Crime and Corruption within the Australian Public Service Read online at http://victimsofdsto.com/royal (iPad and Android friendly) or Printable PDF
From: Brendan Jones
Brisbane QLD Australia E-mail: victimsofdsto@gmail.com |
Cc: The Hon Tony Abbott MP
Prime Minister of Australia Phone: (+61) (0)2 6277 770 |
To: Her Excellency the Honourable Quentin Bryce AC CVO
Governor-General of the Commonwealth of Australia Phone: (+61) (0)2 6283 3533 |
To: Her Majesty The Queen
Buckingham Palace Phone: (+44) (0)20 7930 4832 |
| February 6, 2014. |
Royal Petition concerning Crime and Corruption within the Australian Public Service
Your Excellencies,
Australia is suffering from endemic crime and corruption within the Australian Public Service. Many of Her Majesty’s subjects have fallen victim,[1] but the Australian Parliament, the Public Service, its oversight agencies, its Commissioner and the Australian Federal Police have all failed to act. Victims who have sought redress through the criminal and civil courts have been denied justice due to corruption within the Australian Federal Police, Commonwealth Attorney-General’s Department and Australia’s largest law firms, all of whom are on retainer to the government.
I became aware of this myself when I made a whistleblower report that public servants within the Australian Defence Science and Technology Organisation (DSTO) had been systemically stealing trade secrets from the private sector and supplying them to the government’s own business partners.[2] Victims have included not just Australian businesses (including small businesses such as my own which were unable to recover from the fraud), but also large companies; British and American.
Failure of the Australian Public Service Oversight Agencies
In my case I confronted Defence with evidence of crime and corruption by staff in the DSTO and the Defence Audit Fraud unit. Yet Defence told me the only avenue for my complaint was to sue them.[3] Then having told me that,[4] they breached the Model Litigant Policy to keep me out of the courts.[5]
Over the last four years I have approached every oversight agency and agent including the Inspector General of Defence, the Inspector General of the ADF, the Secretary of Defence, the Review of the Management of Incidents and Complaints in Defence, the APSC, the Merit Protection Commissioner, the Ombudsman, the Office of Legal Services Coordination, the ACLEI and the AFP.[6] In every single case they failed to act.
Oversight agencies sit on complaints, indefinitely if possible. [7] [89] If pressed to act, they dismiss the complaint without valid explanation, refusing to enter into correspondence to justify their decision.[8] Although in theory complaints can be reviewed,[9] in practice victims find that public servants simply will not hold other public servants accountable.[10] Victims either give up in frustration, or waste years of their lives and their life savings usually without result.[11] Those that persist are met with hostility and even violence.[12] [13] Those before the Defence Abuse inquiries will verify this. [14] [15] [16]
Corruption experts believe the reason the Australian federal government is so corrupt is because it has no independent anti-corruption body (such as Hong Kong’s widely-adopted ICAC model.[17])
Professor of Law at the University of NSW, George Williams says: “The lack of a national anti-corruption body means that dishonesty and breaches of public trust by parliamentarians and Commonwealth agencies may never be detected, let alone addressed.” [18]
Instead victims and whistleblowers are expected to take their complaints to senior officials in the very department in which the corruption is taking place, despite the obvious conflict of interest: “No minister wants to front a press conference on corruption in their department. An internal complaint unit can make the whole thing go away by tipping off the perpetrator and terrorising the whistleblower.” [19]
Corruption expert Howard Whitton warned Parliament: ‘Systemic corruption is corrupt conduct which undermines a system which is put in place to ensure integrity. … Systemic corruption is real in Australia, and I think that [NSW] ICAC has demonstrated that it is very widespread.’[20]
May it please Your Excellency, I humbly pray that Your Excellency shall direct the wisdom and powers of the Crown to dismiss[21] those public officials who have breached the APS Code of Conduct, as was documented in the attached letter to the Merit Protection Commissioner and Australian Public Service Commissioner[22], Secretary of Defence[111] and Multijurisdictional State & Federal Crime Report.[23]
Failure of the Australian Public Service Commissioner
In a series of articles Sydney Morning Herald investigative journalist Linton Besser reported endemic crime and corruption within the Commonwealth public service.[24] [25] Yet Labor Public Service Minister Gary Gray rejected the reports out-of-hand,[26] claiming Public Service Commissioner Mr. Stephen Sedgwick AO had all the power he needs to act on crime and corruption within the public service.[27]
But privately the Public Service Commissioner denied having those powers and refused to act.[28] A legal academic who with a Queen’s Counsel reviewed Mr. Sedgwick’s correspondence said his excuses were ‘very offensive and wrong on the facts to boot.’ [29]
The ultimate deterrent is the risk of being caught. But this Public Services Commissioner’s refusal to take action to uphold the APS Code of Conduct has created an environment where those public servants who choose to engage in crime and corruption can do so without any significant risk of being caught, let alone held to account.[30]
May it please Your Excellency, I humbly pray that Your Excellency shall direct the power and wisdom of the Crown to restore the integrity of the Australian Public Service Commission by dismissal of the Australian Public Service Commissioner, for the reasons stated in my Open Letter to him to which he did not respond.[31]
Failure of the Australian Federal Police
The AFP is a corrupt police agency. They are politicised.[32] They have been implicated in serious crime. [33] They protect corrupt public officials by stonewalling complaints into corruption.[34] They threaten whistleblowers,[35] persecute them for reporting corruption,[36] will manipulate evidence to convict them[37] and silence journalists.[33]
I made a crime report on August 8, 2011.[38] Six months later I was threatened by a particular AFP liaison officer[39] when I wrote to Labor Minister for Justice Jason Clare asking why the AFP had not acted.[40] After the recent election of the Liberal government I resubmitted the crime report on December 3.[41] The AFP have still not acted.[108]
In a just society citizens must be able to report crimes to the police without fear of retribution, safe in the knowledge that those crimes will be investigated impartially without fear or favour.
May it please Your Excellency, I humbly pray that Your Excellency shall direct the power and wisdom of the Crown to restore the integrity of the Australian Federal Police, including measures such as dismissal of the Federal Police Commissioner to be replaced by a person who may restore integrity, accountability and public trust to the force.
APS denying justice through the civil courts
Your Excellency has no doubt heard the truism of our legal system “whomever has the deepest pockets wins.” [42]
No one has deeper pockets than the Commonwealth.
The Model Litigant Policy is a law which on paper prevents the Commonwealth from taking advantage of its considerable resources to unfairly bludgeon a smaller victim into submission. These laws require government lawyers to act fairly, honestly, to offer arbitration and keep legal costs to a minimum.[43]
In practice however the APS openly breaches these laws to deny victims justice through the courts.[44] Although Attorney-Generals have the power to uphold the Model Litigant Policy,[45] in practice they do not. Instead the APS are allowed to use the bottomless pit of taxpayer funds to needlessly escalate litigation[46] concealing crime and corruption, [2] maladministration[47] and abuse.[48] They will spend more money litigating a case than they would to settle it.[49] Taxpayer funds which could be building new hospitals[50] instead end up lining the pockets of Australia’s largest law firms,[51] [52] [53] whom enjoy close links to the government.[54] [55] These breaches continue to this day.[56]
In my case I confronted Defence with evidence of crime and corruption by staff in the DSTO and the Defence Audit Fraud unit. Yet Defence told me the only avenue for my complaint was to sue them.[57] Having told me that, [58] they breached the Model Litigant Policy to keep me out of the courts.[59]
In a just society citizens must be provided access to the justice system so they may resolve their disputes peaceably. But the Australian Parliament has refused to intervene, [62] [63] [64] [65] allowing public servants to criminally and corruptly abuse their power over Her Majesty’s subjects.[60]
May it please Your Excellency, I humbly pray that Your Excellency shall direct the power and wisdom of the Crown so that victims of public service crime and corruption may access the justice system, and by dismissal of those public officials who have abused the Model Litigant Policy to deny justice to Her Majesty’s subjects, some of whom are identified in the attached Multijurisdictional State & Federal Crime Report.
Failure to uphold the Rule of Law
Public servants routinely break administrative, civil and criminal law without penalty. When I asked the Labor Attorney-General Nicola Roxon to uphold the Model Litigant Policy I urged her:
“Laws provide certainty needed by business to operate and for society to function. The Rule of Law holds that laws must be upheld and applied equally to everybody. Failure to uphold the law benefits no one, except those breaking it and is to the ultimate detriment of society. The Attorney-General is our country’s principal legal officer. She should not abdicate her responsibility to be an advocate for the rule of law.” [61]
The Attorney-General’s Department responded it would not be appropriate for Ms. Roxon to comment, and the abuses continued. Other victims tell me the abuses are continuing to this day.
May it please Your Excellency, I humbly pray that Your Excellency shall direct the power and wisdom of the Crown to restore the integrity of the Australian government such that the Rule of Law be restored, such that all of her Majesty’s subjects including public servants shall be treated equally under the law.
Failure of the Australian Parliament
The Labor government led by Julia Gillard were aware of this crime and corruption.[62] Not only did they fail to stop it, but certain senior ministers were criminally implicated in covering it up.[63]
The Liberal government led by Tony Abbott is also aware of this crime and corruption, but showed no interest in opposition[64] and now in government the Minister Assisting the Prime Minister on the Public Service Senator Eric Abetz claims they are powerless to intervene.[65] Instead he has directed me back to the same oversight agencies who have obstructed my complaint for the past four years. [66] [8]
I am not entirely convinced of Senator Abetz’s claims,[67] but I already have raised the matter with his fellow ministers on many occasions without result. Whether genuinely powerless or simply unwilling, the practical reality is that through two governments, one Labor, one Liberal, the Australian Parliament have demonstrated themselves incapable of tackling crime and corruption within the Australian Public Service.
Over the last four years I have approached over 60 politicians, but I have not been able to have this matter raised in parliament.[68] Even after the corruption had been reported in the media,[69] [70] [71] Parliament has shown no interest whatsoever.
May it please Your Excellency, given Parliament’s failure to act, and Senator’s Abetz’s claim that this is because they are powerless, I humbly pray that Your Excellency shall direct the power and wisdom of the Crown to restore integrity to the Australian Public Service and its oversight agencies.
Defence Trade Controls Act 2012
The Defence Trade Controls Act 2012 is dangerous[72] legislation rushed[73] through Parliament which has regrettably already received Royal Assent,[74] giving the Australian Public Service overreaching powers over Her Majesty's subjects.
The law hampers science and discovery by giving public servants the ability to dictate research by deciding what technology, military and civilian, can be communicated to whom.[75] Researchers who communicate without seeking permits from the public service are subject to 10 years imprisonment.[76] The universities have warned it is impossible to conduct basic research under such a regime.[77]
Further high-tech businesses are forced to reveal their technology to the public service.[78] Akin to the hated Writs of Assistance[79] which bred ill-will amongst British colonists in America,[80] [81] [82] this law gives public servants powers to force entry into researchers’ premises without probable cause and to command their assistance to examine their trade secrets; the hard-earned fruits of their labour.[83] [84] Worse, government law firm Clayton Utz says the Commonwealth has no obligation to respect confidentiality[85] and researchers are given no recourse for the theft of their intellectual property by public servants.[86]
Although Labor and Liberal united to pass the legislation, then-Shadow Defence Minister Liberal David Johnson said: “This legislation is a disgrace. It is inadequately prepared, it is inadequately thought through, but the fact is that it contains a very important diplomatic tool for Australian defence industry participants and that is a treaty with the United States.”
