Whistleblowers PO Box 129, NSW 2500

“All it needs for evil to flourish is for people of good will to do nothing” Edmund Burke

30 August 2019

Senate Standing Committees on Environment and Communications Attention: Committee Secretary PO Box 6100 Parliament House Canberra ACT 2600 By email [email protected].

Dear Committee,

I refer the Committee to submission number 33 published by the Parliamentary Joint Committee on Intelligence and Security (PJCIS) earlier, last month. I have attached a copy as an attachment to this submission as it comes from a different perspective.

I refer you also to our submission in March 2018 to the PJCIS on the Foreign Interference Transparency Scheme and its three companion bills: the source of some of our woes.

At the time some of the more egregious anti-journalist provisions were downplayed, the government saying it would only apply to those, who willingly communicate secret information, endangering the health & safety of the public and or prejudicing national security. We needed to have more information, but government kept its cards close to its chest, waiting to see who would blink first. We watched knowing that this game would play out in the usual way, to our loss as a people and a democracy. Then we all moved on - uneasily, aware we’d probably been had. And we had!

I want you to start by having a look at the work of George Williams, the Anthony Mason professor of law at the University of NSW, initially by way of the window he provided into his wider work in an article he wrote in 2011. http://smh.com.au/politics/federal/the-laws-that-erode-who-we-are-20110909- 1k1kl.html

I’d like to think that his work and the circumstances we now find ourselves, persuades you to take a second, much more thorough look at all, of the ‘terror related’ legislation enacted since 2002 in the name of keeping us safe. We need to systematically, review it through a human rights/free expression lens rather than the intelligence/security lens

1 and amend and or repeal the more egregious laws, now that we know that they have eroded who we are.

We are in this predicament, because we still accept that the government does not have to show us what they know. It’s secret stuff, they say. We can’t tell you, because our allies would be compromised. Trust us, they say, we know best, we’ve got your back. Well clearly, they have not got our back - the facts speak for themselves. Some things should never be left for executive government to decide. Invading Iraq taught us that.

I urge you to apply the lessons of Iraq: because while a free press, like the executive, the legislature and judiciary is not negotiable, the intelligence and security ‘spend’ always is. As a ‘people willing to trade their freedom for temporary security deserve neither and will lose both. If we restrict liberty to attain security, we will lose them both. Any society that would give up a little liberty to gain a little security will deserve neither and lose both.’ (Benjamin Franklin, US founding father).

Term of reference (a): the disclosure and public reporting of sensitive and classified information, secrecy and raids.

I’ll begin by channeling a little more Benjamin Franklin circa 1737 to remind you why, we shouldn’t have to keep on learning the same lessons. “Freedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins.’ Please don’t dismiss the idea, because the word tyranny makes it seem extreme. Instead think about it and how to strengthen free speech and expression in the face of increasing adversity.

Up until early June this year we lived in hope that government assurances meant something: that journalists in this country would not be prosecuted for welcoming, even soliciting sensitive and classified information of government wrongdoing. We had all but closed our minds to the possibility, that the ‘terror’ laws would be used against journalists in the way they have against whistleblowers David McBride, Richard Boyle, Witness K and his lawyer Bernard Collaery (refer also, attached submission). When the Australian Federal Police (AFP) raided the home of News Corp journalist Annika Smethurst and the offices of the ABC last June, it became very clear that government was very willing to criminally prosecute the media for receiving, handling, copying and or publishing sensitive and classified information of its wrongdoing, as the terror driven changes to the criminal code have meant that each element in and of itself could now be prosecuted as a crime. But there it is, and it is not an accident.

WikiLeaks pioneered open source journalism to protect whistleblowers by providing a way for them to leak information anonymously and directly to the public to maintain its integrity. It set in train, global changes to the way we relate to our governments, because it gave the ordinary citizen the opportunity to know that what we were being told, was not borne out by the facts.

Journalists responded by forming groups like the International Consortium of Investigative Journalists (ICIJ) to deal with their new reality. It is a global network of investigative journalists in 80 countries who collaborate on in-depth investigative stories to get the issues out there and into the public gaze. To give you some idea of the scale of work involved for journalists and law enforcement agencies, the Panama Papers, included ‘approximately 11.5 million documents – more than the combined total of the Wikileaks Cablegate, Offshore Leaks, Lux Leaks’ etc. The Paradise Papers ‘is a set of 13.4 million confidential electronic documents relating to offshore investments, initially leaked to German reporters’, who in turn shared them with the ICIJ and a network of

2 more than 380 journalists, because the documented wrongdoing was global in its reach. (source: Wikipedia)

The data leaks are giving us almost real time access to government and other records, well ahead of the usual embargoes imposed on government records by the ‘thirty-year rule’.

