Protected disclosure laws not breached, says ICAC

Tuesday 16 February 2010

The Independent Commission Against Corruption (ICAC) has advised NSW Acting Opposition Leader Andrew Stoner that it does not consider Premier Kristina Keneally or the Premier's Office have breached protected disclosure laws in relation to comments concerning allegations involving Ms Karyn Paluzzano MP.

Mr Stoner wrote to the ICAC on 11 February 2010, requesting the Commission inquire into whether the Premier and/or the Premier's Office have breached the Protected Disclosures Act.

One of the comments concerned a statement made by Ms Keneally in a news release of 11 February 2010 that "MPs and public servants are entitled to due process, and should not be made victims of vexatious complaints".

The other comment was a report in the Daily Telegraph newspaper that the Office of the NSW Premier had informed that publication that the person who made the protected disclosure had been the subject of a workplace misconduct allegation.

The Commission does not consider that the comments made by the Premier in her news release or those attributed to her office can properly be regarded as being "detrimental action against another person that is substantially in reprisal" for that person making a protected disclosure within the meaning of section 20 of the Protected Disclosures Act.

Under this section of the Act, a person who takes detrimental action against another person that is substantially in reprisal for the other person making a protected disclosure is guilty of an offence. The term "reprisal" in that section imports an element of retaliation for the making of a protected disclosure.

The comments in the news release are made in defence of members of parliament and public servants in general and hence the Commission does not consider that they constitute a reprisal against a person making a protected disclosure. Nor does the Commission consider that the comment attributed to the Premier's office about a workplace misconduct allegation is reprisal action as contemplated by section 20 of the Protected Disclosures Act.

The Commission emphasises that none of the reported comments is capable of pre-empting or influencing its investigation of the allegations concerning Ms Paluzzano, and it is continuing its investigation into those allegations. At this point, the Commission will not be making further statements in relation to these matters.