The discovery that politicians are under surveillance when whistleblowers contact them should drive a serious attempt to protect the latter from surveillance.
While the specific circumstances surrounding the “inadvertent” monitoring of Senator John Faulkner and his dealings with a parliamentary whistleblower inside Parliament House have some way to play out, the case has served to focus on the growing difficulty of providing safety for whistleblowers in a mass surveillance environment.
The CCTV spying on a Department of Parliamentary Services whistleblower that revealed he had contact with the Labor veteran infuriated Faulkner, and he’s not alone, with other senators saying they regard DPS as out of control and in need of a full inquiry. That matter is currently before the Privileges Committee, to which Faulkner immediately referred the matter after the head of DPS, Carol Mills, anticipated Faulkner’s questioning in the Finance and Public Administration Committee on Monday and volunteered that there’d been an incident in which “appropriate” accessing of internal Parliament House CCTV footage in investigation of a possible code of conduct breach by an APS employee had “inadvertently” come into conflict with “the protocol of the protection of members’ and senators’ rights to do business in the building”.
Fairfax journalist Philip Dorling first reported claims that CCTV was being used to track whistleblowers providing information to Faulkner inside Parliament House in 2011. The claims were denied at the time, and the denials were accepted by Faulkner and others — meaning Faulkner is even angrier about the matter than he otherwise would be.
Faulkner sought advice on the use of CCTV and parliamentary privilege from the Clerk of the Senate, Rosemary Laing, and her response suggests there is serious trouble ahead for DPS.
“In my view, the circumstances do give rise to concerns that a contempt of interference, or attempted interference, with the free performance by a senator of the senator’s duties as a senator may have been committed. Disciplinary action against a persion that has the tendency or effect of hampering the provision of information to senators could readily constitute an improper interference with the free performance of a senator’s duties as a senator and, therefore, a contempt. The use of electronic surveillance of a senator’s office for unauthorised purposes to intimidate persons who provide information to senators is also capable of being found to be a contempt.”
The key phrase there is “for unauthorised purposes”, but as Mills’ initial argument to Faulkner makes clear, there is also the potential for what the executive and its administrative agencies regard as appropriate and authorised use of electronic surveillance to “come into conflict” with the rights of elected officials to conduct their business — including meeting with whistleblowers.
This applies, of course, to real whistleblowers, not the unnamed politicians and senior bureaucrats who happily leak to the media to push a particular agenda. The AFP will never obtain metadata to determine which colleague has revealed what a minister said in cabinet; there’ll be no investigation of the Australian Secret Intelligence Service or Australian Signals Directorate officials spruiking their successes to state-aligned journalists in the national dailies.
That journalists are the subject of casual surveillance (and, yes, collecting metadata on someone is surveillance) by law enforcement agencies seeking to establish the identity of whistleblowers is regrettable but an established risk of contemporary journalism, one that media companies should be far more proactive in addressing. That elected officials are subject to in effect the same surveillance risk, but with the added threat that one of their own workplaces is under CCTV observation, is arguably a more serious and direct threat to democracy, with the potential to intimidate would-be whistleblowers from providing information to politicians capable of using it more effectively than journalists can.
We’ll ignore for the moment the potential for politicians to be monitored either by our own intelligence agencies or by foreign intelligence agencies of our close allies: it’s not merely law enforcement agencies that can obtain metadata of politicians without a warrant, but a wide range of agencies including those with regulatory or tax-collecting functions. The Australian Tax Office, financial regulators, departments like Health and Environment, even non-government entities, can all seek metadata, widening the potential for politicians to be monitored to identify who is contacting them.
Some of these issues are being picked up in Greens Senator Scott Ludlam’s current inquiry into the Telecommunications (Interception and Access) Act 1979, and there is support even from the Attorney-General’s Department for significantly narrowing the range of bodies that can access metadata without a warrant, something also backed by the Joint Committee on Intelligence and Security, which now appears semi-comatose.
Maybe, in the face of institutional inertia to address the pervasive threat of surveillance not merely to journalists but to politicians themselves, the Privileges Committee is the best body to try to establish some basic defences for whistleblowers seeking to raise concerns with politicians, rather than going straight to the media.