But University of Sydney Deputy Vice Chancellor of Research Jill Trewhella points out that US researchers do not have the same restrictions,[87] and American academic Michael J. Biercuk who reviewed the DTCA said “Not even the Americans have this.” [88] Indeed, the US Bill of Rights would not allow it (and nor should English Common Law.) [79] [89]
The legislation was developed by the public service who failed to conduct their own proper research[90] and ignored the concerns of industry. University of Sydney DVCR Jill Trewhella warned: “they're definitely telling me that they're going to have to assess the impact of this regulatory regime on their ability to be competitive and to do their work in Australia. They're definitely worried that it is going to have a big impact and they're concerned that they may have to go elsewhere to do their research.”[91]
Yet the Commonwealth Chief Scientist Ian Chubb arrogantly dismissed the universities’ concerns: “Those boxing at shadows and guessing at what it (the laws) might mean to some unspecified but allegedly 'substantial' number of researchers can continue to do that if it makes them happy.”[92]
This law is a grave threat to Australia’s High-tech industry whom are already departing for better opportunities overseas.[93] [94] Driving high-tech research offshore threatens Australia’s economic and military security. Yet Parliament and the public service continue to ignore to the warnings of the universities and high-tech developers such as myself[95] and have demonstrated no concern over the high-tech exodus.[96]
May it please Your Excellency, I humbly pray that Your Excellency shall direct the power and wisdom of the Crown to compel the government to reconsider this dangerous legislation for the threat it presents to the interests of the people and the nation.
Petition
I understand I have the right to petition Her Majesty, and that under Section 5 of the Bill of Rights 1688 I may do so without fear of retribution.[97]
May it please Your Excellency:
1. I humbly pray that given Parliament’s failure to act on these matters, and Senator Abetz’s claim that this is because they are powerless, that Your Excellency shall direct the power and wisdom of the Crown to restore integrity to the Australian Public Service and its oversight agencies.
2. I humbly pray that Your Excellency shall direct the power and wisdom of the Crown to dismiss those public officials who have breached the APS Code of Conduct, as was documented in the attached letter to the Merit Protection Commissioner and Australian Public Service Commissioner[98], Secretary of Defence[111] and Multijurisdictional State & Federal Crime Report.[99]
3. I humbly pray that Your Excellency shall direct the power and wisdom of the Crown to restore the integrity of the Australian Public Service Commission by dismissal of the Australian Public Service Commissioner, for the reasons stated in my Open Letter to him to which he did not respond. [100]
4. I humbly pray that Your Excellency shall direct the power and wisdom of the Crown to restore the integrity of the Australian Federal Police, including measures such as dismissal of the Federal Police Commissioner to be replaced by a person who may restore integrity, accountability and public trust to the force.
5. I humbly pray that Your Excellency shall direct the power and wisdom of the Crown so that victims of public service crime and corruption may access the justice system, and by dismissal of those public officials who have abused the Model Litigant Policy to deny justice to Her Majesty’s subjects, some of whom are identified in the attached Multijurisdictional State & Federal Crime Report.
6. I humbly pray that Your Excellency shall direct the power and wisdom of the Crown to restore the integrity of the Australian government such that the Rule of Law shall be restored, such that all of her Majesty’s subjects including public servants shall be treated equally under the law.
7. I humbly pray that Your Excellency shall direct the power and wisdom of the Crown to compel the government to reconsider the Defence Trade Controls Act for the threat it this dangerous law presents to the interests of the people and the nation.
I understand the prerogative powers of the Crown are vested in Her Majesty the Queen[101] and the Governor-General as her representative. I understand the Governor-General oversees the work of the government, and as such has the power to dismiss public officials. [21]
Under the conventions of the Westminster system, I understand that the Prime Minister the Hon Tony Abbott MP shall offer the Governor-General his advice on these matters.
However the Governor-General fills a critical role within our system of government and is under no compulsion to accept such advice unquestioningly. [102] The Governor-General’s dominant interests are the stability of our government and the overall interests of the people and the nation.[103] It is not in the interests of Australians to have a corrupt public service and federal police force which Australian Parliament cannot or will not hold to account.[104]
Thus in taking advice from ministers the Governor-General is entitled question a conclusion, seek to know the reasons for it and draw attention to relevant considerations to ensure they are taken into account.[105] Under our constitutional monarchy the Governor-General provides a crucial check on the absolute power of the elected government and the Australian Public Service. [106]
I humbly pray that Her Majesty the Queen takes an interest in these events as I have the honour to be, Madam, Your Majesty’s humble and obedient servant.
Mr. Brendan Jones.
Attached
a) 2013-08-29 An Open Letter to the Public Service Commissioner concerning Systemic Corruption in the Australian Public Service (APS)[107]
b) 2013-12-03 Multijurisdictional State & Federal Crime Report: DSTO (CONFIDENTIAL - Qualified Privilege)[108]
c) 2011-11-01 Letter to Merit Protection Commissioner and Australian Public Service Commissioner documenting APS Code of Conduct breaches by 8 public servants.[109]
d) 2012-12-20 Letter from Karin Fisher for PSC Stephen Sedgwick claiming no authority.[110]
e) 2011-07-04 Letter to Dr. Ian Watt, Secretary of Defence (no response).[111]
f) 2014-01-21 From Senator Eric Abetz, the Minister Assisting the Prime Minister on the Public Service via Chief of Staff Mr. Ben Davies claiming the minister is powerless to intervene.
[1] I refer to myself and the many other victims of crime and corruption by Australian government agencies (the DSTO, CSIRO, ATO and APS) whose victims advocates I am in contact with, the many victims of Australian Defence Force Abuse for whom justice is needlessly being delayed, and the Australian people whom Commonwealth corruption is costing A$19B per year which could better be spent on their health, welfare, education and security. http://victimsofdsto.com/psc http://victimsofcsiro.com http://www.apsbullying.com/ http://ozloop.org http://www.crikey.com.au/2013/07/19/what-are-your-rights-with-the-taxman-call-to-clean-up-ato-disgrace/ http://www.crikey.com.au/2013/02/05/the-tax-office-hired-assassins-and-how-to-gag-dissent/ http://www.crikey.com.au/2013/01/08/the-tax-office-and-the-expensive-muzzle-on-complainants/ http://www.crikey.com.au/2012/11/26/ato-whistleblower-bully-case-points-to-tick-and-flick-advice/
[2] “Revealed: the government agency stealing ideas from businesses,” Chris Seage, Crikey.com.au, December 2, 2013. “A number of businesses are complaining a Defence Department organisation has stolen their intellectual property, Crikey can reveal. Chris Seage reports new legislation [The Defence Trade Controls Act] makes the problem worse.”http://www.crikey.com.au/2013/12/02/revealed-the-government-agency-stealing-ideas-from-businesses/
[3] 2011-04-07(11) Letter to Defence Director of Fraud Control Policy and Ethics: “You said the appropriate forum for me to pursue that is through the courts (at my own expense). You said if the courts ultimately determined there was misconduct you would reconsider, but you would not otherwise be taking any action. You are only telling me this nearly two years after I submitted my original complaint to you, and only weeks before the statue of limitations expires. This is unacceptable. Further I told you in our previous meeting and in nearly every letter I wrote regarding this matter that I did not have the financial resources to take the Commonwealth to court. How many victims do?”
[4] 2011-08-04 From Michelle Curran for Senator Hogg: “Firstly, with regard to your questions about a review, I have been advised that your only course of action is litigation, as this case is outside the scope of a review.”
[5] 2012-07-17 To Clayton Utz: “I have written to your client numerous times pointing out their legal obligations under the Model Litigant Policy which include that we negotiate so as to avoid costly litigation, but your client has ignored this and continues to breach the policy.” “By failing to comply with Model Litigant Policy and by forcing costly court hearings your client has put me in an untenable position”
[6] Acronyms: ADF: Australian Defence Force, APSC: Australian Public Service Commission, AFP: Australian Federal Police, ACLEI: Australian Commission for Law Enforcement Integrity.
[7] (i) The Inspector General of Defence took 19.5 months (“nearly two years”). (ii) So far the AFP has taken 2 years and 5 months, and based on the AFP liaison officer’s threat I doubt they will ever act on it. (iii) The Commonwealth Ombudsman has simply stopped corresponding. etc…
[8] 2014-01-27 E-mail to Senator Eric Abetz, Minister Assisting the Prime Minister on the Public Service: “The pattern is the oversight agency will sit on a complaint typically for 6-8 months (sometimes longer)[ix], and then respond either by claiming they have no statutory authority, or with a form letter I have seen so many times I can recite it: "We have conducted an internal review and found that no procedures were breached. I appreciate this is not the response you hoped to receive, but any further correspondence from you will be read and filed and unless it raises new and substantive issues will not be responded to. " Over the last four years I have seen time and time again: public servants will not hold other public servants accountable for their actions. Not even one of the public service oversight agencies are working; That was the entire point of the Open letter.[x] [xi] [xii] Thus Mr. Abetz sending me back to those oversight agencies is waste of everyone’s time: It will add yet another 6-8 month delay, and it will not fix the problem.”
