There’s little high moral ground between the two major parties when it comes to whistleblowing. What protections exist for public service whistleblowing — and they are quite limited — are mainly thanks to shadow attorney-general Mark Dreyfus, who has pursued protection of public sector whistleblowers since he was a backbencher and, as attorney-general, passed the Public Interest Disclosure Act 2013.
But apart from Dreyfus’ important contribution, Labor has a decidedly mixed record. It was Julia Gillard who falsely accused Julian Assange of breaking the law in relation to the Chelsea Manning cables, only to be corrected by the Australian Federal Police. Gillard and Bob Carr, as foreign minister, declined to provide any support for Assange and specifically denied he was the target of a US investigation into his publishing activities. It was Dreyfus himself who has refused to accept that Edward Snowden is a whistleblower, despite Snowden revealing illegal activities by the NSA, being described as a whistleblower by Republican politicians in the United States, and even former US Attorney-General Eric Holder, who led Barack Obama’s war on whistleblowers, admitting Snowden had sparked a “useful debate” that had led to “appropriate” legislative changes. And Labor refused to pardon one of Australia’s most important whistleblowers, Allan Kessing, whose revelation of security failures at airports led to a significant security upgrade.
The Coalition, however, has been significantly worse. Malcolm Turnbull, as communications minister, imposed Australia’s first mass surveillance scheme — which Dreyfus and Labor supported — despite the well-established chilling effect enabling police surveillance has on public interest journalism and whistleblowing. Attorney-General George Brandis passed laws enabling the jailing of journalists for revealing intelligence operations, gagging intelligence whistleblowers and threatening those who reveal the brutal reality of Australia’s detention camps, while leading the legal harassment of Witness K and his lawyer, Bernard Collaery, over their revelation of ASIS’s illegal bugging of the East Timorese cabinet. Launching his government’s cybersecurity strategy, Turnbull hyped the “insider threat” of whistleblowers like Snowden.
And under this government, as under Labor, the Australian Federal Police have been unleashed on whistleblowers; last week’s raids were at the instigation of the government-controlled NBN Co, in order to stop continuing embarrassing leaks that revealed what a disaster the NBN has become; despite AFP denials that the government knew of the investigation, current Communications Minister Mitch Fifield belatedly admitted he was fully aware of the investigation. A government bureaucrat even accompanied the raid.
As the NBN raids demonstrate yet again, this campaign against whistleblowers is entirely motivated by fear of embarrassment and transparency, not national security or commercial confidentiality. Similarly, the multiple investigations requested by the departments of Defence and Immigration into leaks relating to Operation Sovereign Borders were for embarrassing revelations about the treatment of asylum seekers. Leaks that serve the government, or serve senior politicians, are never investigated, or if investigated never lead to raids of politicians or staffers. There was no investigation into the transcript-quality leaking of the Abbott’s cabinet’s discussion of citizenship-stripping; no raids have followed the leaking of a section of the defence white paper by people aligned with Tony Abbott.
This diversion of AFP staff time to tracking down those who have embarrassed the government — whether Coalition or Labor — mean fewer resources for the AFP’s far more serious challenges of dealing with drug trafficking, organised crime, child abuse and terrorism. It also reduces the likelihood of a whistleblower revealing illegality or genuine threats to security (for example, the Reserve Bank Securency case or Kessing’s brave revelation of airport security inadequancies) from coming forward, knowing as they will the resources and powers of a police agency are likely to be devoted to tracking them down for prosecution if what they reveal is too embarrassing for a government. Each AFP investigation of an embarrassing leak damages our security and the national interest, rather than strengthening it.
The AFP now has additional powers to pursue whistleblowers — the government’s mass surveillance scheme requires the retention of communications data about every Australian. Asked on Friday whether the AFP had used metadata as part of its NBN investigation, Commissioner Andrew Colvin refused to comment, in effect confirming they had. This raises an interesting issue — if the AFP used a warrant to pursue a journalist’s source, that must be reported to the Joint Committee on Intelligence and Security (on which Dreyfus and the driving force behind JCIS’s stronger role of overseeing intelligence agencies, Anthony Byrne, both sit). The committee can demand further information about the incident. More likely, the AFP simply seized the metadata of every NBN employee to see who was worth looking into, but it creates the interesting possibility of JCIS exploring the matter, even if it is under the “leadership” of the odious free speech opponent Andrew Nikolic after the election.
Whatever the political implications of the raids or the blundering of Andrew Colvin, it is in the national interest that this escalating war on whistleblowers be halted, perhaps by establishing a threshold for AFP investigations of leaks that may cause direct harm to national security. The police have better things to do than chase people for the crime of embarrassing governments.