On this point the Palace Papers may prove instructive, as the High Court decided this month to hear an appeal on a Federal Court decision last February, which ruled against the release of the letters between the Queen and former governor-general Sir John Kerr about the Dismissal of the Whitlam government – aka the ‘Palace Papers’. It is absurd that in 2019, government through the Archives Act 1983 can continue to refuse to release the correspondence, which also includes letters between Sir John and the Queen's private secretary as well as Prince Charles, on the basis they are ‘personal’ rather than Commonwealth records. Who was John Kerr working for, I ask you?

By being allowed to classify the Palace Papers as ‘personal’ John Kerr’s estate has been able to lock them away until at least 2027 and potentially, indefinitely owing to a right of veto held by the private secretary to the Queen. We needed to know at the time when it was politically and practically, relevant – in keeping with our right to free political expression. Not fifty or more years later.

The National Library should be tasked with the review of existing classifications, with a view to reducing, refining and redefining classifications to develop a system more responsive to the public’s demand for greater openness and accountability in government and, allow the new system to be applied to existing files, with a view to de- classifying as many as possible for public research.

Why ask a library to do it? Because a library looks at information through the lens of history. It knows its importance to a properly, functioning representative democracy.

That review should report to the parliament through the Commonwealth Parliamentary Joint Committee on Human Rights, which should be tasked with the job of interrogating, implementing and overseeing the reforms and particularly in the area of re-defining ideas around secrecy and what is legitimately, a national security concern.

Parliament needs to be pushed into accepting that the ‘tag’ national security must not be allowed to stop sensitive and classified material from being de-classified, when the information leaked, disclosed and reported shows the government and or its agency (‘government’) acted wrongly, even criminally and that they are trying to cover it up, by prosecuting whistleblowers and journalists.

The review should identify relevant case studies: for example, the wider Witness K, Bernard Collaery story. It started with an illegal, unilateral land grab in the 60s, in granting an offshore exploration permit to Woodside. There was no question it was in Portugal's waters. Government did whatever it could to keep it. Ignored Portugal's calls for discussion, lest it end up in international arbitration. Gave Indonesia the go ahead to foment trouble in Dili to justify its invasion of it. Turned a blind eye to war atrocities and deliberate starvation. Ignored the UN and tried to dud us into accepting their narrative of the events. Bugged, deceived, conned and exploited the newly, independent country. Used and abused its commercial relationship with Woodside and others, to force an agreement on Timor L’este as recently as last year. The agreement does not include reparations for the billions thieved, but it should.

This sorry tale started with a commercial partnership with Woodside in the 60s, which continues. Which is one very good reason why the recent amendment to include 3

‘commercial interests’ within the definition of what the ‘national security or interest’ means, should be scrapped, without there being a caveat that the classification is lost, where sensitive and classified information of wrongdoing and or illegality is used against the whistleblower and or becomes publicly known.

Inevitably, more journalists, academics and eventually, ordinary citizens are going to want to ‘fact check’ their government’s public assurances through the various online websites like WikiLeaks and the ICIJ, now that we have access, without having to wait up to 30 years. It’s a glimpse into the future where government is truly open and accountable.

The Paradise Papers are relevant to this inquiry. They come from Appleby, a legal firm residing in an offshore tax haven, the corporate services providers Estera and Asiaciti Trust and business registries in 19 tax jurisdictions. The Australian Taxation Office (ATO) downloaded leaked documents that show that global mining giant Glencore Plc may be unlawfully, shifting profits from high-tax to low-tax jurisdictions by use of unrealistic, non-commercial exchange rates. Which brings us to the High Court decision on 14 August in Glencore & Ors v. Commissioner of Taxation of the Commonwealth of Australia & Ors (‘Glencore’), which found that the ATO’s acquisition, copying and use of the ‘leaked’ documents did not breach the secrecy of Glencore’s communications with its lawyers. It found the huge data dump into the public space effectively, negated the privilege.

The ATO, like regulators everywhere is reported to be angry that companies are using legal professional privilege to stop ‘leaked’ documents being used in their investigations. But I’m angry too, that like Glencore the government is trying to stop ‘leaked’ documents being used against it in prosecuting ATO whistleblower Richard Boyle.

ATO’s second commissioner Jeremy Hirschhorn claims the Glencore decision is not “just a win for the ATO”, but a win for the “Australian community who rightly expect the ATO to use all information available to ensure large corporations and those who seek to hide money overseas are paying the right amount of tax” (The Guardian, 15 August 2019).