[9] Whistleblowers Australia VP Brian Martin: “In the largest study of whistleblowers in Australia, William De Maria found that they reported being helped by an official body in less than one out of ten approaches, and in many cases they were worse off. Yet most whistleblowers believe that justice is to be found somewhere in the system, so they make a submission to an agency, wait months or years and then, when the result is negative, go on to another agency. This is an ideal way to reduce outrage from the injustice being done, because the official bodies give the appearance, though seldom the substance, of dispensing justice.” http://www.bmartin.cc/pubs/05overland.html
[10] “What Happens to Whistleblowers, and Why”, Jean Lennane. “Corruption of protection agencies. A very important issue is the corrupting process that is likely – possibly inevitably – to affect investigators and whistleblower protection agencies. It is almost universal experience that bodies which have been set up to redress injustice of this kind gradually become part of the authority system themselves, hence useless to the whistleblower. ... Apart from the seductiveness and contagiousness of corruption, there is also the practical issue of career and personal advancement within the larger bureaucracy of which the protection agency is necessarily a part. A protection officer who makes life too difficult for other bureaucrats is unlikely to achieve advancement in any other department, and prospects for promotion if confined to their own agency will be very limited.” http://www.socialmedicine.info/index.php/ socialmedicine/article/download/583/1242
“The security breach Defence tried to hide”, Des Houghton, The Courier-Mail, March 03, 2012. “It seems no one knows for sure how deeply our national security has been compromised. We do know that ASIO was duped by faked security checks conducted at the base. And we do know the Defence Department lied about it and tried to cover it up. A federal inquiry said so. It found thousands of high-level security assessments in the Defence Department were compromised by incorrect data subsequently used by ASIO to issue official clearances of individuals working in sensitive areas. The background character checks involved individuals employed as private security guards working on Australian military bases, senior public servants with access to sensitive information, staff in our overseas embassies and airline air marshals. Who else was vetted we don't know. Some of the subjects had top-secret classifications. The breaches would probably have gone unnoticed had it not been for the courage of five Brisbane civilians who blew the whistle. Within weeks of starting at the base in March 2010 they sensed something was terribly wrong. "We feared straight away that national security was being breached," says whistleblower Monica Bennett-Ryan. "Five of us went to the (Federal) Ombudsman but didn't get anywhere. "They put it in the too-hard basket. We were given the impression that no one wins against Defence; they are too big and too powerful." … Janice Weightman, another whistleblower, says the case had shaken her belief in the system. "Now I have very little faith in the Defence Department and the Labor Government, and especially Defence Minister Stephen Smith." http://www.couriermail.com.au/ipad/the-security-breach-defence-tried-to-hide/story-fn6ck620-1226287784790
“The security breach Defence tried to hide”, Des Houghton, The Courier-Mail, March 03, 2012. “It seems no one knows for sure how deeply our national security has been compromised. We do know that ASIO was duped by faked security checks conducted at the base. And we do know the Defence Department lied about it and tried to cover it up. A federal inquiry said so. It found thousands of high-level security assessments in the Defence Department were compromised by incorrect data subsequently used by ASIO to issue official clearances of individuals working in sensitive areas. The background character checks involved individuals employed as private security guards working on Australian military bases, senior public servants with access to sensitive information, staff in our overseas embassies and airline air marshals. Who else was vetted we don't know. Some of the subjects had top-secret classifications. The breaches would probably have gone unnoticed had it not been for the courage of five Brisbane civilians who blew the whistle. Within weeks of starting at the base in March 2010 they sensed something was terribly wrong. "We feared straight away that national security was being breached," says whistleblower Monica Bennett-Ryan. "Five of us went to the (Federal) Ombudsman but didn't get anywhere. "They put it in the too-hard basket. We were given the impression that no one wins against Defence; they are too big and too powerful." … Janice Weightman, another whistleblower, says the case had shaken her belief in the system. "Now I have very little faith in the Defence Department and the Labor Government, and especially Defence Minister Stephen Smith." http://www.couriermail.com.au/ipad/the-security-breach-defence-tried-to-hide/story-fn6ck620-1226287784790
[11] “What are your rights with the taxman? Call to clean up ATO ‘disgrace’”, Chris Seage, Crikey, July 19, 2013.
“A disgruntled taxpayer who lost his wealth, health and marriage after a five-year tax audit has lodged a statement of claim in the Federal Court seeking $5.1 million in damages, alleging the commissioner of taxation acted negligently and in breach of his statutory duties.” http://www.crikey.com.au/2013/07/19/what-are-your-rights-with-the-taxman-call-to-clean-up-ato-disgrace http://www.crikey.com.au/2013/01/08/the-tax-office-and-the-expensive-muzzle-on-complainant
“A disgruntled taxpayer who lost his wealth, health and marriage after a five-year tax audit has lodged a statement of claim in the Federal Court seeking $5.1 million in damages, alleging the commissioner of taxation acted negligently and in breach of his statutory duties.” http://www.crikey.com.au/2013/07/19/what-are-your-rights-with-the-taxman-call-to-clean-up-ato-disgrace http://www.crikey.com.au/2013/01/08/the-tax-office-and-the-expensive-muzzle-on-complainant
[12] Whistleblowing expert William De Maria: “It is one thing to say to an agency such as the Australian Federal Police (AFP) 'Look at the wrongdoing over here. Please do something about it.' (primary disclosure). It is entirely different to say, 'You've had my disclosure for five years now, which have you not acted? I am going to report this' (secondary disclosure). Secondary disclosures about investigative probity and competence can be more dangerous to whistleblowers than the original disclosure of wrongdoing because they bring the game right up to those who took the primary disclosures in the first place. In response, agencies often become negative, defensive, and in some cases hostile and even violent.”
[13] “Mick's war,” Hall Greenland, The Bulletin 121, 2003-06-17, pp. 32-37.
“Mick Skrijel was a crayfisherman in South Australia in 1978 when he reported to police and politicians what he thought were drug drops off the coast. Afterwards, his catches were stolen, his boat was destroyed by fire, his house was partially burnt and he was bashed. Moving to Victoria in the 1980s, his allegations were passed to the newly created National Crime Authority. Skrijel leafleted and picketed NCA headquarters over its inaction - and then the NCA investigated Skrijel himself, who went to prison for five months after a raid found explosives and marijuana on his property. His conviction was later quashed by the Victorian Supreme Court: the judges found the explosives and marijuana could have been planted. Investigating the matter at the request of the government, QC David Quick recommended an inquiry, with royal commission powers, into the possibility that Skrijel was framed, but the government declined.”
“Mick Skrijel was a crayfisherman in South Australia in 1978 when he reported to police and politicians what he thought were drug drops off the coast. Afterwards, his catches were stolen, his boat was destroyed by fire, his house was partially burnt and he was bashed. Moving to Victoria in the 1980s, his allegations were passed to the newly created National Crime Authority. Skrijel leafleted and picketed NCA headquarters over its inaction - and then the NCA investigated Skrijel himself, who went to prison for five months after a raid found explosives and marijuana on his property. His conviction was later quashed by the Victorian Supreme Court: the judges found the explosives and marijuana could have been planted. Investigating the matter at the request of the government, QC David Quick recommended an inquiry, with royal commission powers, into the possibility that Skrijel was framed, but the government declined.”
[14] After the first review of Defence abuses completed (the DLA Piper review), the Labor government commissioned a second review (the DART). Victims and the lawyer who conducted the original inquiries believe the government is stalling, that the second review DART is unnecessary and only serving to delay justice while criminals are being protected:
“Lawyer attacks delay over abuse,” David Wroe, SMH, 2013-03-15. “The lawyer appointed by the Gillard government to lead an inquiry into abuse in the military has questioned Defence Minister Stephen Smith's commitment to bringing justice to victims, in a stinging attack on the government.” http://www.smh.com.au/federal-politics/political-news/lawyer-attacks-delay-over-abuse-20130314-2g3k9.html
“Lawyer attacks delay over abuse,” David Wroe, SMH, 2013-03-15. “The lawyer appointed by the Gillard government to lead an inquiry into abuse in the military has questioned Defence Minister Stephen Smith's commitment to bringing justice to victims, in a stinging attack on the government.” http://www.smh.com.au/federal-politics/political-news/lawyer-attacks-delay-over-abuse-20130314-2g3k9.html
“Defence Force fails abuse victims, says officer,” Hayden Cooper, 7:30 Report, 2013-03-07. “The ADF is neglecting and mishandling abuse claims while the attitudes of many have been unchanged by reviews, according to a senior officer who was himself a victim of a hate campaign. Rarely does a serving Army officer publicly unleash on the top brass of the Australian military. But tonight, a senior Defence psychologist has broken ranks to blow the whistle on Defence Force culture. Lieutenant Colonel Paul Morgan is accusing his superiors of neglecting abuse victims, covering up abuse cases and ignoring his own complaints.” http://www.abc.net.au/7.30/content/2013/s3710615.htm
“Victims left out of ADF abuse probe,” Dan Box, The Australian, 2013-04-03. “The taskforce established by the federal government to respond to more than a thousand cases of alleged physical and sexual abuse within the military will not formally interview either the victims or the perpetrators of the alleged crimes. The Defence Abuse Response Taskforce will instead rely heavily on documentary material provided by the Australian Defence Force and a previous inquiry into this abuse by the law firm DLA Piper.” http://www.theaustralian.com.au/national-affairs/policy/victims-left-out-of-adf-abuse-probe/story-e6frg8yo-1226611255806#
“Dr Gary Rumble wants sexual abuse in Defence's senior ranks exposed,” The Australian, 2013-11-07. “The lawyer who led a high-level review into sexual abuse in the Defence Force has called for a Royal Commission to expose rapists and abusers in the military's senior ranks. He said it was unlikely that the DART would result in any effective action to call to account serving officers who were rapists or silent witnesses to rape or assault.” http://www.news.com.au/national/dr-gary-rumble-wants-sexual-abuse-in-defences-senior-ranks-exposed/story-fncynjr2-1226754492904
[15] Because this has received so little coverage in the press, I have included a letter from a victim here:
Letter from a DART Victim to Chris Mitchell, Editor of The Australian (unpublished, names removed):
“1) Overall, [DART official] has made decisions regarding the ADF’s victims that have been hostile to their welfare. I am not referring to the amounts of reparation payments as these decisions are not his to make anyway. He has consistently denied various assistances to victims that were within his power to supply almost right from the beginning and only changing his reactive policies when pressured, his actions were uncovered and that he was acting without compassion. ... Then there are the actions of DART only moving on critical incident issues under duress and then slowly, quite ADF like. I have been given pause to think that perhaps the adoption of this rank is appropriate after all.
Letter from a DART Victim to Chris Mitchell, Editor of The Australian (unpublished, names removed):
“1) Overall, [DART official] has made decisions regarding the ADF’s victims that have been hostile to their welfare. I am not referring to the amounts of reparation payments as these decisions are not his to make anyway. He has consistently denied various assistances to victims that were within his power to supply almost right from the beginning and only changing his reactive policies when pressured, his actions were uncovered and that he was acting without compassion. ... Then there are the actions of DART only moving on critical incident issues under duress and then slowly, quite ADF like. I have been given pause to think that perhaps the adoption of this rank is appropriate after all.
2) He labelled DART applicants “complainants” without considering the real effect of institutional semantics on much damaged people. He oversaw the denial of access to counselling for suicidal and deeply disturbed victims. Even when counselling was finally offered after months of delays, the firm he engaged to supply these services could not service non-metropolitan areas. He allows processing procedures that produce unreasonably long times - weeks upon weeks upon weeks - to pass in his internal bureaucracy that process reparation payments after a determination has been made.
3) The DART’s own welfare officers he has disempowered to such an extent that when they contact the “complainants” they can say almost nothing, hedging their words and obfuscating and thus multiplying pain and suffering. This is felt both by the “complainants” and his own Officers. These Officers, whose distress is palpable though hidden by their professionalism, is in effect new life to the original ADF abuses that the victims suffered. A gift that keeps on giving, one might say. [DART official] has these things occurring on his watch and he apparently does not or will not see them.
4) The deadlines for certain victim’s application paperwork were altered to short and apparently arbitrarily decided dates. The paperwork itself is incredibly distressing. A wise or fragile victim would do well to engage on of the pre-approved law firms and when a reparation determination is made in their favour, just pay the money to that law firm. I can’t think of anywhere when a claim has been accepted, that the successful claimant still has to pay out of their own pocket. I have not heard [DART official] speak or comment publicly regarding these kinds of issues either. There are things [DART official] could have, should have advocated for to excel in his role to make him a worthy recipient of any awards. Unfortunately, he has likely made as many errors of omission as commission his job to qualify him as an outstanding candidate for any of them.
