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Thursday, June 30, 2011

NSW Premier lauds whistleblowers, and ups the ante on protection reform.

In contrast to the "in the fullness of time" approach to integrity of government and associated reforms adopted by Victorian Premier Baillieu, NSW Premier O'Farrell is moving right along on some fronts at least, introducing in Parliament this week foreshadowed changes to whistleblower protection law and to the Independent Commission Against Corruption. During his speech the Premier made specific mention of several whistleblowers including Gillian Sneddon whose actions in speaking up led to the jailing of the former Labor Minister for Aboriginal Affairs:
Her case is symptomatic of Labor's treatment of whistleblowers, whether it be the nurses who exposed problems at Camden and Campbelltown hospitals or the brave Bimla Chand, who exposed systematic bullying at RailCorp. Labor's treatment of people who stood up for the public good, who stood up for their beliefs, was nothing short of shameful and every single member of the Labor Party in this place ought to hang their heads in shame.
Ms Chand has been a self-represented litigant in cases against Railcorp in various courts and tribunals in recent years, most recently two weeks ago losing an appeal on a freedom of information matter in the NSW Court of Appeal, with costs awarded against her. Earlier in the year the Court of Appeal dismissed an appeal by her against an Administrative Decisions Tribunal decision that certain claims of sexual harassment and victimisation were not within jurisdiction, and others were not substantiated. An appeal against the  decision of the ADT Appeal Panel to award costs against her in the same matter was also dismissed by the Court of Appeal- with costs awarded against her. In another ADT Appeal Panel decision President O'Connor gave this history:
Ms Chand was employed by the agency between 2000 and 2005. Around 2001 she made internal complaints relating to the conduct of other employees that she considered involved corrupt practices. Later she took leave on medical advice. The agency terminated her employment in 2005 on medical grounds.
3 Ms Chand has brought various proceedings against the agency. She contested her termination in the Australian Industrial Relations Commission. In this Tribunal’s Equal Opportunity Division she sued the agency over alleged sexual harassment by fellow employees during her employment and over alleged victimisation for making those complaints. As to these matters, see Chand v State Rail Authority of NSW [2007] AIRC 911 (21 November 2007), and Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27 (30 April 2009). There is also a reference in the agency’s material to proceedings before the Transport Appeals Board.
After this long and expensive run, Ms Chand now appears to have a sympathetic supporter in high places.

As the Premier outlined, the Public Interest Disclosures Amendment Bill 2011
  • expands the type of disclosures that can be made to the Chief Executive, Local Government, in the Department of Premier and Cabinet regarding wrongdoing by local councils. Currently the Act only permits public interest disclosures to be made directly to the chief executive in relation to serious and substantial waste of local government money. As the Division of Local Government can investigate a range of other conduct by local councils, the Government considers that public officials should be able to disclose a wider range of wrongdoing directly to the head of that division and receive the protections under the Act. To implement this, the bill will also allow the chief executive to receive disclosures about corrupt conduct, maladministration, breaches of pecuniary interest obligations under the Local Government Act and a failure to exercise functions properly in accordance with the Government Information (Public Access) Act 2009 by councils.
  • imposes express statutory obligations on the heads of public authorities. These include responsibility for ensuring that the public authority has a public interest disclosure policy, that staff are aware of the policy and the protections of the Act, and that the public authority complies with the policy and its obligations under the Act. Placing these obligations in legislation will assist in emphasising the importance of top-down support for public officials who make public interest disclosures. It is also proposed to empower the Ombudsman to assist in resolving certain disputes that might arise as a result of a public official making a public interest disclosure. New regulation-making powers have been included in the bill for this purpose. 
  • will also improve the feedback from agencies to whistleblowers about their concerns. Public authorities will be required to send a copy of the agency's policy to a person who has made a public interest disclosure and to acknowledge receipt of a disclosure within 45 days. This requirement will need to be included in the public authority's public interest disclosures policy.
The bill also provides for the Information Commissioner to be a member of  the Public Interest Disclosures Steering Committe, as public interest disclosures can be made to the Information Commissioner regarding a failure to exercise functions properly in accordance with the Government Information (Public Access) Act 2009. Current  members are the Ombudsman, as chairperson, the Director General of the Department of Premier and Cabinet, the Auditor-General, the Commissioner of the Independent Commission Against Corruption, the Commissioner for the Police Integrity Commission, the Chief Executive, Local Government, and the Commissioner of Police. The role of the steering committee is to provide the Premier with advice on the operation of the Act and recommendations for reform.

Among a number of changes to the ICAC, the Independent Commission Against Corruption Amendment Bill 2011 will  permit reports and findings of the Inspector of the Independent Commission Against Corruption to be published more broadly. The Premier said the amendments will clarify that the inspector may communicate his findings and recommendations to the ICAC commissioner, ICAC officers, complainants and any other affected parties for the purpose of resolving a complaint or dealing with a matter. The inspector will also have broader powers to report on his activities to Parliament. 

(Update: Parliament passed the bills in September 2011.)


  1. Anonymous9:34 pm

    So, have I missed something? When will all this start?

  2. The amendments were introduced into the Assembly this week but are yet to pass. See

    For changes in legislation that were passed last year, some of which come into effect today see