Experts say the case against the alleged whistleblower in "Daughtergate" is a good example of why comprehensive whistleblower protection is a very important issue for Australia.
A 20-year-old university student faces up to two years in jail for allegedly accessing confidential computer records of 500 students at the Whitehouse Institute of Design, a private design school that's been in the media spotlight lately for allegedly giving Tony Abbott's daughter Frances a secret scholarship.
UTS student and former Whitehouse librarian Freya Newman is accused of breaching Section 308H of the NSW Crimes Act
, which bans "unauthorised access to or modification of restricted data held in a computer". It’s not clear whether Newman was the leaker who outed Frances Abbott’s scholarship to the media. In June, New Matilda
, as well as The Guardian
, revealed the Prime Minister's daughter had received a $60,000 scholarship to study at the institute. The scholarship was kept secret from Frances Abbott’s teachers and fellow students, had only been given once before, and was allegedly offered after only one meeting between Frances Abbott and the institute’s founder and managing director, Leanne Whitehouse.
Newman declined Crikey's
request for comment, and New Matilda
editor Chris Graham said he wouldn’t confirm the identity of his sources. But if Newman was New Matilda’s
source and accessed the information in order to reveal the nepotism allegedly given to the Prime Minister’s daughter, it would do nothing to lessen the charges against her, whistleblowing experts told Crikey.
In January, a new whistleblowing bill -- the Public Interest Disclosures Act
-- came into effect, which gave legal immunity to Commonwealth public sector officials who give confidential information to the internal government ombudsman or through other official channels. There is also limited immunity for leaks to the media.
The fact-sheet on the Public Interest Disclosure Scheme
"In limited circumstances where it is not contrary to the public interest, you have a right to make a public interest disclosure to anyone outside government if you have first made an internal disclosure and either the investigation has exceeded the time limit or your reasonably believe the investigation or its outcome was inadequate."
Whistleblowers Australia president Cynthia Kardell tells Crikey
this is woefully inadequate, and too narrowly defined to only apply to those who work for the government or in companies that contract to the government. "You’ll be told there are laws -- like the Public Interest Disclosures Act
. But there’s really almost no protection for whistleblowers."
"People take a risk in speaking to the media ... They hope it won’t blow up in their face, but sometimes it does. I’ve seen this happen so many times -- sources just get destroyed."
A. J. Brown, a law professor at Griffith University and chairman of Transparency Australia, helped advise on the law. But he, too, says it leaves significant gaps. "[Newman's charge] is a good example of why some kind of comprehensive whistleblower protection for the private sector is a very important issue for Australia," he told Crikey
. Given Newman’s employment in a private educational institution, "there is every chance she’s not covered by any whistleblower provisions at the moment".
"If she was employed by a public university, it could be a bit different," Brown added. "Universities are covered by different public sector whistleblower legislation. But in the private sector, there’s nothing you’d call a proper whistleblower protection regime that could kick in."
Whistleblowers in Australia are always able to pursue a common law defence -- to argue that their disclosures were in the public interest. But such actions are seen as audacious and unexpected to succeed. The lack of whistleblowing protection in Australia makes life more difficult for journalists, particularly those who cover business or other private sector wrongdoing and need to rely on confidential information obtained from all sectors of society to shine a light into things others would rather stayed hidden.
It’s a dilemma New Matilda
editor Chris Graham says he’s very aware of. "Whether or not she’s my source, I feel very bad for Freya," he told Crikey.
"It’s a thoroughly indecent situation," he said. "People take a risk in speaking to the media. Usually they’re aware of the risk they’re taking. They hope it won’t blow up in their face, but sometimes it does. I’ve seen this happen so many times -- sources just get destroyed.”
If a source is successfully hidden, police may target the journalist. Shield laws, brought into Australia in recent months, may help journalists avoid disclosing their sources. But with today's electronic surveillance, police don’t need cooperation from journalists to investigate a leak. Increasingly, sources are being outed without the journalists giving them up.
Even if police don't find evidence of leaking, if they just have a suspicion about who it is, the mere act of searching through somebody’s past can lead to a conviction, says Graham. "I worked on a story a few years ago when they went after the person they believed to be the source. They never found anything linking that person to us, but in the process of going through everything they could, found other information that they then used against him."
"I’m staggered by the lack of public interest in that. That someone takes huge personal risk, for a great public benefit, and is rewarded with, in this case, bankruptcy. It’s just so incredibly unfair, but that’s how the system works," he said.
Both Kardell and Brown think the system could be improved through a comprehensive, Australia-wide whistleblowing provision that applies to the private sector. "If this happened in the United States, or even the United Kingdom, there’d be laws that could apply," said Brown.
If the alleged leaker did hack student records (the hacking claim is disputed by New Matilda
), the best defence is political, Kardell says. "Police do have discretion," Kardell said. "They don’t investigate everything that turns up on their doorstep. Often, they say no one’s complained. And often, they’ll investigate if there’s a strong political interest."
In this David and Goliath battle, perhaps this is a way out. A trial will keep the Whitehouse scholarship issue in the news for months -- indeed, the charge has already led to a flurry of new coverage of the original scholarship.
"There's an amazing amount of money and power on the father’s side, who has full access to the law and can find ways to use the government to push it along," Kardell said. "No doubt somewhere along the way, someone will ask him whether this use of the Crimes Act
Given the lack of jurisprudence around whistleblowers in Australia -- there simply haven't been a large number of cases -- the experts Crikey
spoke to were loath to guess what will happen next.