Jeremy Hirschhorn is right. We do ‘rightly’ expect it to use all information made publicly available by the press; but not to abuse its privileged position to conceal its own wrongdoing by prosecuting whistleblower Richard Boyle. His good work has saved the ATO from itself and many a small business, from paying a tax debt they didn’t owe. Here, the Attorney General has got it badly, wrong. The public’s interest does not lie in funding a protection racket for the government or by extension, its agencies.

The Glencore decision bells the cat!

It is morally and legally, wrong for government to be able to criminally prosecute anyone for the unauthorised disclosure and public reporting of sensitive and classified information, when that information is evidence of its own wrongdoing. Governments are not above the law and our laws, must provide for that eventuality.

It is also wrong for government to maintain that a leak of sensitive and classified information has prejudiced our national security to support a decision to investigate and or criminally prosecute an individual, after that claim has been tested in the public space and seen for what it is. Let’s call it out by re-framing the recent controversies now we have better information.

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Paradise Papers, Glencore and Richard Boyle: Here the leak may endanger the health & safety of the Glencore executives, which the ATO thinks is not unreasonable as a matter of international public policy, except when it applies to it.

‘Afghan Files,’ David McBride and the ABC: The leak and report may threaten the health and safety of those alleged to have committed war crimes and those who covered it up, now the IGADF is investigating. The leak can’t possibly damage our national security or reputation, when every other john in the war zone knows, far more than we do.

Witness K and Bernard Collaery: 's Xanana Gusmao and Ramos Horta have very publicly, urged the to drop its prosecution of both men. The truth is well and truly out internationally: any damage done to our national reputation and security can be properly, sheeted home to the government in the past, now and into the future.

The ASD leak, NewsCorp and journalist Annika Smethurst. Post raid it is a conversation we needed to have, so no damage there. But did we miss something? Is it also about dataset matching? Robo-debts on steroids.

There’s more to come on these stories, so we need to draw the line now.

Government and or its agency should not be entitled in law to bring criminal charges for the disclosure and public reporting of sensitive and classified information in the public interest without it being required to prove in an open court: a) how and why the disclosure endangers the health & safety of the public and or prejudices national security; b) why the charges don’t have the practical effect of concealing government and or agency wrongdoing, c) why, after it being placed in the public domain it should not be de-classified.

Details of the information disclosed must be relevant to the proceedings. The applicant should not be allowed to rely on the assurances (sworn or not) provided by its legal representatives.

Any application for a warrant for arrest and or the production of evidence of sensitive and classified information should be heard in open court based on the guidelines set out above.

The Home Affairs Minister Dutton tried to calm our fears earlier this month with his very public direction to the AFP to think before launching into a raid. It could be an attempt to deceive us into abandoning our objections or evidence of his micro- management of the AFP.

It’s probably both. The AFP should be independent of government for the decisions it takes and be required to answer for them publicly, by reference to the guidelines set out above in relation to its application for a warrant.

Information should not be kept secret because it came into existence within or in relation to an intelligence or security agency, which is also how the Public Interest Disclosures Act (Cth) 2013 (the PID act) defines it. Sensitive and classified information

5 must by its character and content be of a quality that would if publicly known, endanger a person and or our national security. It should be construed narrowly, to exclude it being used to conceal wrongdoing or protect a government’s political reputation.

It is time to publicly and formally consider whether preferring secrecy in government over openness and accountability to the extent that we do now, continues to serve our democratic and other needs. One example might be: information should not be allowed to be kept secret, when an individual acting in an official capacity, wrongly classifies it as personal to avoid accountability (refer eg. the Palace papers).

The recent ruling by Federal Court Judge Koeltl in a case brought against WikiLeaks and others in regard to the alleged hacking of the Democratic National Congress (DNC) emails during the 2016 US elections is cause for some optimism here and globally. The judge found WikiLeaks was entitled to publish the emails, which means no laws were broken. This decision is being trumpeted as highly significant, because it could ‘impact upon the US extradition proceedings against WikiLeaks founder Julian Assange as well as the ongoing imprisonment of whistleblower Chelsea Manning.’ Which is why the - Judge's ruling throws huge spanner into US extradition proceedings against Julian Assange - http://www.informationclearinghouse.info/52021.htm Judge Koeltl found the DNC emails were not secret just because the DNC said they were, it was not criminal to 'solicit or welcome' stolen documents, so long as the publisher (that's Assange) did not participate in the theft, and if Assange could be held liable for that then, 'so could any other publisher doing what it needed to do, to ensure the public had the information it needed to hold powerful actors to account’. The Koeltl judgment is a mighty blow for freedom of expression, individually and in the media. It rightly, reflects our belief that we enjoy a right to free expression. That belief has its roots in centuries old English common law and practice, in place before the US First Amendment was formulated. It is no less real, because our implied ‘constitutional right’ to political communication hasn’t been turned into words on a page. That right was been given a voice by the international covenants on human, civil and political rights to which our nation is a party. In turn those covenants have found expression in our conduct, aspirations, policies, laws and more recently, in some states and territories, new human rights laws.

