Jan 6, 2016

Speaking power to truth in the Briggs affair

Protecting the anonymity of whistleblowers is critical. Malcolm Turnbull's failure to conduct an inquiry into the Jamie Briggs scandal rewards those who have used their power against a public servant.

Bernard Keane — Politics editor

Bernard Keane

Politics editor

Much of the aftermath of South Australian minister Jamie Briggs' resignation for his conduct toward a female public servant in Hong Kong has focused, understandably, on gender issues. That's been helped along by the charming intervention of that savant Peter Dutton and his misdirected text to journalist Sam Maiden, not to mention a coincidental outbreak of workplace gender issues in cricket courtesy of Chris Gayle. The reaction of some of Briggs' supporters -- none of whom have been brave enough to put their names to their comments -- has further enlarged the gender dimension: one defence of Briggs was that the whole issue was a case of "he said, she said" and that, in effect, things had come to a pretty pass if an Aussie bloke can't go out, have a few beers and have a red-hot go at a sheila. The standard for ministerial conduct had been set "impossibly high", according to one inevitably anonymous source -- the logic of which suggests that an Australian man given the responsibility of ministerial office should not reasonably be expected to restrain himself from behaving inappropriately toward a woman in a bar overseas. Men, as always, are hapless slaves to their penises. This is depressing confirmation that, as Liberal MP Sharman Stone explained, some of her male colleagues just don't get it, but the issues relating to whistleblowers in this scandal deserve equal consideration. Australia has, by international standards, reasonably good public sector whistleblower protections -- mainly thanks to Mark Dreyfus' work first as a backbencher and then as attorney-general in the Labor years. But the circulation of the public servant's photo and details of the incident by Briggs and others, such that her photo, albeit pixelated, appeared in The Australian, demonstrates that laws mean little if powerful people are angry about a whistleblower. Whistleblowers are crucial -- the word is used deliberately -- to civil society. Without whistleblowers, there'd be little investigative journalism, there'd be much more widespread corruption within government and far more corporate malfeasance. Whistleblowing makes it harder for criminals, rentseekers and lazy or self-interested politicians and bureaucrats to get away with wrongdoing, and forces bureaucratic and corporate systems that are often designed against transparency and accountability to scrutinise behaviour. But the grim reality, all over the world, for whistleblowers is that deciding to call out conduct that is illegal, or unethical, or simply inappropriate, will most likely damage your career and possibly end it. Australia, like most countries, is littered with broken people who have suffered enormous damage, both psychologically and in terms of their employment, as a result of their decision to speak out. That's why anonymity is so important to whistleblowers -- the fewer people know that you have revealed wrongdoing, the less likely you are to suffer recriminations and revenge. That's why the capacity to make disclosures anonymously is critical to any whistleblower protection regime. In the Briggs case, the public servant's decision to disclose his conduct was even braver. For a public servant, a minister is little short of a deity; their every command, every whim -- and those of the high priests who serve them, ministerial staffers -- must be fulfilled, and as expeditiously and as unquestioningly as possible, lest you be accused of not being "responsive". Briggs was not the portfolio minister for the public servant concerned -- she is in the Foreign Affairs portfolio -- so he wouldn't have quite occupied the same position in the political pantheon as, say, Julie Bishop. But he still wields god-like powers over the career of anyone who displeases him. And in circulating her photo, and in that photo then being passed on by one or more of his colleagues, Briggs has demonstrated how much power he wields despite any legislative protections for whistleblowers. Whether it was intentional or not, the result is that powerful government MPs and a Murdoch media outlet combined to produce an article that amounted to criticism of the woman concerned: it starts by claiming she had said the following day that she was glad the minister had "enjoyed the program" in Hong Kong and then reports in all seriousness the ludicrous claim about the standard for ministerial conduct having been raised too high. The effect, regardless of intent, is a clear signal to whistleblowers and all public servants from a powerful coterie of conservatives: hurt us, and we will hurt you, in public. It doesn't matter what protections are in place, we can use a national newspaper to identify and criticise you. In that context, Malcolm Turnbull's rejection of an inquiry into the circulation of her photograph to the media is disturbing. Turnbull himself has admitted that it will deter other whistleblowers from coming forward and let it be known he was "deeply angered" by the circulation of the photo. But he has chosen not to do anything about it. In this case, actions are far more important that fine rhetoric about being angry. But such inquiries, the Prime Minister thinks, "tend to come up with very little". Oddly enough, the AFP routinely investigates leaks to journalists that have embarrassed governments, accessing their metadata or the metadata of public servants to track down who has contacted whom. And Turnbull introduced Australia's most comprehensive mass surveillance scheme last year on the basis that it would enable authorities to establish connections between people suspected of doing the wrong thing. But in this case, oddly, he thinks such inquiries, even with the benefit of data retention laws, wouldn't be useful. But that merely serves to demonstrate yet again how there's a vast difference between leaks that serve the interests of the powerful, and leaks that embarrass the powerful. The latter must be punished brutally. The former? There's no point investigating them -- that would "come up with very little".

