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New revelations in the John Barilaro trade saga show how firing the woman first offered the New York role prevented her from accessing state whistleblower protections. By Rick Morton.

Exclusive: Barilaro affair sacking dodged whistleblower protections

Jenny West gives evidence at an inquiry into the Barilaro trade appointment.
Jenny West gives evidence at an inquiry into the Barilaro trade appointment.
Credit: AAP Image / Bianca Di Marchi

The senior New South Wales public servant whose selection for a prime overseas posting was overturned following a rushed cabinet submission from then deputy premier John Barilaro was also made redundant in a move that circumvented a law carrying jail time for “reprisals” against whistleblowers.

In evidence during a subsequent inquiry, Jenny West, who at the time was a deputy secretary vying for a senior trade position in New York, has wondered why it was that her job had to be “deleted” at the same time she was given the news that she would never see a contract for the $500,000 foreign gig.

On September 17 last year, West was told by her manager, Amy Brown, the chief executive of Investment NSW, that this was because the money used to pay her salary had already been diverted after she was “given” the overseas job. According to her own evidence from a leaked closed-session parliamentary inquiry hearing, Brown then set about investigating her colleague over newly arisen performance and management issues.

Just a few months after West’s position was officially jettisoned, a new job with almost the same pay and similar responsibilities became available. It was filled by long-serving public servant Kylie Bell while West was still serving her 38-week payout period.

West was perplexed by the decision to make her position redundant. One effect of that decision was that it changed how she was dealt with under the state’s Public Interest Disclosures Act 1994, which she used to report peculiarities in the recruitment process.

“That act makes it an offence to sack a person, or subject her to any detriment, because she made a public interest disclosure,” a senior government lawyer told The Saturday Paper, noting that they were “sacking her before she had a chance to breathe, let alone draft a complaint”.

(The Saturday Paper is not suggesting it was Brown’s intention to avoid whistleblower laws when making West redundant.)

When Jenny West, through her representatives at Harmers Workplace Lawyers, drafted a letter to Amy Brown on October 19 last year, it ran to 10 pages and detailed a litany of complaints about the process, ending with what is known as a voluntary public interest disclosure within the definition set out by the act.

The Saturday Paper can reveal that this disclosure dealt generally with concerns about the process, specifically with Barilaro’s cabinet submission, which had the effect of spilling the nearly finalised recruitment for the role in New York.

When asked about this disclosure, the NSW Department of Premier and Cabinet said it was not responsible at the time.

“In October 2021, Investment NSW was an executive agency in the Department of Premier and Cabinet cluster. It was therefore a separate ‘public authority’ for the purposes of the PID Act,” a spokesperson told The Saturday Paper.

“Any questions regarding the handling of specific PIDs should be directed to the public authority responsible for managing the PID (in this case, the Department of Enterprise, Investment and Trade).”

Under the law, agencies must provide a receipt of a disclosure to the person making it within 45 days and written correspondence outlining what action has been taken or is proposed to be taken within six months of receiving the disclosure.

Jenny West has not heard from Investment NSW – or the new Department of Enterprise, Investment and Trade (DEIT) where Amy Brown, a lawyer, serves as secretary – about her clear and unequivocal disclosure since that letter was sent 10 months ago.

A spokesperson for Investment NSW, which now sits within the DEIT, said “in relation to matters previously raised by Ms West, Investment NSW responded via her preferred representative at the time”.

The spokesperson did not respond to repeated questions that specifically asked what was done with the disclosure or to whom it was referred for investigation, if anyone. Instead, the department issued a second statement on Thursday, which said: “DEIT takes all public interest disclosures seriously and is committed to managing them in accordance with the Public Interest Disclosures Act 1994 and relevant Public Interest Disclosure Reporting policy.”

The NSW Ombudsman did not have data on public interest disclosure referrals for the second half of last year.

Under guidance for public service agencies from the NSW Ombudsman, even “possible evidence of serious reprisal” following disclosure by a public official – or where an agency suspects this has occurred – ought to be referred to the Independent Commission Against Corruption or the NSW Police Force.

There is a new Public Interest Disclosures Act which was given royal assent in April, but it does not come into force until the end of next year. It includes new wording to make it even clearer that a potential disclosure in the future by a public official ought to be protected from “detrimental action”. This was at least partly a result of advocacy from the NSW Ombudsman, which argued this duty to be proactive in preventing harm was already “implied”.

In a 2017 submission to a parliamentary review of the act, the office said: “We believe there needs to be a stronger emphasis in the legislation on taking a proactive approach to reprisal. This would aim to make sure that disclosures are managed in a way that best prevents adverse consequences for the people who make them. While it may be implied, there is currently no specific obligation in the PID Act for public authorities to prevent reprisal or to protect a reporter.”

On Tuesday, the review of the New York appointment process by former public service commissioner Graeme Head – now a consultant with professional services network EY – was released by the state government, revealing serious concerns and breaches of the NSW Code of Ethics and Conduct.

Head found that it was West who had an unfair advantage in applying for the role because she had previously overseen the process and had access to “material that included details about candidates”. Nevertheless, his more significant concerns were reserved for the process involving John Barilaro and in both instances the former commissioner found Amy Brown should potentially face disciplinary action.

Head recommended “the DPC Secretary, as the person exercising employer functions (under delegation) for Ms Brown, considers what, if any, action to take in respect of the conclusions referred to … above.

