The Public Interests Disclosures Act sets in place a system for public officials to report serious wrongdoing in a way that minimises the risk of reprisal. The Act applies to all public authorities in NSW, including councils. All public authorities, including councils, are required to have a policy that explains how they will receive, assess and handle public interest disclosures under the PID Act.
Changes have been made to the PID Act that includes new roles and responsibilities for contractors when they enter into contracts with councils.
Section 82 of the New PID Act sets out the requirements of councils and contractors when doing business together:
s82 Agency service contracts
1. This section applies to a contract or subcontract (an agency service contract) under which a person or body is engaged to provide services on behalf of an agency (the contracting agency), including an engagement to exercise a function mentioned in section 81(3).
2. A contracting agency, person exercising the functions of a contracting agency or head contractor, as applicable, must not enter into an agency service contract on or after the day on which this section commences unless the terms of the contract require the engaged person or body to –
(a) ensure all individuals involved in providing services under the agency service contract are made aware of—
- the fact they are public officials for the purposes of this Act, and
- the matters mentioned in section 48(1)(a)–(c), and
(b) notify the contracting agency of a voluntary public interest disclosure of which the person or body becomes aware that complies with section 61(1)(b) in relation to the contracting agency, and
(c) notify the contracting agency of serious wrongdoing committed, or alleged to be committed, by an individual providing services under the agency service contract, and
(d) use the person or body’s best endeavours to assist in an investigation of serious wrongdoing if requested to do so by a person dealing with a voluntary public interest disclosure on behalf of an agency, and
(e) acknowledge the following—
- the contracting agency’s obligation to take corrective action under section 66,
- the contracting agency’s right to terminate the agency services contract in response to a finding of serious wrongdoing or other misconduct involving the person or body or an individual providing services under the agency service contract, and
(f) if the person or body subcontracts the agency service contract in whole or in part—ensure the subcontract contains terms binding the person or body engaged under the subcontract that are equivalent to the terms required by this section.
3. However, an agency service contract is not void or unenforceable merely because the terms of the contract do not comply with subsection (2).
4. The regulations may make further provision about terms that must, or must not, be included in an agency service contract or a class of agency service contracts.
Section 82 of the New PID Act commences on 1 October 2023. Councils will need to ensure that their contract templates are updated to comply with these new requirements.
LGP will be updating our customer contracts with the new Public Interest Disclosures requirements as we renew our panels. In the meantime, councils should ensure they comply with Section 82 of the New PID Act when engaging suppliers under LGP panels. One way to do this would be to add Special Conditions of Contract and include them in the Request for Quote and contract documentation.