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20 thoughts on “Speaking power to truth in the Briggs affair

  1. paddy

    Spot on Bernard.
    Turnbull’s lack of real action in this whole sorry affair have left him looking weak and ineffectual.
    It might yet even be the beginning of the end for him.
    Utegate ll

  2. Johan Dritter

    I used to work in an ethics unit and would tell would-be whistleblowers that:

    Whistleblowing is heart-attack, divorce and miscarriage territory. If you are determined to be a whistleblower make sure you change your employing agency first.

  3. Barry Reynolds

    I can’t wait for the Royal Commission into the rabble currently supposedly in charge and if it happens ALL pollies still alive should come under its scrutiny.

  4. Marilyn Shepherd

    I wish there was this much outrage about the trading, trafficking, murder, rape and torture of refugees.

  5. Angela

    This whole thing has made me so angry. This must be investigated by AFP. This is not just the usual scenario of ministers leaking about each other to the media.

    The Australian newspaper’s treatment of this was grubby and nasty and they should be reprimanded for their handling of it. What was their motivation? Surely if this woman was a witness in a criminal case this would be illegal and the newspaper would be disciplined?

    Briggs and his mates still don’t get it. I’m just really glad I’m not that woman because most people in the Public Service would know who she is now.

  6. WHITTON Howard

    Bernard – re: ‘… laws mean little if powerful people are angry about a whistleblower.”

    While generally true as a proposition(rule of law issues aside), the problem in this case is that ‘(mis)conduct’ or wrongdoing by a Commonwealth Minister is not caught by the Public Interest Disclosure Act 2013 (Cwth): Ministers are exempt.

    In consequence, the DFAT public servant concerned is not a protected ‘whistleblower’, and her disclosure of then Minister Briggs’s (mis)conduct is not a protected disclosure. For the same reason, exposing the public servant’s identity in a case such as this is not a breach of the PID Act 2013.

    Arguably, Ministerial (mis)conduct – including corruption – should be subject to the protected disclosure provisions of the Cwth PID Act 2013, as it is in the generally similar legislation of most Australian States and Territories, but there it is: in the Commonwealth, it’s not.

  7. Angela

    Whitton – thanks for your input

    So the bottom line is, if a public servant makes a complaint against a Commonwealth Minister, neither the public servant nor their disclosure is protected.

    If this is the case, it is very serious. Given the public attention this case has had, it would be a brave person who ventures forward now to make a complaint.

  8. WHITTON Howard

    @Angela – that’s not quite my position. In short, a ‘complaint’ cannot be made against a Cwth Minister under the Public Interest Disclosures Act 2013, simply because Ministers and their conduct are exempt from the Act: end of story. (Note: the position in relation to Ministers in the States and Territories is different, as different laws apply).

    Anyone can make a complaint about the conduct of a Cwth Minister in other ways, however: to police (for fraud, theft, assault, bribery, and other criminal offences); to the Electoral Commission (for electoral fraud); and direct to the Prime Minister (for a breach of the Standards of Ministerial Ethics).

    I hope that clears it up. I agree – this is serious.

  9. Ross Hamilton

    I will dispute how good the alleged protection of public sector whistle blowers actually is. Once the the Public Service Act was implemented in the late 1990s, it gave the Code of Conduct the force of law. As such, that overrides the later Act which provides protection to whistlerblowers in the public interest. This was amply demonstrated when someone leaked ie blew the whistle, on Tony Abbott telling blatant lies about pay deals for military service personnel despite being repeatedly informed otherwise by his Dept. A very public witch hunt was then conducted by the Public Service Commissioner. When that failed, he resorted to a public appeal for someone to name the culprit. And it sure as hell wasn’t to reward them!

  10. Helen Sykes

    Thanks for this article, Bernard. I’m outraged at Turnbull’s failure to act. He’s assuming that we will all soon forget about the issue, and it will simply go away. We must make absolutely sure that that does not happen.
    The female public servant involved will pay for this for the rest of her career. Revealing her identity was a despicable act. If it’s not a crime, it should be.

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