“In doing so, the Secretary should take account of the contextual factors contained in this report as well as any matters Ms Brown wishes to be factored into his consideration.”

Head was also clear that there was nothing about the Barilaro cabinet submission that should have removed either Jenny West or the second preferred candidate from the field in the first recruitment round.

“I cannot see how it was open to Ms Brown to interpret the decision of government as in any way going to the question of candidate suitability,” he writes.

“The effect of the decision of government was to quash Ms Brown’s discretion to appoint from these processes; it did not – and could not – speak to candidate suitability.”

Head detailed “highly irregular” contact between Brown and then Trade minister Stuart Ayres, who resigned after questions were raised about this. Head found the deliberations in the second recruitment process involving John Barilaro were not at “arm’s length” from government.

“Two things are noteworthy about the discussion of the shortlist. Firstly, it is not typical practice to consult ministers on the makeup of a shortlist when recruiting people under the GSE Act framework,” he said. “The shortlisting of candidates is a responsibility of the selection panel, having looked at the focus capabilities of the role and the claims of candidates against those capabilities.

“Secondly, the fact that Investment NSW was seeking to test the suitability of individual candidates with the minister suggests that the minister’s views were being taken into consideration in the process. I emphasise here that I am not suggesting that the then minister was actively seeking to influence the outcome, but rather that Investment NSW saw the minister’s views as being relevant to the decision about who to interview. This would appear to be at odds with a process being conducted at arm’s length.”

At Thursday’s hearing of the parliamentary accountability committee, MPs heard from the NGS Global recruiter Dr Marianne Broadbent that she was “shocked and surprised” when she heard Amy Brown say the draft candidate report in which John Barilaro was shown as the second-ranked candidate was sent to Brown “in error”.

Crucially, Broadbent said it wasn’t until months after Amy Brown had arranged for the preferred candidate to meet Ayres – a meeting which did not go well – that she found out John Barilaro was going to be appointed to the role.

“At that [face-to-face] meeting, Miss Brown advised me that Mr Barilaro was being appointed and asked if I would please change the order of the candidates.”

A constellation of evidence has since been made public regarding other appointments made to the revived overseas trade commissioner postings, including the agent-general position in London, which went to former Business NSW lobbyist Stephen Cartwright and involved “eye-watering” salary demands.

Broadbent also confirmed on Thursday that Cartwright had told her that Barilaro had suggested he apply for the job and that he had been assured of receiving an $800,000 remuneration package, about $250,000 higher than advertised. A recruitment round had already finished and found a candidate for the role when Cartwright entered the race.

An email from Broadbent to an official in the Department of Treasury, sent in April last year, notes that “we would need to massage the candidate brief for Stephen as there were some difference[s] that panel identified between the NGS brief and the panel view”. The public official wrote back: “That’s great.”

In September last year, senior Investment NSW executive Kylie Bell emailed colleagues and asked them to keep a central file of every document relating to Cartwright’s appointment because it “will come under scrutiny no doubt and someone else will have to unpick / interpret our decision-making”.

It was Bell who was elevated to a band-3 role after West was made redundant and it was Bell who had the job of telling John Barilaro he was the successful candidate for the New York job that was originally meant to go to West.

Brown says she tried to warn West on September 17 that the likely outcome of cabinet was to endorse Barilaro’s submission and that this explains the “troublesome” relationship that emerged between them. West rejects this and notes, as far as she was concerned, she was simply in a holding pattern until cabinet had met and that she was otherwise doing her day job while she waited.

Cabinet endorsed the submission on September 27 and Jenny West was first told officially on October 1, the same day Brown told the parliamentary inquiry, “I was of the view that there were no suitable candidates.”

During the time Brown went from telling her she was doing “impressive” work and was an “extraordinary” performer, to later trying to investigate supposed performance issues and then the October 1 decision, West took no sick leave and caused no fuss.

As West said in evidence, she had no reason at that stage to suspect anything “untoward” had happened. That changed, prompting her to make a public interest disclosure.

“If indeed that disclosure has been referred for an investigation, and I have seen no evidence that it has, the investigating body must be curious about how much the agency knew about the potential corruption or maladministration in the process,” a senior government source says.

“Because it seems clear to me they knew a lot more than Jenny West did in September and have acted to strengthen their position.”

Perception is not reality, however, and the parliamentary inquiry – and potentially other, more secretive investigations – will still have to do their work to establish what happened.

This week, one of Barilaro’s referees for the New York posting, Gary Barnes – Barilaro’s handpicked inaugural secretary of the Department of Regional NSW – announced his retirement. In a letter to public service employees, the Department of Premier and Cabinet secretary Michael Coutts-Trotter wanted to set the record straight.

“Gary talked with me in May about his plan to retire this year,” he said. “His decision to retire now is entirely in keeping with that plan and, to be very clear, it is not linked to matters related to the trade commissioner inquiries.”

Broadbent was asked on Thursday, by a member of the government if she thought there were many instances of media misinformation in which there was a “gulf” between what was reported and what actually happened.

“Possibly but it was more, in my view, in some of Ms Brown’s evidence,” she said.

Without naming anybody, the managing partner at NGS Global said she had made a confidential statement to the committee because she wanted the “full context” to be considered.

“Some evidence has been given that I believe is incorrect or incomplete,” Broadbent said.

This article was first published in the print edition of The Saturday Paper on August 20, 2022 as "Exclusive: Barilaro affair sacking dodged whistleblower protections".

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