is at the discretion of Secretary of DCS or their delegates. For more information about the deeming power, see the Ombudsman’s guideline Deeming that a disclosure is a voluntary PID on the Ombudsman’s Office website.

6.10  Who can I talk to if I have questions or concerns

If you have any concerns or questions and wish to talk to someone, please contact the following: 

• PID disclosure officers – as listed on the DCS intranet for persons working for DCS. For other persons, details of disclosure officers are available upon request from fraudandcorruption@customerservice.nsw.gov.au
• The DCS Integrity Hotline – 1800 577 112
• NSW Ombudsman’s office – 1800 451 524
• NSW Ombudsman’s Whistleblower Support Line – 1800 716 766