5) The offer of written apologies to victims has not been withdrawn by DART, just made incredibly difficult to obtain. They have issued just one. I am told by DART that these apologies will be probably be crafted by Defense Legal in the own time. Perhaps [DART official] could act to the fullest of DART’s charter to bring a recalcitrant Defense to heel over their stained past? I hear no and see no actions like this anywhere except a small drop in Defence’s budget by way of reparation payments. DART’s favoured means of a Defense apology is face to face mediated meeting. These have not gone well. [DART official] has overseen disastrous face to face apologies that have in the end left victims out of pocket and more distressed afterwards! Victims were paying all the costs for their support persons and the process has been rushed.
When these issues above that I have knowledge of are contrasted with his measured and stage managed performances in the media and Parliament that I have personally seen, I can only conclude that [DART official] ... is inappropriate and underserved”
[16] “Kate” whose abuse prompted the public outcry which lead to inquiries has now quit the ADF:
“Victim of ADFA Skype sex scandal to take legal action against Defence Force”, Alex McDonald and Michael Brissenden, ABC, Nov 5, 2013. “The woman at the heart of the Australian Defence Force Academy Skype sex scandal is set to take legal action against the military, two-and-a-half years after she was secretly filmed having sex with a fellow cadet. … Kate … says she was determined to pursue a military career even after she went public about her ordeal. However, she says she was harassed repeatedly at Australian Defence Force (ADF) bases around the country. … She believes that over the past two-and-a-half years, the ADF has deliberately leaked information to the media to discredit her. "It kind of became the child in the schoolyard being bullied and nobody's willing to step forward because they're scared of the retribution that they would face from it."” http://www.abc.net.au/news/2013-11-04/adfa-sykpe-sex-scandal-daniel-mcdonald-adf/5068630
[17] “Independent Commission Against Corruption (Hong Kong)”, “The Independent Commission Against Corruption (ICAC) of Hong Kong was established by Governor Murray MacLehose on 15 February 1974, when Hong Kong was under British rule. Its main aim was to clean up endemic corruption in the many departments of the Hong Kong Government through law enforcement, prevention and community education.” https://en.wikipedia.org/wiki/ Independent_Commission_Against_Corruption_%28Hong_Kong%29
[18] “New body needed to fill cracks of corruption,” George Williams, Professor of Law at the University of NSW, SMH, May 22, 2012. “The lack of a national anti-corruption body means that dishonesty and breaches of public trust by parliamentarians and Commonwealth agencies may never be detected, let alone addressed.” http://www.smh.com.au/federal-politics/society-and-culture/new-body-needed-to-fill-cracks-of-corruption-20120521-1z17h.html
[19] “You better be careful blowing the whistle — new laws have holes”, Brendan Jones, Crikey, July 30, 2013. “The biggest failing of the new laws is that agencies will still investigate their own complaints. No minister wants to front a press conference on corruption in their department. An internal complaint unit can make the whole thing go away by tipping off the perpetrator and terrorising the whistleblower. The government can sit on a complaint indefinitely during which time the whistleblower is vulnerable to retribution and cannot talk to the media.” http://www.crikey.com.au/2013/07/30/you-better-be-careful-blowing-the-whistle-new-laws-have-holes/ Note: Rebuttal to Attorney-General’s response appears in the Comments
[20] “Official Committee Hansard - Joint Committee On The Australian Commission For Law Enforcement Integrity - Reference: Operation of the Law Enforcement Integrity Commissioner Act 2006 - Monday, 21 March 2011 – Canberra”
[21] Termination of Public Officials:
PUBLIC SERVICE ACT 1999 - SECT 47“Removal from office. (1) The Governor-General may remove the Commissioner from office if each House of the Parliament, in the same session of the Parliament, presents an address to the Governor-General praying for the removal of the Commissioner on the ground of misbehaviour or physical or mental incapacity.” http://www.austlii.edu.au/au/legis/cth/consol_act/psa1999152/s47.html
PUBLIC SERVICE ACT 1999 - SECT 59
“Termination of appointment (1) The Governor-General may, on the recommendation of the Prime Minister and by notice in writing, terminate the appointment of a Secretary. Note: In Barratt v Howard [1999] FCA 1132, the Federal Court of Australia described the basis on which requirements of procedural fairness applied to the termination of an appointment of Secretary under section 37 of the Public Service Act 1922 .” http://www.austlii.edu.au/au/legis/cth/consol_act/psa1999152/s59.html
“Termination of appointment (1) The Governor-General may, on the recommendation of the Prime Minister and by notice in writing, terminate the appointment of a Secretary. Note: In Barratt v Howard [1999] FCA 1132, the Federal Court of Australia described the basis on which requirements of procedural fairness applied to the termination of an appointment of Secretary under section 37 of the Public Service Act 1922 .” http://www.austlii.edu.au/au/legis/cth/consol_act/psa1999152/s59.html
PUBLIC SERVICE ACT 1999 - SECT 48C
“Termination of appointment (1) The Governor-General may, by notice in writing, on the recommendation of the Prime Minister, terminate the appointment of a Special Commissioner at any time.” http://www.austlii.edu.au/au/legis/cth/consol_act/psa1999152/s48c.html
“Termination of appointment (1) The Governor-General may, by notice in writing, on the recommendation of the Prime Minister, terminate the appointment of a Special Commissioner at any time.” http://www.austlii.edu.au/au/legis/cth/consol_act/psa1999152/s48c.html
PUBLIC SERVICE ACT 1999 - SECT 29
“Termination of employment (1) An Agency Head may at any time, by notice in writing, terminate the employment of an APS employee in the Agency. … (2) For an ongoing APS employee, the notice must specify the ground or grounds that are relied on for the termination. (3) For an ongoing APS employee, the following are the only grounds for termination: … (a) the employee is excess to the requirements of the Agency; (b) the employee lacks, or has lost, an essential qualification for performing his or her duties; (c) non-performance, or unsatisfactory performance, of duties; (d) inability to perform duties because of physical or mental incapacity; (e) failure to satisfactorily complete an entry-level training course; (f) failure to meet a condition imposed under subsection 22(6); (g) breach of the Code of Conduct; (h) any other ground prescribed by the regulations. …”
http://www.austlii.edu.au/au/legis/cth/consol_act/psa1999152/s29.html
“Termination of employment (1) An Agency Head may at any time, by notice in writing, terminate the employment of an APS employee in the Agency. … (2) For an ongoing APS employee, the notice must specify the ground or grounds that are relied on for the termination. (3) For an ongoing APS employee, the following are the only grounds for termination: … (a) the employee is excess to the requirements of the Agency; (b) the employee lacks, or has lost, an essential qualification for performing his or her duties; (c) non-performance, or unsatisfactory performance, of duties; (d) inability to perform duties because of physical or mental incapacity; (e) failure to satisfactorily complete an entry-level training course; (f) failure to meet a condition imposed under subsection 22(6); (g) breach of the Code of Conduct; (h) any other ground prescribed by the regulations. …”
http://www.austlii.edu.au/au/legis/cth/consol_act/psa1999152/s29.html
Note: An Agency Head who fails to properly act against crime or misconduct by an APS Employee within their agency has themselves breached the APS Code of Conduct:
PUBLIC SERVICE ACT 1999 - SECT 13
“The APS Code of Conduct (1) An APS employee must behave honestly and with integrity in connection with APS employment. (2) An APS employee must act with care and diligence in connection with APS employment. (3) An APS employee, when acting in connection with APS employment, must treat everyone with respect and courtesy, and without harassment. (4) An APS employee, when acting in connection with APS employment, must comply with all applicable Australian laws. For this purpose, Australian law means: (a) any Act (including this Act), or any instrument made under an Act; or (b) any law of a State or Territory, including any instrument made under such a law. (5) An APS employee must comply with any lawful and reasonable direction given by someone in the employee's Agency who has authority to give the direction. (6) An APS employee must maintain appropriate confidentiality about dealings that the employee has with any Minister or Minister's member of staff. (7) An APS employee must disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment. (8) An APS employee must use Commonwealth resources in a proper manner. (9) An APS employee must not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee's APS employment. (10) An APS employee must not make improper use of: (a) inside information; or (b) the employee's duties, status, power or authority; in order to gain, or seek to gain, a benefit or advantage for the employee or for any other person. (11) An APS employee must at all times behave in a way that upholds: (a) the APS Values and APS Employment Principles; and (b) the integrity and good reputation of the employee's Agency and the APS. (12) An APS employee on duty overseas must at all times behave in a way that upholds the good reputation of Australia. (13) An APS employee must comply with any other conduct requirement that is prescribed by the regulations.” http://www.austlii.edu.au/au/legis/cth/consol_act/psa1999152/s13.html
“The APS Code of Conduct (1) An APS employee must behave honestly and with integrity in connection with APS employment. (2) An APS employee must act with care and diligence in connection with APS employment. (3) An APS employee, when acting in connection with APS employment, must treat everyone with respect and courtesy, and without harassment. (4) An APS employee, when acting in connection with APS employment, must comply with all applicable Australian laws. For this purpose, Australian law means: (a) any Act (including this Act), or any instrument made under an Act; or (b) any law of a State or Territory, including any instrument made under such a law. (5) An APS employee must comply with any lawful and reasonable direction given by someone in the employee's Agency who has authority to give the direction. (6) An APS employee must maintain appropriate confidentiality about dealings that the employee has with any Minister or Minister's member of staff. (7) An APS employee must disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment. (8) An APS employee must use Commonwealth resources in a proper manner. (9) An APS employee must not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee's APS employment. (10) An APS employee must not make improper use of: (a) inside information; or (b) the employee's duties, status, power or authority; in order to gain, or seek to gain, a benefit or advantage for the employee or for any other person. (11) An APS employee must at all times behave in a way that upholds: (a) the APS Values and APS Employment Principles; and (b) the integrity and good reputation of the employee's Agency and the APS. (12) An APS employee on duty overseas must at all times behave in a way that upholds the good reputation of Australia. (13) An APS employee must comply with any other conduct requirement that is prescribed by the regulations.” http://www.austlii.edu.au/au/legis/cth/consol_act/psa1999152/s13.html
PUBLIC SERVICE ACT 1999 - SECT 35
“Constitution and role of SES (1) The Senior Executive Service consists of the SES employees. (2) The function of the SES is to provide APS-wide strategic leadership of the highest quality that contributes to an effective and cohesive APS. (3) For the purpose of carrying out the function of the SES, each SES employee: (a) provides one or more of the following at a high level: (i) professional or specialist expertise; (ii) policy advice; (iii) program or service delivery; (iv) regulatory administration; and (b) promotes cooperation within and between Agencies, including to deliver outcomes across Agency and portfolio boundaries; and (c) by personal example and other appropriate means, promotes the APS Values, the APS Employment Principles and compliance with the Code of Conduct.” http://www.austlii.edu.au/au/legis/cth/consol_act/psa1999152/s35.html
“Constitution and role of SES (1) The Senior Executive Service consists of the SES employees. (2) The function of the SES is to provide APS-wide strategic leadership of the highest quality that contributes to an effective and cohesive APS. (3) For the purpose of carrying out the function of the SES, each SES employee: (a) provides one or more of the following at a high level: (i) professional or specialist expertise; (ii) policy advice; (iii) program or service delivery; (iv) regulatory administration; and (b) promotes cooperation within and between Agencies, including to deliver outcomes across Agency and portfolio boundaries; and (c) by personal example and other appropriate means, promotes the APS Values, the APS Employment Principles and compliance with the Code of Conduct.” http://www.austlii.edu.au/au/legis/cth/consol_act/psa1999152/s35.html
[22] 2011-11-01 Letter to Merit Protection Commissioner and Public Service Commissioner regarding breaches of the APS Code of Conduct. (Both the Merit Protection Commissioner and Public Service Commissioner claimed they had no statutory authority to act on this letter, and so to the best of my knowledge did nothing.)