For example, section 16 of the ACT Human Rights Act 2004 states that (1) Everyone has the ‘right to hold opinions without interference and (2) Everyone has the right to freedom of expression’. This right includes the ‘freedom to seek, receive and impart information and ideas of all kinds, regardless of borders, whether orally, in writing or in print, by way of art, or in another way chosen by him or her.’

And then, there’s the Victorian Charter of Human Rights and Responsibilities Act 2006, which is in similar terms, before setting out the special duties and responsibilities that attach to the right: which right ‘may be subject to lawful restrictions reasonably necessary: (a) to respect the rights and reputation of other persons or (b) for the protection of national security, public order, public health or public morality.’

Queensland has followed suit with the most broad and far-reaching human rights legislation in February this year, with its Human Rights Act (QLD) 2019. It protects 23 fundamental human rights drawn from international human rights law, including freedom of expression and taking part in public life. It takes effect 1 January 2020 and forms part of the administrative law obligations and oversight mechanisms that ‘hold government to account’.

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This trend is only going to continue, which is one reason why the unfortunate High Court decision in Comcare-v-Michaela Banerjie this month, will eventually be seen for the narrow, overly technical decision it is. It amounts to a slap down, for framing her right to free speech in the Australian Administrative Tribunal (AAT) in terms of it being akin to the US First Amendment, which in constitutional law - it isn’t. And then arguing in the High Court, that the public service code of conduct imposed an unjustified burden on her implied right of political communication. But at the end of the day, I think this decision will wither on the vine as demands grow and human rights acts multiply and flourish. Michaela Banerjie worked for Peter Dutton’s Immigration. She disagreed with the government’s refugee policy and said so, anonymously posting some 9000 tweets over time on Twitter. She was eventually identified and sacked, for contravening the public service code of conduct. In a 4:3 decision the High Court overturned the earlier decision handed down by the AAT, finding our ‘implied freedom of political communication’ was not the same thing as a personal right to free speech, like that conferred by the US First Amendment. Finding instead that the public service code of conduct did not impose an ‘unjustified burden on that implied freedom of political communication’ as it was required for the ‘maintenance of an apolitical public service.’ I doubt this is an idea that is likely to gain much traction in the long term, given the High Court also found she ‘was required’ to uphold the ‘values’ of the code of conduct under the Public service Act (Cth) 1999 for it to remain an apolitical service. This is really odd, because those same public service ‘values’ require an employee to ‘strive for the best results for the Australian community and the government,’ which immediately opens up a legitimate space for differing ideas and opinions for all the right reasons. It can only be a good thing if the employee is striving as they should, and the government is smart enough to encourage it, because at the end of the day the decision remains with government. Stifling debate, stifles frank and fearless advice, it’s corrosive and it risks timely leaks, where the community’s best interests are running a poor second to political needs. When government is not ‘as one’ with the community in making its decisions, but above it and the law. There’s a real tension in the public service ‘values’ that should be welcomed, if an apolitical service - in a party-political sense - is to be established and maintained to further the community’s best interests. I think it fairly, obvious that maintaining an apolitical public service demands that the employer recognise and accept that their employees have political allegiances, while calling on them to put them to one side in serving the community’s best interests. Now that, is a model for genuine inspiration and cohesion in the public’s interest. I don’t know why the government decided it was in the public’s interest to transfer the ‘Banerjie’ matter to the High Court, but I would like to know, as the Public Service Act (Cth) 1999 was amended in January this year by the National Security Amendment (Espionage and Foreign Interference) Act 2018 to strengthen secrecy. And because of the government’s policy announcement on 19 August which pointedly, restricted the public service’s role to that of an enabler. I sense the government is developing a system that is oppressive, to the point of requiring lickspittle subservience. It can only end badly.

The Commonwealth Parliamentary Joint Committee on Human Rights established in 2012, should be tasked to review and consider amending the Public Service Act (Cth) 1999 and the related code of conduct to explicitly identify freedom of expression and whistleblowing and or public interest disclosures with the public's interest in promoting integrity, accountability and transparency in the public service – consistent with the PID act. That is, that blowing the whistle demonstrates integrity and loyalty.

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My purpose here, is to ensure a proper consistency in law, so that circumstances like those identified in the Comcare-v-Michaela Banerjie and ACD13/2119 -v- Stefanic (2019) FCA 548 decisions would be largely avoided if the code of conduct explicitly, ruled out exploiting the existing loopholes.

Term of reference (b): the whistleblower protection regime and protections for public sector employees.

