Today’s correspondent asks me to

…  explain section 24 of the PID Act and how it relates to the following.

In 2023 I was stood down from work for practicing my HSR role under the WHS Act. The public servants who perpetrated the standdown breaching NSW and Federal law were not addressed by Safework or the DPP.

Complaints to the NSW Premier and to the Emergency services minister saw the complaint go to the Ombudsman’s department for investigation. The Ombudsman has stated that the complaint does not fall within section 24 of PID act and therefore the matter has ceased.

Safework State Inspector put the matter up for prosecution under Part 6 of the WHS Act…

I made a PID to the minister for emergency services and to the Premier yet this is not considered a PID.

The Public Interest Disclosure Act 2022 (NSW) s 24 defines what is a voluntary public interest disclosure as compared to a ‘witness public interest disclosure’ or a ‘a mandatory public interest disclosure’ (s 21). We can accept that if my correspondent made a public disclosure it was a voluntary one, that is not however the point.

Section 26 is the relevant section as it says what is the content of a public interest disclosure.  Section 26(1) says ‘A disclosure complies with this section if the maker of the disclosure honestly, and on reasonable grounds, believes the disclosure shows or tends to show serious wrongdoing.’  Serious wrongdoing is defined (s 13) as:

(a)  corrupt conduct,

(b)  a government information contravention,

(c)  a local government pecuniary interest contravention,

(d)  serious maladministration,

(e)  a privacy contravention,

(f)  a serious and substantial waste of public money.

Taking action against a Health and Safety Representative for exercising his or her functions under the Work Health and Safety Act 2011 (NSW) may be a breach of that Act (see ss 104 and 105) but that does not make it any of the matters listed in s 13. Further, s 26(3) specifically says

A disclosure does not comply with this section if the information disclosed—

(a)  concerns only a grievance about a matter relating to the employment or former employment of an individual, and

(b)  either—

(i)  does not have significant implications beyond matters personally affecting or tending to personally affect the individual, or

(ii)  relates to a disagreement with the taking or proposed taking of reasonable management action.

My correspondent may think the way he or she was treated has ‘significant implications’ beyond their personal position but the Ombudsman may not have agreed.

Conclusion

I would infer that Ombudsman may have taken the view that there was no Public Interest Disclosure as the allegation that ‘I was stood down from work for practicing my HSR role under the WHS Act’ did not disclose any of the matters listed in s 13 and was specifically excluded by s 26(3).  The appropriate remedy (if any) would be found in a complaint to the work health and safety regulator. We’re told ‘Safework State Inspector put the matter up for prosecution…’ but not what the outcome of that was.  Whatever the outcome that is the appropriate place to look for a remedy.

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