[23] To my knowledge neither the AFP, NSW or VIC police are acting on this crime report. The VIC police previously acknowledged it, but internally directed it to the wrong department. Rather than redirect it themselves, they wrote to me and said I would have to resubmit the complaint, acknowledging that this would further delay their acting upon it. The NSW police, the AFP and ACELI (Australian Commission for Law Enforcement Integrity) have not responded at all.
[24] Public service keeps fraud cases private”, 2011-09-24, SMH, Linton Besser, “Confidential files obtained using freedom of information show thousands of allegations of graft and abuse of office are being levelled against government staff each year - but only a handful are properly investigated.”http://www.smh.com.au/national/public-service-keeps-fraud-cases-private-20110923-1kpdr.html
[25] “Federal agencies lack firepower to deal with fraud”, 2011-10-03, SMH, Linton Besser. “An unknown number of corruption cases lie undiscovered inside the vast Commonwealth bureaucracy”,http://www.smh.com.au/national/federal-agencies-lack-firepower-to-deal-with-fraud-20111003-1l5dt.html
[26] The Hon Gary Gray, AO MP Special Minister of State, and Special Minister of State for Public Service and Integrity. This week The Canberra Times referred to a number of allegations about fraud, corruption and misconduct in the public service, which were previously reported in the Sydney Morning Herald. … The Public Service Commissioner can also initiate an investigation into any matter relating to the APS, including at the request of the Public Service Minister. Together, this combination of mechanisms ensures that all APS employees are held to account. And despite the simplistic and misleading claims from the Sydney Morning Herald, the APS continues to identify and effectively deal with claims of misconduct and fraud” http://www.smos.gov.au/publications/2011/pu_071011.html
[27] Ibid. “The Public Service Commissioner can also initiate an investigation into any matter relating to the APS, including at the request of the Public Service Minister.” http://www.smos.gov.au/publications/2011/pu_071011.html
[28] 2012-12-20 From Karin Fisher for PSC Stephen Sedgwick: “I appreciate this is probably not the response to your letter that you were hoping to receive, but I hope that it has clarified the concerns that you raised and also our previous advice to you”
[29] “Failure to exercise your statutory authority” 2013-08-29 An Open Letter to the Public Service Commissioner concerning Systemic Corruption in the Australian Public Service (APS) http://victimsofdsto.com/psc/#fail_stat
[30] 2013-08-29 An Open Letter to the Public Service Commissioner concerning Systemic Corruption in the Australian Public Service (APS) http://victimsofdsto.com/psc
[31] 2013-08-29 An Open Letter to the Public Service Commissioner concerning Systemic Corruption in the Australian Public Service (APS) http://victimsofdsto.com/psc
[32] “Good Cop, Bad Cop,” Sally Neighbour, 4 Corners, ABC, 2008-10-27.
“The once-lionised AFP is now ridiculed for apparent bungling, excessive secrecy and cosying up to political masters.”http://www.abc.net.au/4corners/content/2008/s2400214.htm
“The once-lionised AFP is now ridiculed for apparent bungling, excessive secrecy and cosying up to political masters.”http://www.abc.net.au/4corners/content/2008/s2400214.htm
[33] The AFP's involvement in drug running remains secret:
“Fishing for the Truth”, Max Wallace, Alternative Law Journal, 1997-02 v22n1, “Press reports in February (for example, Sun-Herald, 23 February 1997) noted a secret report (the Harrison report) into the Australian Federal Police (AFP) will be given to the Attorney-General shortly which will apparently disclose corruption on the part of AFP officers involved in drug law enforcement.” http://heinonline.org/HOL/LandingPage?handle=hein.journals/alterlj22&div=14&id=&page=
The Attorney-General never called the Royal Commission recommended by David Quick QC. When Whistleblower Mick Skrijel tried to raise this in the Attorney-General's electorate, the AFP intervened to shut down the story:
“Policing a citizen's right to expression”, Richard Ackland, Australian Financial Review - 1996-02-19 “Should Duncan Kerr’s concern about a pamphleteer in his electorate allow him to involve the Australian Federal Police, asks Richard Ackland.” “Last Sunday and Monday he had Mr Mick Skrijel stamping over his borough spreading leaflets that said some beastly things about poor Dunky. // Skrijel will be familiar to readers of this column as the former South Australian fisherman who made allegations of drug trafficking and official protection. The NCA subsequently brought a drug cultivation charge against him. An inquiry into the NCA’s conduct in this case found there was substantial evidence that the NCA fabricated the case against Skrijel in order to secure his conviction. // Kerr rejected the recommendation that a royal commission be held and has sent the matter to the Victorian Deputy Ombudsman for further investigation. Skrijel claims this is a totally inadequate response. // The material that Skrijel was distributing in Denison contained all those details, plus some flourishes that Kerr was trying to silence him. // The Minister for Justice was on notice that Skrijel was going to publish this pamphlet because he had sent him a copy on January 30 and asked him to read it carefully and tell him where he was wrong. // The minister did not take up Mr Skrijel’s generous offer. Instead on February 2 he wrote to Skrijel’s lawyer in Melbourne, John Howie, of Howie and Maher, and said that the pamphlet was “wildly defamatory” and urged that the legal implications of distributing such material be made clear to Mr Howie’s client. // He also sent a letter to members of the media in Hobart, dated February 5, warning that he “would be obliged to take legal action if any of the false and defamatory material were to be repeated in the media”. // That letter went to the Hobart branch manager of ABC radio, among others, on the same day that the ABC metropolitan radio host, Annie Warburton, was planning to interview Skrijel on her afternoon radio show. Before going to air she talked to a friend, Mr George Haddad, who is working with Kerr’s campaign team in Denison. Haddad cautioned her about interviewing Skrijel because he was likely to say something defamatory about Kerr on air. Warburton then pulled the plug on the interview. // Kerr says he was concerned about his own safety and his office requested the AFP conduct an “assessment” of Skrijel. This is quaint since in the time Kerr has been a minister there has been no apprehension about Skrijel. It is only when he turns up in the electorate wanting a debate that the flatfoots are called in. // On Tuesday, Warburton was visited by the Australian Federal Police, Kerr being minister responsible for the AFP. // She was asked about her impressions of Mr Skrijel and his reaction to being told the interview had been cancelled. The police officer also wanted to know about Skrijel’s whereabouts in Hobart, which she did not have. She was asked by the AFP officer to get in touch with the whistleblower’s organisation, ask them to contact Skrijel and invite him back to the studio on the pretence that another interview would be scheduled. It was suggested that she string Skrijel along and find out his address in Hobart, so that the copper could go and interview him about his pamphlet // Naturally, like all good journalists, and also having been a lawyer herself, Annie Warburton declined to participate in this proposal. // In fact, the AFP did interview Skrijel, on Wednesday and yesterday in Melbourne. He was asked about the wicked pamphlet: how many had been distributed, were there any others, why was he “mentally harassing” the minister? // But why should a minister be so sensitive as to involve the federal police in the free expression of issues by a concerned citizen participating in the democratic process of an election campaign? This is an even more interesting question.”
The AFP's involvement in drug running remains secret. More recently, Customs whistleblower Allan Kessing said the AFP had a presence at Sydney Airport and would have known about the drug smuggling:
“Whistleblower Allan Kessing 'vindicated' by airport Customs raid”, The Daily Telegraph, 2012-12-21.“Allan Kessing, who in 2007 was convicted of leaking reports about security at Sydney Airport to the Australian newspaper, told reporters on Friday that it was widely known the airport had problems with security. "It is not possible, it is simply not credible to say that nobody knew there was this extent of corruption," he said. "Anybody who has the slightest experience of this area knew there were problems. "The fact that they haven't been acted on until now begs the question, why?" http://www.dailytelegraph.com.au/whistleblower-allan-kessing-vindicated-by-airport-customs-raid/story-e6freuy9-1226541726529
To this day this has never been answered.
[34] “AFP 'ignored corruption complaint'”, The Age, Richard Baker and Nick McKenzie, The Age, 2010-05-25. “[Reserve Bank Whistleblower Brian Hood] said the AFP did not appear to take his complaint seriously and made little or no effort to act on his information. ''I was surprised that a serious matter like this and its serious implications for people involved in this activity, that it could be just sort of dismissed relatively easily, ... ''It was always 'Yeah, we're working on something else' or 'I'm overseas, we'll get back to you'. And it sort of petered out after four or five months to no contact at all …''” http://www.theage.com.au/national/afp-ignored-corruption-complaint-20100524-w81a.html
“Former cop says inducement offered to shut AWB inquiry,” Ashley Hall, ABC, 2012-06-07.
“The head of the Federal Police inquiry into the AWB (Australian Wheat Board) oil-for-food scandal says he was offered a promotion to shut down the investigation.” http://www.abc.net.au/am/content/2012/s3519929.htm
“The head of the Federal Police inquiry into the AWB (Australian Wheat Board) oil-for-food scandal says he was offered a promotion to shut down the investigation.” http://www.abc.net.au/am/content/2012/s3519929.htm
“Public service keeps fraud cases private”, SMH, Linton Besser, 2011-09-24. “Then there are questions about the AFP's capacity to take up the cudgels. That it does so already is a myth says Professor A.J. Brown, one of the country's most recognised public law experts. Unless the matter touches on criminality at the top end of the spectrum, the AFP has other priorities. ''There is currently no expectation [among Commonwealth agencies] that the AFP would ever help deal with other types of alleged official misconduct, such as conflicts of interest, even in complex or serious cases.” “The Australian Federal Police, which concentrates on drug trafficking and counter-terrorism, is reluctant to deal with Commonwealth fraud matters. It is likely the police took the case because the evidence was too conspicuous to ignore. There may be hundreds of bureaucrats in the public service who have previously been the target of internal investigations. In one confidential memo obtained by the Herald, senior Department of Immigration personnel are told that several staff had resigned ''to avoid incurring a breach of the APS [Australian Public Service] code of conduct on their employment record and likelihood of serious sanction being imposed''. This is not a rare occurrence. In the past six years, no fewer than 919 fraud investigations into Commonwealth public servants were prematurely terminated because they resigned.” http://www.smh.com.au/national/public-service-keeps-fraud-cases-private-20110923-1kpdr.html
“'Lax' AFP to reopen graft probes,” Maris Beck & Ben Butler, The Age, 2013-01-13.
“Federal police will reopen corruption inquiries into the Australian companies OZ Minerals and Cochlear, after searing criticism it was lax in its investigations. The Organisation for Economic Co-operation and Development reported in October it was ''seriously concerned'' about ''extremely low'' enforcement of anti-foreign bribery laws in Australia.” http://www.smh.com.au/business/lax-afp-to-reopen-graft-probes-20130112-2cmg3.html
“'Lax' AFP to reopen graft probes,” Maris Beck & Ben Butler, The Age, 2013-01-13.
