WHISTLEBLOWERS AUSTRALIA

A letter to the Department of Fair Trading in NSW.

6 Teakle Street

Summer Hill

NSW 2130

0418 166 577

02 9797 6459

19 October 2011

Commissioner Rod Stowe

Commissioner

NSW Fair Trading
1 Fitzwilliam St
Parramatta, NSW, 2150

Dear Commissioner,

             

I believe there has been a contravention of the Associations Incorporations Act by Ms Cynthia Kardell of Whistleblowers Australia (WBA). Ms Kardell was the Secretary in the period prior to the election at the most recent AGM, and as a consequence of the election, is now the President. I am seeking an investigation into the election process with the view of remedying what I and others believe to be a flawed electoral process.

My concerns involve the conduct of Ms Kardell, who is a practicing solicitor in NSW. I believe she would have full knowledge of the special requirements that her professional standing would place on her to conduct any election in a fair and equitable fashion. I believe she dishonestly abrogated those responsibilities for her own purposes.

It is my contention and the view of many long standing members that Ms Kardell used her position as Secretary to benefit herself and some supporters. The relevant sections of the Associations Incorporation Act 2009 (under which WBA. has been incorporated), are sections 32 and 33.  The reason behind her actions was a conflict about an earlier policy issue (on seeking funding for WBA).

In specific terms, my complaints of her dishonest actions are as follows:

Ms Kardell used her exclusive access to membership records to seek out non- active members and to induce them to stand for positions of office holders.

Though other members, including myself, sought access to the membership list, Ms Kardell refused to grant that access. Ms Kardell insisted that any communications with other members must be put through her.

Despite this, Ms Kardell used her position to contact other members without advising existing office holders of her activities. We have been informed of occasions where Ms Kardell sought proxies from people who were not made aware of her intentions to remove original office holders.

At no time did Ms Kardell advise other office holders that she was using her position to influence other members of her intentions. I (as President of the NSW Branch) had been aware of the earlier conflict, and had specifically met with Ms Kardell to suggest that the conflict be resolved at the AGM. Ms Kardell told me that there was no conflict, and that the election would proceed as usual. This was not the truth.

The first item on the AGM agenda was the election of office holders. As soon as Ms Kardell and her supporters took over the office holder positions she was in a position to block any debate about the issue in contention.

This letter sets out details where Ms Kardell has breached the Act. (Contact details for her and other participants are set out below).  

The earlier conflict related to WBA strategy   WBA was established to support whistleblowing & to lobby for strengthened whistleblower legislation. As you may know, Australia has the weakest whistleblower protection legislation of the major anglophone countries. About three years ago, the then President and some members were authorised by an AGM resolution to explore funding sources for strengthening WBA’s efforts (primarily more research, creating an active website and greater lobbying). They put in an application to be allowed to compete for funding offered by an external agency (Siemans Ltd. 2009/10 funding round). Ms Kardell, then Secretary, objected to external funding. She unilaterally wrote, as Secretary, to Siemens saying that the WBA committee had not considered the application. As a result WBA was not even granted permission to enter the competitive round. Ms Kardell’s action caused much conflict within WBA. The resulting wide-ranging email correspondence across many members was extremely unpleasant.  A number of members resigned. The President, Mr Peter Bennett, and myself, however, stayed on.

AGM voting in the past has been confined to those who attend. With only about 20 attendees, and about 9 proxies, the AGM vote (in Brisbane, November 2010) was a forgone conclusion.  Mr Bennett, after stating his objections, resigned. I also objected, stating that nobody had any warning that Ms Kardell was standing –and that based on her earlier statements to me (which I had circulated), that members expected a normal vote. I also stated that funding was a major issue, which would affect the directions of WBA, & should be taken to all members – not decided unilaterally by Ms Kardell.  The voting proceeded, however, with the proxies being used to vote in many of the new faces and eliminate those who did not support Ms Kardell (the NSW President is elected separately).

I continued to object, but was consistently told that proxies are allowable under the WBA constitution   [  http://www.whistleblowers.org.au/WBAConst.html ]

The use of proxies as you know is not permitted by the model rules promulgated by Fair Trading NSW. I was also concerned that Ms Kardell subsequently refused to allow me – or any other member - access to the membership list, or in my case, the NSW membership list. Only she can contact members (and has done so, to announce her Presidency among other matters).

I asked that the dispute be referred to a Community Justice Centre for mediation in accordance with the Community Justice Centres Act, 1983, as provided in the WBA constitution. Ms Kardell agreed.  At that meeting (30 March)  I asked for a Special General Meeting (SGM) of Whistleblowers Australia under Section 27,  Item 2, of the Constitution

(2) The committee shall, on the requisition in writing of not less than 5 per cent of the total number of members, convene a special general meeting of the association. 

My purpose in that SGM was to attempt to reform the WBA constitution – to make proxies illegal and to ensure that all members had the opportunity to vote. I had, and still have, 13 members – well over the 5%, who have requested an SGM in writing. Ms Kardell has refused to accept those letters. Her reasons were that most were via email, and although signed, were not in ink. I also asked that the SGM be without proxies, but Ms Kardell refused that request also.  When I said that proxies made the SGM a charade Ms Kardell actually told me that I should go out and get my own proxies.  

These actions, from the earliest statements to me, and subsequently, certainly lack transparency, but I also believe that they are dishonest and therefore illegal, under sections 32 & 33 of the Associations Incorporation Act. I would ask that the Department of Fair Trading act on this matter, requesting at least that it require a Special General meeting be held, that conflicting viewpoints have equal access to all members, and that no proxies be allowed.

Yours sincerely,

                                                                                                            Peter Bowden (Dr.)