Every public interest disclosure (PID) act and including section 10(2) of the federal act, provides an absolute privilege in respect of proceedings for defamation, which requires the alleged wrongdoing set out in the PID (hereafter the PID ‘Information’) to be fully ventilated, because the truth or otherwise of the PID ‘information’ is central to it. Which I think explains why defamation proceedings are not used to shut whistleblowers up, other than to force them into a deed of release. As a hearing would leave the employer open to public ridicule and condemnation and possibly, even prosecution for the alleged wrongdoing.

Note that same absolute privilege also applies to circumstances where an employment contract wrongly, provides for an employee to be terminated for making a PID.

There’s a lesson to be learnt here - that to be effective the, PID ‘Information’ has to be relevant to defending any criminal or other charge, brought in respect of the disclosure and publication of sensitive and classified information.

The existing grounds under section 10 are not effective, because details of the PID ‘Information’ are not relevant to any claim envisaged by the act. They only protect a whistleblower for making a PID or where the employer tries to enforce a contractual or other right on the basis of a PID. And it is a relatively, easy task for an employer to make sure there is no credible causal link between handing in the PID and say, the criminal theft of sensitive and classified information, as is the case of ATO whistleblower Richard Boyle.

Inexcusably, while the PID act exists to promote integrity in government, by encouraging and facilitating public interest disclosures that say, show or tend to show that criminality is involved, it is silent in relation to those things that a whistleblower ordinarily does, in obtaining the solid, even prosecutable evidence of wrongdoing that investigative authorities require to proceed. It is also silent in not anticipating the need under section 41 for sensitive and classified information to be de-classified for disclosure, where that material discloses illegality and wrongdoing for the purposes of a trial, consistent with general law and the objects of the PID act. And for not qualifying the definition of intelligence material, which should be pulled back, to include only the material that on its face poses an imminent danger to an individual if their identity is revealed. Some limited redaction should always be preferred over withholding the entire document, in the interests of good governance and justice.

They are just some of the loopholes that government relies on in exploiting the recently, legislated ‘terror related’ laws by criminalising ordinary, even desirable conduct - because every PID ever made has required the whistleblower to gather evidence for it to be investigated by the proper authority. It invariably, involves gathering, recording, copying, discussing, disclosing and or publishing sensitive and classified information of wrongdoing.

Therefore the criminal laws and PID act should require a court to determine whether sensitive and classified documents in the PID ‘Information’ would: if investigated by a proper authority, show or tend to show that the prosecuting party may or has acted

8 unlawfully, such that the acquisition, copying and public use of the PID ‘Information’ is not in breach of the prosecuting party’s security classifications and or communications or the criminal code.

More generally the acquisition and or use of government information should not be an offence, where the intention is to ensure the exposure and investigation of illegality and wrongdoing by the proper authorities and or political representatives - as encouraged and facilitated by the PID legislation.

It should provide that in seeking to deprive the wrongdoer of the opportunity to conceal, continue to conceal and wrongly, validate the alleged wrongdoing - the whistleblower stands in the shoes of the government’s better self – as would a court in exercising its discretion to refer PID Information of criminality or other wrongdoing to a proper authority for investigation. Section 10 of the PID Act should also be amended to protect a whistleblower, who ‘pursues’ or continues to pursue’ the proper, investigation of the PID ‘Information in order for the PID ‘Information’ to be fully explored in court to expose the consequences of it not being investigated by a proper authority. ‘Pursuing’ the investigation of a PID should include any action or conduct taken to get the PID ‘Information’ investigated and dealt with, from urging and reminding the agency of its obligations, all the way through to taking it public.

Which is why suppression orders should not be readily available where it can be shown that the alleged wrongdoers seek to conceal wrongdoing, by so doing.

I refer the reader to the recent High court decision this month in Glencore for the way the ATO, approached the issue of a party seeking to conceal wrongdoing from the proper authorities.

I want to say something about the PID act more generally. It has been a huge flop, because proving the causal link between ‘handing’ in a PID and a reprisal further down the track is mostly futile. Most employers make damn sure that the termination process is procedurally fair and has no credible connection with ‘making’ a PID. ‘Making’ the PID is construed very narrowly to handing it over and many hands later, it is impossible to tie that act to say, a re-structure which coincidentally, removes the whistleblower’s job altogether or ensures that the whistleblower is placed in an impossible situation. The more bizarre, the better it seems. I’ve known of a whistleblower, who was required to manage her research laboratory, without being able to enter it. Or another, who was required to continue to do transplantation surgery, without being able to enter the building. And another, who was relegated to a small renovated toilet, without window, phone or computer in another hospital and not surprisingly, she failed her performance review. If they can make you sick, get you to make a Comcare claim, then deny liability on some pretext and starve you into a deed of release, then so much the better.