“Federal police will reopen corruption inquiries into the Australian companies OZ Minerals and Cochlear, after searing criticism it was lax in its investigations. The Organisation for Economic Co-operation and Development reported in October it was ''seriously concerned'' about ''extremely low'' enforcement of anti-foreign bribery laws in Australia.” http://www.smh.com.au/business/lax-afp-to-reopen-graft-probes-20130112-2cmg3.html
[35] “Whistleblower's Kafkaesque saga a must-see,” Chris Merritt, The Australian, 2009-11-20. “It is the story of a shameful law and the ease with which governments and bureaucrats can use the Australian Federal Police and the justice system to prevent the community from learning about their ineptitude.” http://www.theaustralian.com.au/business/legal-affairs/whistleblowers-kafkaesque-saga-a-must-see/story-e6frg97x-1225799939126
[36] “The case of Allan Kessing”, 2013-08-29 An Open Letter to the Public Service Commissioner concerning Systemic Corruption in the Australian Public Service (APS):
“In your speech you described Whistleblower Allan Kessing to your audience as a man who leaked material concerning security operations in the Australian Customs and Border Protection Service, and how he was “successfully prosecuted under Section 70 of the Crimes Act.”
Anyone who only had this description to go off might think Mr. Kessing some sort of miscreant.
You did not tell your audience that Mr. Kessing was charged for reporting corruption at Sydney Airport the government had failed to act on, or that he said “It is not possible, it is simply not credible to say that nobody knew there was this extent of corruption. Anybody who has the slightest experience of this area knew there were problems. The fact that they haven't been acted on until now begs the question, why?””
Nor did you tell your audience that following his reports a drug ring (which included corrupt customs officials) was busted, or that a threat to airport security which could have been used to mount a terrorist attack on Australians was closed. Although Mr. Kessing didn’t allege the AFP were involved in the ring, he said they had a presence at Sydney airport and should have known.
Mr. Kessing did the public a huge favour. Senator Xenophon asked “How many Australians have overdosed on narcotics as a result of corrupt customs officials allowing those drugs to be brought into the country. How many Australians have been injured or killed as a result of weapons being brought into the country as a result of corrupt Customs officials?”
But you didn’t tell your audience that instead of thanking Mr. Kessing for compensating for their own shortcomings, the AFP ran up a $200K+ bill spying on him, raided his house twice, and that they allegedly withheld evidence of his innocence at the trial that convicted him, where he was forced to spend his superannuation to pay his legal bills against the Commonwealth. Mr. Kessing said “The toll this ordeal has put on my family is immense.”
Senator Xenophon said “The scandal here is that this man, who deserves a medal for the work that he did 10 years ago, was actually persecuted through the courts, had his life effectively ruined by virtue of being charged under Section 70 of the Crimes Act.”
Section 70 of the Crimes Act has also been used by the National Gallery to threaten employees with two years jail if they went public with allegations of poor management by the gallery’s administrators.
In your speech you said “Leaking APS material publicly is, and has been historically, very rare.” The penalty of two years imprisonment – even for revealing corruption or maladministration – probably has something to do with that.
In your speech you say Confidentiality is necessary to preserve the “relationship of trust that must exist between ministers and the APS. Preservation of this relationship is essential in maintaining the APS’s tradition of impartiality and its reputation for being apolitical and professional.”
But neither of these cases were about preserving the “relationship of trust that must exist between ministers and the APS.” They were about using Section 70 to conceal corruption and maladministration.”
[37] “AFP 'withheld key whistleblower evidence' in Kessing case,” Chris Merritt, The Australian, 2011-08-19. “Federal law-enforcement agencies have been accused of improper conduct during the trial of convicted whistleblower Allan Kessing. Barrister Peter Lowe, who defended Mr Kessing, says federal authorities withheld a key document and instead provided the defence with a document that was "liable to mislead".” http://www.theaustralian.com.au/business/legal-affairs/afp-withheld-key-whistleblower-evidence-in-kessing-case/story-e6frg97x-1226117735249
“Govt won't probe new Kessing claims,” 2009-09-07, SMH.
“The Rudd government has no plans to hold an inquiry into new claims by whistleblower Allan Kessing that implicate Cabinet minister Anthony Albanese. Mr Kessing has now revealed that he approached Mr Albanese's office in early 2005 with a suppressed report that the former Customs officer had written two years earlier outlining security shortcomings at Sydney airport. Mr Albanese, now transport minister, was an opposition frontbencher at the time. He took no further action following the approach. Mr Kessing was later charged and then convicted after the information he tried to supply Mr Albanese appeared in The Australian newspaper a few months later. Mr Kessing denies supplying The Australian with the report. The details involving Mr Albanese never emerged during the court case. Independent senator Nick Xenophon is calling for an independent judicial inquiry into Mr Kessing's subsequent trial and conviction in light of claims that Mr Albanese was also aware of the information.”http://news.smh.com.au/breaking-news-national/govt-wont-probe-new-kessing-claims-20090907-fd8p.html
“The Rudd government has no plans to hold an inquiry into new claims by whistleblower Allan Kessing that implicate Cabinet minister Anthony Albanese. Mr Kessing has now revealed that he approached Mr Albanese's office in early 2005 with a suppressed report that the former Customs officer had written two years earlier outlining security shortcomings at Sydney airport. Mr Albanese, now transport minister, was an opposition frontbencher at the time. He took no further action following the approach. Mr Kessing was later charged and then convicted after the information he tried to supply Mr Albanese appeared in The Australian newspaper a few months later. Mr Kessing denies supplying The Australian with the report. The details involving Mr Albanese never emerged during the court case. Independent senator Nick Xenophon is calling for an independent judicial inquiry into Mr Kessing's subsequent trial and conviction in light of claims that Mr Albanese was also aware of the information.”http://news.smh.com.au/breaking-news-national/govt-wont-probe-new-kessing-claims-20090907-fd8p.html
[38] 2011-08-22 AFP Crime Report (was not responded to)
[39] 2013-12-03 Multijurisdictional State & Federal Crime Report: DSTO (CONFIDENTIAL - Qualified Privilege), To: Australian Commission for Law Enforcement Integrity, VIC Office of Public Prosecutions, VIC Police Force, NSW Police Force, NSW Office of the Director of Public Prosecutions cc: Prime Minister Tony Abbott, Senator the Hon George Brandis QC, The Hon Joe Hockey MP - Treasurer, Senator the Hon David Johnston - Defence Minister, The Hon Stuart Robert MP - Assistant Defence Minister, The Hon Michael Keenan MP - Justice Minister.
[40] 2012-03-12 From Brendan Jones to Labor Minister for Justice Jason Clare - why no response from AFP? https://tinyurl.com/nk86vvl
[41] 2013-12-03 Multijurisdictional State & Federal Crime Report: DSTO (CONFIDENTIAL - Qualified Privilege), To: Australian Commission for Law Enforcement Integrity, VIC Office of Public Prosecutions, VIC Police Force, NSW Police Force, NSW Office of the Director of Public Prosecutions cc: Prime Minister Tony Abbott, Senator the Hon George Brandis QC, The Hon Joe Hockey MP - Treasurer, Senator the Hon David Johnston - Defence Minister, The Hon Stuart Robert MP - Assistant Defence Minister, The Hon Michael Keenan MP - Justice Minister.
[42] “OUR CORRUPT LEGAL SYSTEM - Why Everyone Is a Victim (Except Rich Criminals).” Evan Whitton.
ISBN: 978-1-921681-07-3 http://netk.net.au/Whitton/OCLS.pdf
http://booko.com.au/9781921681073/Our-Corrupt-Legal-System
ISBN: 978-1-921681-07-3 http://netk.net.au/Whitton/OCLS.pdf
http://booko.com.au/9781921681073/Our-Corrupt-Legal-System
[43] “McClelland commits to model litigant rules,” Chris Merritt, The Australian, 2011-08-12. “Federal Attorney-General Robert McClelland has declared that it is unacceptable for federal government agencies to breach the model litigant rules. "Without making any comments on specific cases, any breach of the model litigant obligation would be unacceptable as the Australian government is committed to achieving the highest professional standards in its handling of claims and litigation," Mr McClelland said. "The legal services directions are currently under review and I am committed to ensuring that commonwealth agencies act with complete propriety, fairness and to the highest professional standard.” http://www.theaustralian.com.au/business/legal-affairs/mcclelland-commits-to-model-litigant-rules/story-e6frg97x-1226113390895
Although Attorney-General Robert McClelland ordered investigations into Breaches of the Model Litigant Policy, he was sacked by Labor Prime Minister Julia Gillard and replaced with Nicola Roxon who did not use her lawful power to stop the ongoing Model Litigant Policy breaches.
[44] “Gillard Government lashed for ‘ignoring’ breaches of Model Litigant rules”, Chris Merritt, The Australian, 2012-04-13. “The federal government has rejected criticism of the way its agencies conduct themselves in court and believes just one agency has breached the government's model litigant rules in the past two years. The government's assessment is at odds with court rulings assembled by the Rule of Law Institute, in which federal and state judges had accused several government agencies of not acting fairly. "The government ignores legitimate judicial comment on model litigant behaviour by the Crown at its own peril," said Richard Gilbert, chief executive of the Rule of Law Institute.” http://www.theaustralian.com.au/business/legal-affairs/gillard-government-lashed-for-ignoring-breaches-of-model-litigant-rules/story-e6frg97x-1226325228917
“Fed agencies accused of cover-up of breaches”, Chris Merritt, The Australian, 2012-08-12. “The federal government has been accused of covering up breaches of its model litigant rules that have resulted in a series of government agencies being heavily criticised in court. Judgments collated by the Rule of Law Institute show courts have strongly criticised federal agencies over a series of incidents revealing apparent breaches of the model litigant rules.” http://www.theaustralian.com.au/business/legal-affairs/fed-agencies-accused-of-cover-up-of-breaches/story-e6frg97x-1226113387964
[45] 2012-02-09 Hansard - Senate Question re Model Litigant Policy Compliance: “The types of sanctions that could be imposed by the Attorney in cases of serious breach include: Issuing directives to require an agency to handle of conduct litigation in a particular matter (including a directive as to which legal service provider should represent the agency).”
