General Managers turned whistleblowers and the Public Interest Disclosures Act 1994
Since 1994 public officials who make allegations of corrupt conduct have been able to seek protection for their whistleblowing activity under the Public Interest Disclosures Act 1994 (PD Act).
Section 20 of the Act gives protection to a whistle-blower against reprisals. A person who takes detrimental action against another person that is substantially in reprisal for the other person making a public interest disclosure is guilty of an offence which can presently result in up to two years in prison and/or a maximum fine of 100 penalty units (or $11,000.00).
On 1 July 2011, the protection offered by s 20 was enhanced when s 20B came into effect, allowing an investigating authority or a public authority, acting with the approval of the Attorney General, to seek an injunction in the Supreme Court of New South Wales to prevent a breach of s 20.
Recently two Councils have invoked or threatened to invoke s 20B to protect their General Managers from alleged reprisal for having made disclosures to the Independent Commission Against Corruption (ICAC).
In each case, the councillors themselves had either attempted to consider or dismissed their general manager following allegations made by the general manager.
Cessnock City Council
The first matter is referred to tangentially in the reported decision in Cessnock City Council v Rush [2012] NSWLEC 178.
This was a class 4 matter in the Land and Environment Court in which the Council took further action against the councillors against whom the injunction was being sought under s20B. The councillors attempted to delegate the conduct of the injunction proceedings to a person who was not a Council officer, namely the Chair of Hunter Councils Inc, being a company limited by guarantee and set up by a group of Hunter region Councils.
Ultimately the Council was successful in obtaining undertakings from each of the councillors not to act upon the delegation resolution and the class 4 proceedings were therefore resolved by consent with all named councillors agreeing to consent orders allowing the delegation resolution to be set aside.
The substantive application for the final injunction preventing the Council considering whether to terminate the General Manager’s employment contract is listed to be heard in the Supreme Court on 12 September 2012. By this time, the ICAC is expected to have handed down its findings in relation to the substance of the allegations it is investigating including those made by the general manager.
Ryde City Council
Most recently, the Mayor of Ryde has declared he (presumably the Council) will take action under s20B of the PD Act to seek an injunction preventing the Councillors from implementing a decision to dismiss that Council’s General Manager.
On 23 July, while the General Manager was on holiday in China, councillors voted 6 to 5 to dismiss him. The General Manager had previously alleged misconduct by six councillors to the Division of Local Government and the ICAC concerning the Ryde Civic precinct development.
A rescission motion was foreshadowed to set aside the dismissal. In the meantime the Mayor has stated in the press that he is approaching the Supreme Court for an injunction to prevent an alleged breach of the PD Act.
Next Step
Within the next few months there should be some important guidance in a local government context on what constitutes “taking detrimental action” against a whistle-blower and what is to be considered to be “substantially in reprisal” for same.
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