by Caroline Ambrus an book 1 Caught in the ACT — Government Cruelty, Collusion and Coverup © 2014 Caroline Ambrus published by irrePRESSible Press 6 Casey Crescent Calwell, ACT 2905 All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system without the written permission of the au- thor, except where permitted by law. ISBN 978-0-9578795-1-5 This book is a public interest disclosure under the ACT Public Interest Disclosure Act 2012. acknowledgements: I wish to thank the following people for their information, involvement, advice, assistance, interest and moral support: John Fleischinger, Monica and Paul Gerondal, Mark and Beatrice Power, Alvin Hopper, Brian Martin, Richard Arthur, Sue and Geoff Nott, Deb Foskey, Chris Braddick. Unpublished documents quoted in the marked citations are available at: www.act-now.net.au “Power should not be con- centrated in the hands of so few, and powerlessness in the hands of so many.” (Maggie Kuhn, 1905-1995) 2 Prologue by Brian Martin aught in the ACT contains the stories of several Canberra residents who Centered the world described by Franz Kafka — a bureaucratic nightmare. They seem to have antagonised government officials because they resisted arbitrary demands. Even worse, they sought to expose rule violations by the officials who were making demands of them. They entered a long tunnel of letters, complaints, demands, appeals, expense and stress. The book also contains an analysis of the ACT government and its problematical features, such as having only one chamber and administering a small population where personal connections and conflicts of interest abound. Most Canberra residents, if they are lucky, will go through their lives and never be aware of the petty bureaucratic struggles occurring in their seemingly placid suburbs. Yet in households here and there throughout the city, there is continual angst and anger at officials and politicians who toss their weight around and are seemingly unaccountable. I do not know the author, Caroline Ambrus. Nor have I independently studied the cases she describes in exquisite detail. However, the cases ring true based on my long involvement with whistleblowers. So let me explain the connection between whistleblowers and the Canberra residents whose stories are told here. A typical whistleblower is a conscientious employee who believes the system works. When encountering some apparent problem, this dutiful employee reports it to the boss. Sometimes the right thing is done: the matter is investigated and, if necessary, problems are fixed. But in some cases, the employee has inadvertently stumbled onto something bigger. For example, the boss might be involved in a scam or tolerating corrupt operations by others. The loyal employee, by becoming aware of the issue, become a threat to the dodgy operators. And so reprisals begin: petty harassment, ostracism, referral to psychiatrists, reprimands, even dismissal. This is just the beginning. The conscientious employee who believes in the system realises that the reprisals are unfair and seeks justice, by appealing to the boss’s boss, to the board of management, to the Ombudsman, an anti- corruption agency, the courts or any number of other appeal bodies. Having talked to hundreds of whistleblowers, what happens next is predictable to me: the various appeal processes and agency do not fix the problem. Sometimes they make it worse. 3 The reality is that taking on a more powerful opponent is nearly always a no-win proposition. Usually the only things that can give the employee a chance are publicity and collective action. Media coverage can make a big difference, and so can efforts by trade unions and action groups. The saddest aspect of the typical whistleblowing story is the unwelcome realisation that the system does not provide justice. The world can be very unfair, and the rules don’t seem to matter to those administering them. The individuals whose stories are told in Caught in the ACT do not fit conventional definitions of whistleblowers. They are not employees, but rather citizens trapped in fruitless struggles over seemingly petty matters. But there are important similarities between their stories and those of whistleblowers. In both cases, something is wrong and, rather than acquiescing, individuals decide to resist, pointing out that the rules haven’t been followed. Reading the stories, the actions by ACT officials look to me very much like reprisals — reprisals for refusing to give in and for pointing out that officials have violated their own rules. In writing Caught in the ACT, Caroline Ambrus has taken the most important step in challenging abuses, which is to document the problem and explain it to others. Some of the stories are quite complicated; the careful explanations of their complexities are one aspect of the book that impresses