If you work in the Commonwealth Public Service and you observe criminality, misconduct or behaviour damaging to the public interest, your options for bringing it to light are limited. And if you work in an intelligence or security agency, you have none at all, and face extraordinary punishment if you try to do so.
For regular public servants, there’s an act called the Public Interest Disclosure Act 2013 (PIDA). That was the work of Mark Dreyfus, Labor’s last attorney-general. It was a good start for protection for both internal whistleblowing (inside an agency or to an ombudsman) and “external whistleblowing” — the kind that most of us are familiar with.
While the “disclosable conduct” is broadly defined (and the whistleblower must only have a reasonable belief that it meets the threshold for disclosure), they must have already made an internal disclosure of the conduct and the whistleblower must have reasonable grounds to think the response of the agency was inadequate (though a Department of Parliamentary Services whistleblower who carefully followed the legislative requirements just lost his Federal Court case because of flaws in the legislation).
But most particularly, the disclosure must be “not, on balance, contrary to the public interest”.
“Public interest” is one of those terms deliberately not defined in law, but the problem is more around the words “on balance”. That allows the public interest benefits of a disclosure to be weighed up against other consequences of the disclosure. Maybe it violates commercial confidentiality. Maybe it violates national security — or some bureaucrat’s idea of national security. Once you can put on the scales what politicians and public servants might deem to be other, negative consequences of transparency, you immediately start narrowing the range of whistleblowing that is allowed.
And that’s before you get to the national security exemption. There is a complete exemption for anything to do with intelligence (or including intelligence information), or intelligence agencies. You don’t even need to work for an intelligence agency to be caught by that exemption. There’s an ostensible limitation to the “proper performance” of intelligence agencies but intelligence agencies have such vast remits that “proper performance” can encompass virtually anything — and governments interpret that remit very generously.
ASIS’ bugging of the Timor Leste cabinet, for example, was illegal under ACT law, but neither the ministers concerned, nor the leadership of ASIS, nor the agents who performed the bugging, have ever been called to account for it. And the justification for the activities of intelligence agencies is extraordinary, including a very broad concept of the economic interests of Australia.
Without the protections of PIDA, public servants tempted to expose wrongdoing used to be exposed to the draconian strictures of section 70 of the Crimes Act, but that was overhauled last year to slightly ameliorate it. It used to be a jailable offence for public servants to reveal any information of any kind. Now, under changes made in the Turnbull government’s foreign interference laws, the offence has a longer jail sentence — seven years — but is now limited to “security classified information, information that was obtained by, or made by or on behalf of, a domestic intelligence agency or a foreign intelligence agency in connection with the agency’s functions; information relating to the operations, capabilities or technologies of, or methods or sources used by, a domestic or foreign law enforcement agency”.
Public servants can also be jailed if they reveal information classified secret or top secret, or the information that “damages the security or defence of Australia, prejudices a criminal investigation or prosecution or harms or prejudices the health or safety of the Australian public or a section of the Australian public”. “Health or safety”, of course, is so ludicrously broad that it could cover almost anything if a malicious senior bureaucrat or politician wanted it to — and remember that “security” covers economic activities as well.
It’s not merely that intelligence officials, and anyone who might have information that could plausibly be connected to intelligence, aren’t protected from whistleblowing protection laws — the laws around intelligence officials have been radically tightened. In 2014, the government used the hysteria around the revelations of industrial-scale abuse of spying powers and misconduct by the National Security Agency by Edward Snowden to whip up hysteria about “insider threats” (defined at one stage in the United States as anyone who read The Onion).
This was used to justify new laws aimed at intelligence agency officers or even contractors that increased the penalty for unauthorised disclosure of information to ten years’ jail and created a new offence of merely copying information.
Intelligence officials only have one place to go if they want to reveal information about corrupt conduct or other forms of wrongdoing or abuse of power: the Inspector-General of Intelligence and Security (IGIS). If IGIS, which operates in near-complete secrecy, refuses to do anything about what they reveal, bad luck — any further disclosure means jail. And how far can the IGIS (currently former federal court justice Margaret Stone) be trusted? When Witness K approached the then-IGIS Ian Carnell in relation to his workplace dispute with his former employer (remember, K is not a whistleblower, but is contesting his constructive dismissal by ASIS), Carnell told him he could pursue the matter via “private legal action”, which is the strategy K and his lawyer Bernard Collaery pursued.