[46] 2013-04-24(29) Open Letter to the High-Tech Community: Federal Government Corruption Makes Australia too Dangerous for High-Tech Business and Start-ups. “Lawyers are paid by the hour, so it is not in their interest to settle a case. Instead they escalate litigation to run up legal costs and stress their opponent’s finances until they can no longer afford it. If it goes to court and it is appealed all the way to the High Court, all the better; Lawyers get paid regardless of who wins. They will spend more of their client’s money fighting a case than they would to settle it. This is even worse when the government is involved, because it’s not even their client’s money: It’s taxpayer money; Thus lawyers are paid with taxpayer money to help public officials conceal misuse of taxpayer money! The worst known example of court abuse is the HMAS Voyager disaster where lawyers ran up costs and denied victims compensation for over 40 years.”
http://victimsofdsto.com/online
http://victimsofdsto.com/online
[47] “Can of Worms II: 4. THE BUREAUCRACY: The Voyager cover-up”, Evan Whitton, “The Voyager affair was perhaps the most sustained, but finally the most closely-documented cover-up in Australian public life.” http://netk.net.au/Whitton/Worms22.asp http://netk.net.au/Whitton/Worms23.asp
“Lawyers still battling over Voyager”, Nicola Berkovic, The Australian, 2008-05-02, “The Rudd Government is spending millions of dollars on litigation because of its failure to deliver on a key election promise. More than 44 years after Australia’s worst peacetime naval disaster, survivors of the collision between HMAS Melbourne and HMAS Voyager are still fighting the Government for compensation.” http://www.theaustralian.com.au/business/legal-affairs/lawyers-still-battling-over-voyager/story-e6frg97x-1111116220804
“Lawyers still battling over Voyager”, Nicola Berkovic, The Australian, 2008-05-02, “The Rudd Government is spending millions of dollars on litigation because of its failure to deliver on a key election promise. More than 44 years after Australia’s worst peacetime naval disaster, survivors of the collision between HMAS Melbourne and HMAS Voyager are still fighting the Government for compensation.” http://www.theaustralian.com.au/business/legal-affairs/lawyers-still-battling-over-voyager/story-e6frg97x-1111116220804
[48] “The Reality about Being a Complainant in the APS - A Guide.” JA James. “…APS agencies are determined to 'contain' complaints in order to reduce legal liability risks and reputational damage. Where perpetrators (particularly perpetrators who are more assertive and are seen as more valuable to the APS agency than the targets) deny their behaviour, it is easier and more expedient for the APS agency's 'containment' strategy to focus on blaming, discounting and controlling the target rather than addressing the perpetrator's behaviour, and the APS agency's culture and system inadequacies. Thirdly, APS employees and APS agencies are relatively divorced from the financial consequences of engagement in misconduct, thereby reducing the incentive for engagement in accountable and ethical behaviour at the individual level and organisational level. APS perpetrators can access tax-payer funded legal representation under the Legal Services Directions 2005 in legal actions taken by targets, but targets do not have access to the same privilege (thereby creating an uneven playing field). Compensation payouts and legal fees do not come out of APS agencies' operating budgets, but rather they are covered by ComCover or Comcare (the APS insurance providers). Fourthly, a considerable number of APS employees higher up in the APS hierarchy are, or have been, themselves, perpetrators of workplace mistreatment, which manifests into a culture of 'perpetrators protecting perpetrators'.”
http://www.apsbullying.com/the-reality.html
http://www.apsbullying.com/the-reality.html
[49] “The tax office and the expensive muzzle on complainants”, Chris Seage, Crikey, January 8, 2013. “The ATO advised Kurzer of its decision after receiving advice from [Big Law firm] Minter Ellison, that no defective administration arose and no compensation was payable. Kurzer continued to owe $120,000. Minter Ellison charged the ATO $128,000 for this advice, as documents obtained by Crikey under freedom of information laws show.” http://www.crikey.com.au/2013/01/08/the-tax-office-and-the-expensive-muzzle-on-complainants
A victims advocate provided examples for another agency: ‘$800K contesting a $200K dispute they lost, $1M contesting a $3,500 dispute, and running up $300K legal bills instead of arbitration” I am also aware of other cases through victims and victims advocates, and The Rule of Law Institute has documented others here: http://www.ruleoflaw.org.au/priorities/mlrs/.
[50] Macquarie University built a teaching hospital (182 beds, 12 operating theatres, 200 surgeons and medical specialists) for $250M. http://en.wikipedia.org/wiki/Macquarie_University_Hospital
[51] “Clayton Utz dominates govt legal spend,” December 11, 2011, Lawyers Weekly “Clayton Utz has taken the largest share of the Commonwealth's legal spend amongst external law firms. According to the Commonwealth Legal Services Expenditure Report 2010-11, released on Friday (9 December), Clayton Utz walked away with $36.6 million (13 %) of the $281.6 million the Commonwealth paid to external legal services providers.”
http://www.lawyersweekly.com.au/news/clayton-utz-dominates-govt-legal-spend
http://www.lawyersweekly.com.au/news/clayton-utz-dominates-govt-legal-spend
[52] “The attraction of going public,” June 17, 2009. Lawyers Weekly. Even lawyers at the government’s own law firm, the AGS, are expected to rack up billable hours: "A senior executive lawyer in AGS’s Canberra litigation and dispute team explains, this means that billable hours and budgets are as much a part of life for AGS lawyers as they are for any private practitioner." http://www.lawyersweekly.com.au/features/the-attraction-of-going-public
[53] @FOIcentric: “The Fed Government spent $714.67M in legal services expenditure for 2012-2013 FY. $351.93M went to external law firms” https://tinyurl.com/p3aqmmw
[54] “The Parliament of Australia(n lawyers),” Evan Whitton, Independent Australia, August 23, 2013. “Q. How many lawyers are actually in the Parliament (not counting the Labor six making a graceful exit: Julia Gillard, Simon Crean, Stephen Smith, Nicola Roxon, Peter Garrett, Robert McClelland.)? A. 60 (26.5%.)”http://www.independentaustralia.net/politics/politics-display/the-parliament-of-australian-lawyers,5652
[55] Many politicians are former lawyers, coming from (and going back to) Australia’s so-called “Big Law” law firms. These firms are all on retainer to the government, and will not represent victims of government abuse pro bono due to their “client alignment policies.” [Source: Correspondence with said law firms requesting pro bono assistance]
[56] “'Let's name, shame agencies behaving badly',” Chris Merritt, The Australian, 2013-09-20. “The Abbott government has been urged to overhaul the rules governing the conduct of federal agencies in court so the organisations with the worst behaviour can be identified. Research by the Rule of Law Institute has revealed a surge in breaches of the government's legal services directions - which cover the conduct of federal agencies in court as well as the way in which they buy legal services. … [Ms Burns] said Attorney-General George Brandis already had the power to impose sanctions on federal agencies that breached the model litigant rules. … "At the moment there seems to be a history of courts making adverse costs orders against the commonwealth where there have been breaches of the model litigant obligations, but those costs orders are in effect paid by the taxpayer," Ms Burns said. ” http://www.theaustralian.com.au/business/legal-affairs/lets-name-shame-agencies-behaving-badly/story-e6frg97x-1226722986368 and to the profit of the government law firms.
[57] 2011-04-07(11) Letter to Defence Director of Fraud Control Policy and Ethics: “You said the appropriate forum for me to pursue that is through the courts (at my own expense). You said if the courts ultimately determined there was misconduct you would reconsider, but you would not otherwise be taking any action. You are only telling me this nearly two years after I submitted my original complaint to you, and only weeks before the statue of limitations expires. This is unacceptable. Further I told you in our previous meeting and in nearly every letter I wrote regarding this matter that I did not have the financial resources to take the Commonwealth to court. How many victims do?”
[58] 2011-08-04 From Michelle Curran for Senator Hogg: “Firstly, with regard to your questions about a review, I have been advised that your only course of action is litigation, as this case is outside the scope of a review.”
[59] 2012-07-17 To Clayton Utz: “I have written to your client numerous times pointing out their legal obligations under the Model Litigant Policy which include that we negotiate so as to avoid costly litigation, but your client has ignored this and continues to breach the policy.” “By failing to comply with Model Litigant Policy and by forcing costly court hearings your client has put me in an untenable position”
[60] For example: “Revealed: the government agency stealing ideas from businesses,” Chris Seage, Crikey.com.au, December 2, 2013. “A number of businesses are complaining a Defence Department organisation has stolen their intellectual property, Crikey can reveal. Chris Seage reports new legislation [The Defence Trade Controls Act] makes the problem worse.” http://www.crikey.com.au/2013/12/02/revealed-the-government-agency-stealing-ideas-from-businesses/
None of the victims were able to satisfactorily resolve their grievances through internal complaints channels or litigation.
[61] 2012-05-14 Letter to Labor Attorney-General Nicola Roxon & Defence Science Minister Warren Snowdon
[62] Correspondence with Prime Minister Julia Gillard: 2012-05-16 Minister for Defence Stephen Smith: 2011-04-11, 2011-04-18, 2011-04-27, 2011-04-28, 2011-05-06, 2011-06-13, 2011-06-27, 2011-06-28, 2011-07-04, 2012-05-13 Minister for Defence Science Warren Snowdon 2011-02-28, 2011-07-15, 2011-07-28, 2012-04-19, 2012-05-13, 2012-05-14, 2012-10-16 Attorney-General Nicola Roxon 2012-05-13, 2012-05-14, 2012-05-17 Attorney-General Mark Dreyfus: 2013-04-04. In addition many representations were made by now-retired Independents Tony Windsor MP and Rob Oakeshott MP.
[63] 2013-12-03 Multijurisdictional State & Federal Crime Report: DSTO (CONFIDENTIAL - Qualified Privilege), To: Australian Commission for Law Enforcement Integrity, VIC Office of Public Prosecutions, VIC Police Force, NSW Police Force, NSW Office of the Director of Public Prosecutions cc: Prime Minister Tony Abbott, Senator the Hon George Brandis QC, The Hon Joe Hockey MP - Treasurer, Senator the Hon David Johnston - Defence Minister, The Hon Stuart Robert MP - Assistant Defence Minister, The Hon Michael Keenan MP - Justice Minister.
[64] To the best of my knowledge in opposition the Liberal party never challenged Labor regarding the endemic crime and corruption in the public service reported by Linton Besser on 2011-09-24 and 2011-10-03.
Despite considerable correspondence (40+ letters and emails) with the opposition including a letter 2012-02-19 A Plea to the Opposition regarding Public Service Corruption, I only received a very weak response: In opposition on 2012-05-12 Senator Johnston’s media advisor would only say “he can't see how he can offer you any useful assistance at this point” and would not correspond further. Now in government Senator Abetz’s Chief of Staff claims he is powerless to intervene.
I did examine the Liberal Party policy documents in the lead-up to last year’s election. The “Coalition’s Policy to Tackle Crime” did promise to “pursue a zero tolerance approach to corruption in Customs agencies and those protecting our borders”, but didn’t say a word about stopping corruption anywhere else. http://www.liberal.org.au/latest-news/2013/08/19/tony-abbott-coalitions-policy-tackle-crime.
[65] 2014-01-21 From Eric Abetz via Chief of Staff Ben Davies: “The Minister does not have the ability to intervene in either of these matters.”
[66] 2014-01-21 From Eric Abetz via Chief of Staff Ben Davies: “If you wish to pursue your allegations further, these are the appropriate avenues in which to do so.”
[67] 2014-01-27 E-mail to Senator Eric Abetz, Minister Assisting the Prime Minister on the Public Service: “Mr. Abetz claims he is powerless to act because he has no statutory authority. I am already aware that the elected government has no legal power to sack a miscreant agency head no matter what they’ve done. But I am also aware that the Governor General *does* have that power, and that they rely on the advice of the elected government to exercise it. This is how [in 1999] John Moore sacked [Secretary of Defence] Paul Barratt.”