me. In studying cases of dissent, abuse and bureaucratic bungling, the stories are invariably complex, and it is incredibly hard for anyone to explain what happened in a clear and logical fashion. You do not have to accept Caroline Ambrus’ perspective and interpretations, but there is sufficient material here to show that things could be done better, and should be done better. For this reason, this book deserves to be read. Brian Martin is professor of social sciences at the University of Wollongong and vice president of Whistleblowers Australia. Web: http://www.bmartin.cc/ “In a time of universal deceit, telling the truth is a revolutionary act”. George Orwell 4 Contents Prologue Introduction 1 Section one The structure of ACT governance 3 Chapter 1: Parliament, The weakest link: 5 Chapter 2: The Executive, Rule by majority: 13 Chapter 3: Scrutiny agencies, The safety net that isn’t: 29 Chapter 4: The Judiciary, Rule by minority: 53 Section two How Government wrongs affect people 73 Chapter 5 Complaints and Government “investigation”: 75 Chapter 6: Cruelty and cover-up, up close and personal: 85 Chapter 7: Other cases of Government cruelty: 115 Chapter 8: Conclusions: 141 The author 145 Index 147 Epilogue 159 5 “Behind the ostensible govern- ment sits enthroned an invisible government owing no allegiance and acknowledging no respon- sibility to the People.” (Theodore Roosevelt) 6 Introduction rom 2003 to 2012, I and my ex-partner John Fleischinger were involved Fin a process of complaint and litigation against the ACT Government. The planning authority’s inspectors had committed several wrongful acts in executing a clean up order against him. So we complained. The Government’s response was either/or silence, denials and lies. We discovered that its investigative routine was to question its employees and accept their version of events as being the truth, whilst ignoring the evidence we presented. There was no accountability in spite of the Government employees’ blatant, unrepentant, unlawful acts which were calculated to inflict as much damage on us as possible. By discrediting us and trying to close down our complaint, the Government escaped unscathed. Reputations were not ruined and the careers of the humblest to the highest public servant and politician lurched forward according to the favour of the Executive at that time. I searched for complainants who had suffered the same treatment. I discovered cases where the Government had, as in our case, avoided blame through collusion with its employees and a system wide cover up. The guilty bureaucrats were exonerated and the complainant was appropriately informed, usually belatedly. Typically included was the advice that if he or she was not satisfied with the Government’s decision then the complainant had the right to apply to the Ombudsman for a reconsideration or to the courts for justice. Apart from passing the buck, this was the epitome of cynicism, given that through various means the Government had made it difficult for anyone to assert their civil or legal rights. The two faces of the Government are its benign public image and the private hell it inflicts on those who question its authority. The Government’s heavy handed responses to criticism and its official denial of the truth in the face of evidence to the contrary, can inflict a debilitating personal crisis. Injustice and unfairness rankles with most of us. The anger and the bitterness can last for a lifetime. To reach closure, the victim of Government wrongdoing has to take action. He or she has to choose to give up the complaint and endure the psychological cost of defeat and shame or to fight on and risk more injustice. This means that she or he is trying to resolve the wrong that led to the complaint, while at the same time having to deal with the corrosive effects of the Government’s response. To expose the collusion and cover up, complainants have to persist and take great risks which is what we, and the other complainants, did. As complainants we exhausted every avenue seeking justice. We started off by believing help was at hand from the scrutiny agencies, from policies, instruments and laws which are set up to curb the Government’s tendency to abuse its power. But we did not get a fair hearing and each of us inevitably 1 Caught in the ACT ended up in a court or a tribunal in our quest for justice. We discovered that the real role of the scrutiny agencies was to inform the Government of cracks in administration that need papering over. Without an effective complaints processes and a means of redress, people are left exposed to the full brunt of the Government’s displeasure, which is a life altering situation. Public servants have the power to issue orders against citizens which have the force of law. There are onerous penalties for non-compliance.