That hasn’t stopped the Commonwealth from prosecuting both men. Moreover, the next IGIS, Vivienne Thom, seemed to suggest no such advice had ever been given. The IGIS also has no accountability to parliament, with the government able to shut down any attempt to examine the conduct of the Inspector-General.
Intelligence officers are some of the most devoted and patriotic public officials in Australia. A man like Witness K served his country in dangerous places across the world, putting Australia’s interests ahead of his own time and again. Many of his colleagues do exactly the same.
And yet, if they dare to call attention to misconduct, corruption or debacles created by their superiors, they are treated as criminals and threatened with longer jail terms than most violent crimes receive. All to spare senior officials and politicians embarrassment and facilitate wrongdoing.
What is the next step in the government’s war on transparency? Will whistleblowers be able to do anything to bring misconduct to light? Send your comments and full name to boss@crikey.com.au.
Imminent necessity defence may trump official secrets? See film Official Secrets dir.Gavin Hood, and the Liberty defence of Katherine Gun.
It would seem the starting point for any intelligence officer with knowledge of bad behaviour that should be aired publicly, is to resign, leave the country and get a new identity, then find devious ways to report the behaviour secretly to an overseas investigative journal or Wikileaks (minus Assange of course). And even then, spend the rest of your life living in fear of covert retribution.
Once upon a time Aussies were relatively free from Stasi-like terror…it must be only a matter of time before whistleblowers start mysteriously dropping dead from polonium poisoning..!!
Fairmind ..I don’t know if once upon a time free from Stasi-like terror ever much applied to our Aussie indigenous peoples but I take your succinct points ..Shame about Julian Assange too..
Sorry Ruby, but that was Ghengis Khan-type terror inflicted on the indigenous, not Stasi…out and proud, albeit utterly wrong by civilised standards.
What we have now is secret terror inflicted on our own people, for our own good though, of course….
Such is the long way about FM. There exists the exemplary Edward Snowden option and Russia (from personal experience) is not such a bad place to live.
Quote “Once upon a time Aussies were relatively free from Stasi-like terror…it must be only a matter of time before whistleblowers start mysteriously dropping dead from polonium poisoning..!!”
This is exactly the issue Fairmind. Extra judicial abuse (use) of the law has always occurred and those abuses will just get worse with new technology, lack of independent oversight and loosely defined draconian laws.
A case in point is that of Reidar Visser who was a reporter writing on middle eastern issues. He documented how he was relentlessly harassed by the state using new technologies to track his location. Don’t think this doesn’t happen in Australia.
https://web.archive.org/web/20181130165344/https://policestalking.wordpress.com/2012/07/15/an-introduction-to-police-stalking/
Is that so? Maybe it is not so.
If it is so then we have two laws in juxtaposition to each other.
The Federal Government, the state governments, the courts and the state and federal police all over Australia advertise that if any citizen sees a crime, then they ring Crime-stoppers and to be anonymous and not give their name or any identification.
Governments do that as a public service to Australian citizens to clean up crime. Crime let loose changes governments.
If any information is given to criminal investigators and it is not followed up, then Crime-stoppers would cease to exist and crime would flourish and it could change governments if the Opposition was told it was not being acted upon. Does the Opposition want to become the government, no matter who that Opposition is?
Yes.
To my mind, Military Intelligence runs a close second behind Anarchy Rules for the best oxymoron of all time. And when it comes to the Aussie army Intelligence Corps, where do a lot of the more dubious characters end up? Yep, working for ASIO or the AFP. So, don’t expect too much intelligence anytime soon.
While the majority of the world was gaping at the event of the Twin Towers almost 20 years ago a few had the presence of mind to declare that legislation would be forthcoming that could never be enacted without such a display of “justification”.
Cocooned in our safe Orwellian play pen, does anyone think that a committee, comprising either side, in the Federal Parliament would be disposed to push the “reset” button to where matters were circa Y2k? I’ve set my stopwatch and await someone mentioning a (cough) Bill of Rights (just like Uncle Sam’s).
