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'Afghan Files' Whistleblower David William McBride (Image: AAP/Lukas Coch)

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 [email protected].

Peter Fray

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