Brian Carter's complaint was a protected disclosure

Over the past eighteen months, the NSW Department of Education and Training has refused to acknowledge Brian Carter's complaint about Carenne Special School as a protected disclosure, claiming that he was not an employee at the time of the complaint and therefore he was not entitled to protection.

In a letter obtained by Carenne Gate dated 14 May 2010, Jane Thorpe of the department's Employee Performance and Conduct unit informs Mr Carter that he is an employee as someone who is on the department's casual list and can therefore be investigated by the department. In the letter, Ms Thorpe advises that Mr Carter was an "employee" but not a "public official" as defined by the whistleblower legislation.

Carenne Gate has sought legal advice on Mr Carter's position and has been told that if Mr Carter is an "employee" which may be investigated then he is a "public official" under the whistleblower protection legislation.

We were directed to look at section 4 of the Protected Disclosures Act which says -

"public official" means a person employed under the Public Sector Management Act 1988 , an employee of a State owned corporation, a subsidiary of a State owned corporation or a local government authority or any other individual having public official functions or acting in a public official capacity, whose conduct and activities may be investigated by an investigating authority, and (without limitation and to avoid doubt), includes an individual in the service of the Crown or of a public authority, a member of the Police Service, a PIC officer or a PICI officer.

Under this definition Mr Carter would have been protected at the time of his complaint and therefore he is entitled to protection under whistleblower protection laws. This can't be taken away from him just because the NSW Department of Education and Training wishes it to.