Well ,maybe a Bill of Rights ain’t the all round panacea of protection but what in or on the horizon is going to give us ‘citizens’ some sort of practical protections against State Power ?..Consumer rights/property rights as some sort of proxy for human rights may work along the lines of the more assets,disposable income you’ve got the more human rights you’ve got but that doesn’t really give me the ‘warm n fuzzies’..The idea of inalienable ,universal rights is fraught with enough ‘castle in the sky ‘ dangers without floating it on the stock exchange of ‘free’ market ‘privateers’..
Oh Ruby – Thank you for the question. So I can illustrate to my fellow subscribers just what a fast learner I am, I can tell you that “what in or on the horizon [that is] going to give us ‘citizens’ [we citizens – actually but never mind] some sort of practical protections against State Power” is that universal word : democracy.
Democracy is where we get to vote in fair and open elections placing those who selfishly labour on our behalf and for our benefit into Parliament; unqualified and largely illiterate on any topic of significance (from climate change to machine learning or the quantifiable effects of globalisation pertaining to the 21st century) as they are.
If it is to be a consultation, the circumstance of government for the average fellow is little better elsewhere; pros and cons wherever one goes. At one time in history a property suffrage did exist but then came trade and the new rich forgot their place.
At least Blair was (and Corbyn is) sufficiently astute to realise that taxi drivers in London have holiday homes in Spain. Other than franking credits, there does’t seem to be an equivalent in Australia.
Yet the pages of Orwell (as you imply) convey that some event “abc” is effected to conceal objective “xyz” which, as Rousseau pointed out, binds the workers to the interests of those who own large swags of capital to the point where the workers perceive an interest in preserving the assets of their superiors if only to protect their franking credits and motley pads in Spain.
Do (as I have suggested these past weeks) glance over the last chapter or ’84 where Orwell explains that the secret of governance is in telling the good people that they are under attack. It works a treat. Maggy utilised the phenomenon as has Trump and Bengi, over in the Middle East, plays the theme like a violin.
Run for Parliament in 2022 Ruby. I’ll change suburbs and you’ll have at least one non-family member vote. Communist, Anarchist, Independent; even alt-Right : I won’t care. Then make a start on the tax code and endeavour to reduce the number of Statutes and codify “pubic interest”.
Thank you for your reply Kyle ,I think i’m starting to get an inkling of an iota of an idea of your style/genre of prose…
Of course not Kyle, nothing short of a revolution is going to wind back 20 odd years of draconian legislation. No doubt there is more to come. In fact I’m just listening to ABC’s “Download this Show” on how local councils are rolling out facial recognition systems which will instantly be available to various agencies. No public debate on that one at all, they just stole our photos from our drivers licenses and are now using them for facial recognition systems.
At the time when they stole our photos for the facial recognition database the claim was it was just for use at airports and at extraordinary times to stop those terrorists. Funny how things change.
We were told again and again that we can’t let terrorism change our way of life … apart from the introduction of a continuous stream of draconian laws taking us to destination authoritarian police state that is.
In another life I was on a few committees (ex officio) related to airport security. There was a representative from a major government department more often than not. I pointed out (written doco and all) that anyone who intended damage would begin at the shopping centre and NOT the airport. Everyone agreed BUT as to decisions : it didn’t make a damn of difference to the money being spend at the airport.
As to revolutions : take a look at the book Smith’s Dream; old but germane nonetheless. A NZ film, after the book, was called Sleeping Dogs. Major question : just who is going to organise it, LR, because, as sure as hell, the date will conflict with someone’s bbq.
There was concern expressed about photo licences (after the Oz Card outrage, probably the last time the populace acted, en masse, about such a matter) prior to their introduction but bland assurances were extruded from government (State & Fed) that under no circumstances would the photos be used for any other purpose nor, Heavens to Murgatroyd, assembled into a central database (digital dodginess being still sci-fi).
Some of us knew that was B/S but most people accepted it and went back to sleep.
Most still haven’t woken up.
Quite, but, if memory serves, that initiative was circa 15 years prior to the event that changed legislation pertaining to “security” forever.
De facto, a driver’s license serves in its place and photos (for a license) were not required in the 80s (if I recall correctly).
The irony is (a bit like an arms race) that country A does not wish to be in a situation where it knows less about its citizens than does country B. The postman in “Man of Flowers” was correct.