In a significant case dealing with the sacking of a whistleblower in New South Wales, the former State Emergency Service Commissioner Murray Kear has been charged under whistleblower protection laws over the sacking of Deputy Commissioner, Tara McCarthy.
Mr Kear has been charged with an offence under the Public Interest Disclosures Act 1994 (NSW) (the Act). Sections 9 and 20 of the Act provide that it is an offence for a public official to take "detrimental action against a person ... substantially in reprisal" for whistle blowing. This offence is punishable by up to two years in prison.
In Operation Dewer, the Independent Commission Against Corruption (ICAC) investigated allegations that Mr Kear took detrimental action against Deputy Commissioner Tara McCarthy, including dismissal from her position on 14 May 2013, in reprisal for Ms McCarthy making allegations to Mr Kear that another SES Deputy Commissioner had engaged in corrupt conduct in relation to the tender process conducted for two SES contracts, the use of SES funds to purchase roof racks and electric brakes for a personal vehicle, the obtaining of an SES vehicle for an SES manager and potential falsification of diary entries.
The ICAC made corrupt conduct findings against Mr Kear and recommended that the advice of the Director of Public Prosecutions (DPP) be sought with regard to a prosecution for an offence under the Act.
On 3 February 2015, the DPP advised that there was sufficient evidence to charge Mr Kear with one charge of taking detrimental action in reprisal for a person making a public interest disclosure. Mr Kear is defending the charge.
A prosecution in itself serves to reinforce the protections afforded to whistleblowers under NSW law.
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In the media
A Fresh Team For Rebuilding NSW
NSW Premier Mike Baird and Deputy Premier Troy Grant today
announced the team that will deliver on the Coalition's mandate
to provide an extra $20 billion for vital infrastructure in our
cities and our regions (1 April 2015)
More...
NSW election 2015: State's first female Treasurer
and Attorney-General sworn in with new cabinet
The NSW Government's new cabinet has been sworn in at a
ceremony at Government House. The front bench includes the
state's first female Treasurer, Gladys Berejiklian, and first
female Attorney-General, Gabrielle Upton (2 April 2015)
More...
Law Society welcomes new Attorney General in
NSW
President of the Law Society of NSW, John Eades, has welcomed the
newly appointed Gabrielle Upton on her appointment as NSW Attorney
General Attorney General on behalf of the 29,000 solicitors of New
South Wales (01 April 2015) More...
Former SES commissioner Murray Kear will plead not
guilty to breaching whistleblowers act
The corrupt former head of the State Emergency Service (SES)
Murray Kear will fight a charge of breaching the whistleblowers
act, and plead not guilty to taking detrimental action in reprisal
for a person making a public interest disclosure. It is the first
attempt to prosecute anyone under the charge (31 March 2015)
More...
ICAC public inquiry into allegations concerning former
Mine Subsidence Board manager
The Commission is investigating allegations that Mr Bullock
received, or may have received, corrupt payments or other benefits
as an inducement or reward for showing favourable treatment to
building contractor Kevin Inskip of Plantac Pty Ltd (27 March 2015)
More...
NSW Electoral Commission to penalise failure to disclose
political donations
The NSW Electoral Commission will take enforcement action against
14 entities and individuals that have missed the deadline or
entirely failed to disclose political donations they received
between 1 July 2014 and 1 March 2015 (24 March 2015)
More...
In practice and courts
Commonwealth - High Court - Public Lecture
2015
The High Court has announced that it will hold a public lecture
titled Magna Carta and the Development of the Common Law
to be held on 13 May 2015 in Canberra. Registrations for the event
can be made by using the
online form by 4 May 2015.
Further information from the High Court
Prosecution briefs with the DPP and
outcomes
Information tables on briefs with the DPP and prosecution
outcomes. Updated 27 March 2015.
Prosecution briefs with the DPP and outcomes
ICAC: Former Mine Subsidence Board manager to give
evidence when ICAC public inquiry resumes
The former Mine Subsidence Board Picton office district manager at
the centre of corruption allegations under investigation by the
ICAC will give evidence when the Commission's Operation Tunic
public inquiry continues next Tuesday (7 April).
Former Mine Subsidence Board manager to give evidence when ICAC
public inquiry resumes Tuesday
Published – articles, papers, reports
Sentencing in NSW: A cross-jurisdictional comparison of full-time imprisonment
JUDCOM Research Monograph 39 (March 2015)
This study compares sentencing levels in NSW with those in other jurisdictions in Australia (particularly Victoria and Queensland) and overseas. The findings in this study show that sentences for a range of serious offences in NSW are among the most severe across the eastern seaboard states of Australia (20 March 2015) Sentencing in New South Wales: A cross-jurisdictional comparison of full-time imprisonment Mar 20, 2015
Legislation
NSW
Regulations and other miscellaneous instruments
Administrative Arrangements (Administration of Acts—General) Order 2015 (2015-164) — published LW 2 April 2015
Administrative Arrangements (Administrative Changes—Ministers) Order 2015 (2015-165) — published LW 2 April 2015
Administrative Arrangements (Administrative Changes—Public Service Agencies) Order 2015 (2015-166) — published LW 2 April 2015
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.