PIDs are about wrongdoing, whether criminal or not, but if it also involves the disclosure of sensitive and classified material, the risk of an employer abusing the legal process rises exponentially, in lock step with the increasing threat of being exposed and held to account.

ACD13/2019 -v- Stefanic & Ors is just such a case.

ACD13 was a security officer working for the Department of Parliamentary Services (DPS) on 25 June 2018. He ‘made’ an internal disclosure, by delivering it by email to the

9 required recipient. It concerned the ‘investigations and review processes’ of the DPS and provided documents, with examples of bias, cover-up and lying: including the cover-up of a threat of physical violence made on 25 June 2016 against an unidentified DPS staff member by that person’s DPS supervisor and lying to a Senate Estimates hearing. By their nature, the issues identified in the June PID would have been a topic for gossip and discussion within the DPS community for years.

On my reading, a DPS officer talked with ACD13 about the processes under the PID act, did nothing to allocate the PID for investigation, took some annual leave and otherwise dallied for nearly four months between 25 June and 9 October. He may have thought ACD13 a pest and likely shared as much and more with his colleagues, smiling to think they had the whip hand.

On 9 October a DPS officer intercepted some mail to a politician, opened it and shared its contents with at least two others over the period 9 to 15 October. Two decisions emerged. One two days later, to allocate the June PID for consideration and investigation. The other on 15 October, to charge ACD13 with the unauthorised disclosure of Commonwealth documents to a third party in breach of the Parliamentary Code of Conduct and to impose restrictions on his work. ACD13 identified the mail as his and an attempt to make an external PID, following on from the ‘June’ PID.

But we don’t know who opened the envelope or who gave it to the senior officer, who assessed its contents in the company of another. Whether any of them, was the authorised recipient, who’d been fielding ACD13’s questions over nearly four months. Or more significantly, whether any of them or their mates were implicated in the wrongdoing alleged in the June PID. We don’t know, who made the decision on 11 October to allocate the June PID or whether it was on the advice of another. We don’t know if they understood it would in effect, stymie the ‘attempted’ PID because that is what it did. Or why allocating the June PID after nearly four months was their priority.

Incredibly the evidence in court was that they did not know ACD13 made a PID or what its contents were - in June. Just that. Nothing about the elephant in the room - that between 9 and 11 October one or more of the respondents knew ACD13 made a PID and what it was all about.

I think it more likely than not that allocating the June PID on 11 October was designed to buy time to be able to, provide a fair process around the alleged breach of the code. Believing, perhaps even knowing that there was no appetite up the chain for the June PID to be investigated anyway.

These questions could have been teased out in cross examination had the substance of the two disclosures been relevant to the proceedings. But they weren’t, because the respondent obtained orders for the documents to be suppressed so as ‘not to prejudice the Commonwealth’s interests.’

There is no explanation, but there should be. We should be able to test whether the government’s trumped-up charges were designed to rid itself of a troublemaker, who wouldn’t let the PID wrongdoing go unchallenged. The court’s decision to suppress the substance of the disclosures meant ACD13s had his hands tied behind his back to protect the government’s reputation.

What we do know is that the only evidence before the court for the respondents, was provided by their legal representative based ‘on information and belief’ as to the relevant officers ‘states of mind and beliefs.’ It denied ACD13 the opportunity to tease out some of the more likely scenarios I explore above, as her knowledge and belief only went so far in relaying her client’s instructions.

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This practice is not uncommon in interlocutory matters, but it should not be allowed in substantive proceedings pursuant to the PID act. To those readers, who would say ACD13 could’ve got orders for them to attend for cross examination, I say you need sworn evidence in chief, to be able to cross examine a hostile witness properly, which is why the PID act should require the witness to attend to give evidence - not their lawyer - to facilitate the purposes of the PID act. It’s this sort of practice that would, necessarily, shake out the lies and bad behaviour before it took hold.

On 26 October ACD13 was suspended, pending an investigation by Ashurst Lawyers into the alleged breach of the code. Mind, the very idea that trying to make a PID could be in breach of the code is preposterous. The Public Service Act (Cth) 1999 must be amended to indicate that public interest disclosures demonstrate integrity and loyalty to the service.

Ian Temby QC from Maddocks Lawyers was commissioned to inquire into the allegations contained in ACD13’s June PID. The DPS sought an extension from the Ombudsman on 9 January and again on 22 February 2019, with the result that the report was due the day after the hearing on 18 April. We don’t know whether there was an investigation or whether it was completed, but it should be completed and made public. Alternatively, the Senate should ask for it to be produced to Parliament, to expose and review any actions taken or not taken to re-establish accountability within the DPS.

And I would like to know even now, who did what to whom to deny ACD13 the relief he sought.

This case gives a whole new meaning to ‘making’ a PID, because but for the interception on 9 October 2018, the DPS would not have known about the ‘attempted’ PID and the allocation of the internal PID for investigation would probably still be pending. It went right down to the wire, because when the allocation was made on 11 October 108 days had elapsed in breach of the notional 104 days set out under sections 43(5) and 52 of the PID act. If ACD13’s attempted PID had been found to be legit the subsequent events may have been very different.

His Honour Griffiths J describes the PID act as a “statute which is largely impenetrable, not only for a lawyer, but even more so for an ordinary member of the public or a person employed in the Commonwealth bureaucracy.” I say it is all of that and more.

Which is why I repeat here, that section 10 of the PID Act should be amended to protect the whistleblower, who continues to pursue the proper, investigation of the PID ‘Information in order for the, PID ‘Information’ to be fully explored - in court if need be - because that is what ACD13 was doing. For ACD13, ‘continuing to pursue’ the investigation of his June PID has meant, urging and reminding the DPS do its job over months, gathering more information to document the unfolding events and trying to use it to make an external PID to a politician and he should have been protected by the PID act for so doing. He should have been entitled to argue why he was pursuing the investigation of the PID ‘Information’ by reference to its substance and the actions of those officials who would punish him, to conceal it. The government’s legal costs would have included overarching legal advice, the ‘Deegan’ investigation from Ashurst Lawyers, the ‘Temby’ investigation from Maddocks, the preparation for and attendance in court and finally, drafting and delivering an executed deed of settlement and release, which no doubt would have required ACD13 to keep his mouth firmly shut in return for their costs being waived. That cost would be substantial. It should be weighed against the awful grief it caused ACD13 and the damage done to

11 the DPS by allowing it, like government to operate outside the law. There may be a role for the Senate here.

Term of reference (c): please refer to our submission to the PJCICS last month regarding the adequacy of referral practices of the Australian Government in relation to leaks of sensitive and classified information.

Term of reference (d): appropriate culture, practice and leadership for Government and senior public employees.

I’ll begin with a question. Why has Centrelink’s robo-debts survived so long? Well, government judges it a success. $3.7 billion in revenue so far and growing. It apparently, does not matter that a ‘discrepancy’ identified by digitally, matching the two datasets generated by the ATO and Centrelink is not a ‘debt’ in law.

The robo-debt does not exist in law, because the Social Security Act (Cth) 1991 does not stipulate that a debt arises when automated tax data is averaged to produce a fortnightly figure, which differs from the earnings reported by the client on any one fortnight (s.1222A(A)(a)). Section 1223 does state that a debt arises, when there is a difference between the benefit paid to the recipient and their true entitlement. If Centrelink staff had been directed to use the potential discrepancy ‘flagged’ by computer algorithm to check through their records with the client, all would have been well in the garden. Instead, staff are directed to issue a formal debt notice without checking, to save money. Problem is, it’s inaccurate and it’s illegal.

Many worthy reviews have been done. Many have paid debts they didn’t have. Many robo-debts have been overturned by the Ombudsman and in the AAT, but they remain private matters and so, out of the public gaze. Legal Aid Victoria challenged the lack of a legal foundation in the Madeleine Masterton case number VID73/2019 last February. Centrelink waived the debt before it went to trial and is reportedly, trying to settle other claims rather than have the legal arguments adjudicated in a court – refer article ‘Centrelink wipes ‘robo-debt’ at centre of test case’ in the SMH 5 May 2019.

It is a deliberate con. And there’s more to come, because it is considering, ‘expanding the scheme to target thousands of pensioners and other “sensitive” welfare recipients originally quarantined from data matching, to address a projected $600m shortfall” according to confidential documents seen by Guardian Australia this week.

They’re apparently, on a bit of a roll. And they’re completely, unfazed by criticism. The attitude is one of, well if you’re mug enough to cop it, you deserve it. The policy and the attitude signals that government has completely abandoned proper standards of government administration. Like the ATO did with its garnishee ‘scam’ that got whistleblower Richard Boyle into so much trouble. And likely, how the ASD’s datasets will be deployed, if it gets to operate in the domestic space.

It has echoes in the really, in your face hustles exposed by the Hayne banking and financial services commission and it explains why government resisted having an inquiry until the banks decided, they preferred it to the one being planned by the parliament. This government is learning how good it is, to operate outside the law.

Another example is unfolding in the ‘national security’ space.

Government says lawyer Bernard Collaery endangered national security. Collaery counters that with, the Witness K complaint revealed a ‘cheating culture motivated by

12 commercial interests’ which was both ‘contrary to Australia’s national security interests’ and unlawful.

China says Australian academic Yang Henguin, who has been incarcerated for more than seven months for committing criminal acts endangering their national security, will get a fair trial. Prime Minister Morrison can barely contain himself, rolling out all that lovely rhetoric about why we are not like China. Adherence to international law, human rights, free speech and expression, open trials, proper access to lawyers. It goes on and on.

I think we are uncomfortably like China in this. I barely recognise my own country, when Bernard Collaery has not been able to meet with his lawyers for over a year. And when he does, he won’t be able to tell them everything, anyway, because of the amendments to our national security laws. And his trial will be held in secret, like Dr Yang’s.

I sense there’s a whole lot of nasty macho pushing, shoving and gouging going on behind the scenes, in the name of them protecting our national security and it is truly, depressing in the 21st century. Do they really think any of it will do anything other than endanger our capacity to build longstanding, warmly ethical friendships in our region? I think not.

Incidentally Timor L’este is celebrating the twentieth anniversary of its independence referendum today. Australia will attend bearing gifts, but not the gifts that endure. The underwater optic cable and the upgrade of their military capacity smack more of the self- serving aid program that facilitated ‘bugging’ the Dili cabinet room in 2004. The government seems incapable of understanding that owning up, repaying the billions it stole and releasing Witness K and Bernard Collaery from prosecution would ensure our mutual security for the right reasons.

Another example.

Just as Centrelink has been ‘enabling’ the government’s illegal robo-debts, the ACT Legal Aid seems to be enabling a go-slow for government to penalise Witness K further, by not approving an application for funding made more than a year ago.

At a directions hearing in the ACT Magistrates Court yesterday counsel for Witness K explained that ‘with the exception of ‘limited fees’ to attend hearings in Canberra, Witness K’s case had been conducted pro bono by himself, Robert Richter and solicitors from Corrs Chambers Westgarth, with some assistance from the Australian government solicitor in applying for legal aid.’

He ‘quoted a letter promising that Witness K would have “every proper opportunity to obtain appropriate funding’ and that a ‘decision would be made independent of the commonwealth attorney general,’ warning that ‘refusing legal aid might compromise further hearings and would amount to entering a “parallel universe” of intruding on, rather than facilitating, the interests of justice.’ https://www.theguardian.com/australia- news/2019/aug/29/witness-k-lawyer-alleges-extraordinary-unexplained-roadblock- funding-case

The evidence is in. We are living in a parallel universe. The criminal justice system, Centrelink, Legal Aid and the Home Affairs portfolio are almost certainly, doing the government’s bidding not ours. Now the government has set its sights on the press. The only press this government is interested in is the one that enables it to stay in power and it seems pretty, confident it can bend those criminal ‘terror’ laws to its purpose.

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We can’t allow that to happen.

On the other side of the ledger, open source journalism has developed into a global, collaborative ‘democracy’ project for the benefit of us all. We need more of it and you can see that, in the recognition Julian Assange has received in more than 15 international awards, including the EU’s prestigious journalism award this year. The ICIJ, the McClatchy Company, and the Miami Herald all won a Pulitzer for the Panama Papers. The Paradise Papers won the Polk Award. Many of our journalists have collaborated with the ICIJ in some major work. Adele Ferguson enthralled us with her gripping accounts of bad banking. Who would ever have thought? But then, she was blessed with Counsel Assisting Rowena Orr!

We need more ‘whispering’ whistleblowers, because we can’t expect them to keep copping it on the chin. Chelsea Manning is back in gaol, because she refused to lie for the US state. Ed Snowden is in exile, so he can speak freely. What a dreadful irony. Richard Boyle is facing gaol, because he refused to be silent. David McBride also. He did his duty in speaking up. Witness K, who saved our government from itself. His lawyer Bernard Collaery helped him do that. And Julian Assange, who put the unadorned truth ahead of all else. If he goes to gaol for espionage, democracy will have failed one of its true sons. So, we’d best get cracking.

There’s a sense globally, that we are in for the fight of our lives even though the form that that takes, differs. Hongkong wants to develop as and remain a democracy within China’s One County, Two Systems policy. We need to return to a ‘one country, one system’ policy and that’s not said tongue in cheek, because it’s uncomfortably, close to the truth.

We have never needed our ‘whisperers’ more. We don’t know who you are, but we do thank you, because the information you leaked is doing the job it needs to do and that, is the way it should be.

I like to think those ‘whisperers’ are only just hitting their stride.

Sincerely,

Cynthia Kardell

~~~

Cynthia Kardell

National President Whistleblowers Australia Inc. Website http://www.whistleblowers.org.au Facebook Whistleblowers Australia Inc.

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