PUBLIC SERVICE ACT 1999 - SECT 47“Removal from office. (1) The Governor-General may remove the Commissioner from office if each House of the Parliament, in the same session of the Parliament, presents an address to the Governor-General praying for the removal of the Commissioner on the ground of misbehaviour or physical or mental incapacity.” http://www.austlii.edu.au/au/legis/cth/consol_act/psa1999152/s47.html
PUBLIC SERVICE ACT 1999 - SECT 47“Removal from office. (1) The Governor-General may remove the Commissioner from office if each House of the Parliament, in the same session of the Parliament, presents an address to the Governor-General praying for the removal of the Commissioner on the ground of misbehaviour or physical or mental incapacity.” http://www.austlii.edu.au/au/legis/cth/consol_act/psa1999152/s47.html
PUBLIC SERVICE ACT 1999 - SECT 59
“Termination of appointment (1) The Governor-General may, on the recommendation of the Prime Minister and by notice in writing, terminate the appointment of a Secretary. Note: In Barratt v Howard [1999] FCA 1132, the Federal Court of Australia described the basis on which requirements of procedural fairness applied to the termination of an appointment of Secretary under section 37 of the Public Service Act 1922 .” http://www.austlii.edu.au/au/legis/cth/consol_act/psa1999152/s59.html
“Termination of appointment (1) The Governor-General may, on the recommendation of the Prime Minister and by notice in writing, terminate the appointment of a Secretary. Note: In Barratt v Howard [1999] FCA 1132, the Federal Court of Australia described the basis on which requirements of procedural fairness applied to the termination of an appointment of Secretary under section 37 of the Public Service Act 1922 .” http://www.austlii.edu.au/au/legis/cth/consol_act/psa1999152/s59.html
PUBLIC SERVICE ACT 1999 - SECT 48C
“Termination of appointment (1) The Governor-General may, by notice in writing, on the recommendation of the Prime Minister, terminate the appointment of a Special Commissioner at any time.” http://www.austlii.edu.au/au/legis/cth/consol_act/psa1999152/s48c.html
“Termination of appointment (1) The Governor-General may, by notice in writing, on the recommendation of the Prime Minister, terminate the appointment of a Special Commissioner at any time.” http://www.austlii.edu.au/au/legis/cth/consol_act/psa1999152/s48c.html
“Power Without Responsibility: Ministerial Staffers in Australian Governments from Whitlam to Howard.” Anne Tiernan. UNSW Press, 2007. ISBN 978-0868409818.
“Departmental Secretaries. The new [Public Service] Act introduced important changes to the tenure of departmental secretaries. Under Labor, they had been brought more clearly under ministerial direction and control, through changes to appointment processes, notably the introduction of fixed-term contracts. The Howard reforms went further, giving the prime minister power to appoint and terminate secretaries (Weller 2001, p 34).
“Departmental Secretaries. The new [Public Service] Act introduced important changes to the tenure of departmental secretaries. Under Labor, they had been brought more clearly under ministerial direction and control, through changes to appointment processes, notably the introduction of fixed-term contracts. The Howard reforms went further, giving the prime minister power to appoint and terminate secretaries (Weller 2001, p 34).
Under the old Act this power resided in the governor-general, who acted on the advice of the prime minister. While there is a requirement to consult the secretary of the PM&C over secretary appointments, the new legislation gives the prime minister unfettered power over terminations.
These powers were first tested in 1999, when the government sacked the secretary of the department of defence, Paul Barratt, on the grounds he had lost the confidence of his minister. Recruited by Howard in 1996, Barratt had worked successfully with deputy prime minister John Anderson, and former defence minister Ian McLachlan.
But he was unable to develop an effective working relationship with the new minister, John Moore.
Barratt had raised concerns of over the conduct of Moore's chief of staff, long-time Liberal Party adviser, Brian Loughnane, in a meeting with Moore-Wilton. Barratt believe the ministerial staffer was acting as a de factor minister - taking decisions and giving directions without reference to Moore - and that this could become a problem for the government. Moreover, he considered Loughnane was actively cultivating suspicion and distrust between the minister and the department.
After rejecting the government's offer of a diplomatic appointment to New Zealand, the secretary's contract was terminated.
Barratt appealed the decision in the Federal Court.
The court found the prime minister does not require cause to dismiss a secretary. It concluded that while Barratt was entitled to procedural fairness - to be told why his appointment was being terminated - he had no further recourse (Weller 2001). Since the Barratt case, several secretaries have not had their contracts renewed or have resigned because they expected this would be the case. The government's decision not to renew defence secretary, Dr Allan Hawke's contract in September 2002 was because 'the Minister [Robert Hill] would prefer to have somebody else who had different attributes and suited his personal style better'.” http://booko.com.au/9780868409818/Power-without-Responsibility-
AAP General News (Australia). 08-31-1999. “FED: Prime minister announces Barratt sacked.” “The federal government has exercised its right - as recently confirmed by court - and sacked Defence Department secretary PAUL BARRATT. Prime Minister JOHN HOWARD says Governor-General Sir WILLIAM DEANE, acting on his advice, has terminated Mr BARRATT's appointment from the end of today.” AAP RTV mb/mfh/kbw/wz/kbw
Opinion: “Abbott must trust the public service”, Canberra Times, 2013-09-16. “Even if Mr Abbott wanted to take Mr Howard's route, he may find it a little harder than it was in 1996. For example, under the Public Service Act, only the governor-general can sack a departmental secretary, while in Mr Howard's day the prime minister could do it directly. Secretaries now also tend to have the security of five-year terms, rather than three.” http://www.canberratimes.com.au/comment/ct-editorial/abbott-must-trust-the-public-service-20130915-2tsnb.html
[68] Last year when Australian Parliament passed the Public Interest Disclosure Act 2012 (deeply-flawed whistleblowing laws), politicians gave themselves immunity so whistleblowers reporting corruption by politicians would not be protected on the grounds that politicians were ‘already held accountable by parliament.’ (“Politicians exclude themselves from dob-in laws”, Jessica Marszalek, Herald Sun, 2013-06-07. “Politicians have excluded themselves from new federal whistleblower laws expected to be passed this month in a move opponents believe will cover up scandal and corruption.” http://www.heraldsun.com.au/news/politicians-exclude-themselves-from-dob-in-laws/story-fni0fiyv-1226659581403 )
I contacted the Senate Legal and Constitutional Affairs Committee reviewing the proposed laws alerting them of a case where a particular politician was absolutely not being held accountable by Parliament. Yet Labor, Liberal and the Greens on the committee all ignored it (even the Greens who said politicians shouldn’t be exempt nevertheless wouldn’t use the case I gave them to prove it.) I contacted my local MP and state senators; my correspondence was ignored and my phone calls not returned.
Public perception is that politicians hold each other to account, but in practice they do not when it comes to corruption. An academic said this is because “they all think they have something to hide or could be potentially caught up in the wash.” In practical terms, corruption is of no interest to politicians nor public servants because the people who end up paying for it are the taxpayer who either don’t know it’s going on and even when they do (as is the case here), are powerless to do anything about it. http://victimsofdsto.com/guide/whistleblowers_guide_to_journalists.pdf
[69] Public service keeps fraud cases private”, 2011-09-24, SMH, Linton Besser, “Confidential files obtained using freedom of information show thousands of allegations of graft and abuse of office are being levelled against government staff each year - but only a handful are properly investigated.”http://www.smh.com.au/national/public-service-keeps-fraud-cases-private-20110923-1kpdr.html
[70] “Federal agencies lack firepower to deal with fraud”, 2011-10-03, SMH, Linton Besser. “An unknown number of corruption cases lie undiscovered inside the vast Commonwealth bureaucracy”, http://www.smh.com.au/national/federal-agencies-lack-firepower-to-deal-with-fraud-20111003-1l5dt.html
[71] “Revealed: the government agency stealing ideas from businesses,” Chris Seage, Crikey.com.au, December 2, 2013.“A number of businesses are complaining a Defence Department organisation has stolen their intellectual property, Crikey can reveal. Chris Seage reports new legislation [The Defence Trade Controls Act] makes the problem worse.” http://www.crikey.com.au/2013/12/02/revealed-the-government-agency-stealing-ideas-from-businesses/
[72] HOUSE OF REPRESENTATIVES - Defence Trade Controls Bill 2011 - Consideration of Senate Message and Unrelated Amendments - SPEECH - Tuesday, 30 October 2012 – Robert Oakeshott MP:
“The McCarthyist intent may be honourable, but the delivery through this legislation is dangerous. It is jeopardising our commitment to a research sector in Australia that I would have thought is important to all of us in the many fields that we deal with in this chamber, from food and fibre production all the way through to the medical and health sciences. The kinds of science that are covered by this Defence Trade Controls Bill are innovation advancing public health, improving agriculture, mining and manufacturing, and supporting Australia’s civilian innovation sector. That is because this research sometimes also has military applications. Open scientific research is, however, low or no risk in respect of military applications. For that reason, why on earth are we leaving that exposed, and why on earth are we therefore including a criminal offence for a researcher in that space?
I express my deepest want: for the minister, the shadow minister and the carriers of the education portfolios on both sides to have another look at this. Those two areas in particular should not pass in the form that they are in. We should be supporting what the Liberal Party put up in the Senate yesterday and had the potential to get through this chamber today. I find it extraordinary that they have chosen for some reason today to fold their cards. I will not.”
http://roboakeshott.com/system/ files/Defence Trade Controls Bill.pdf
http://roboakeshott.com/system/ files/Defence Trade Controls Bill.pdf
[73] The (according to Senator Johnston) “inadequately prepared,” “inadequately thought through” bill was rushed into law for a visit of US Secretary of Defence Leon Panetta:
“Panetta Heads to Australia to Ramp Up Marine Presence”, Gopal Ratnam, Bloomberg, 13 November 2012. “Defense Secretary Leon Panetta arrives in Australia today ...” http://www.bloomberg.com/news/2012-11-13/panetta-heads-to-australia-to-ramp-up-marine-presence.html
[74] “On 13 November 2012, the Defence Trade Controls Act 2012 (the Act) received Royal Assent.” https://exportcontrols.govspace.gov.au/
[75] “Tighter Defence ties will bind academics and stifle innovation”, Jill Trewhella, SMH, 2013-04-23. “The legislation gives unprecedented authority to one department to decide what research can be communicated and to whom and given the bill covers technologies with military and civilian applications, Defence is alarmingly unqualified for the task.” http://www.smh.com.au/opinion/politics/tighter-defence-ties-will-bind-academics-and-stifle-innovation-20121009-27b4n.html
[76] “Science and the slammer: the consequences of Australia’s new export control regime”, 2012-10-16, Michael J. Biercuk, Senior Lecturer in the School of Physics, University of Sydney. http://theconversation.com/science-and-the-slammer-the-consequences-of-australias-new-export-control-regime-10127
[77] Ibid.
[78] “Revealed: the government agency stealing ideas from businesses,” Chris Seage, Crikey.com.au, December 2, 2013. “A number of businesses are complaining a Defence Department organisation has stolen their intellectual property, Crikey can reveal. Chris Seage reports new legislation [The Defence Trade Controls Act] makes the problem worse.” http://www.crikey.com.au/2013/12/02/revealed-the-government-agency-stealing-ideas-from-businesses/
[79] “Against Writs of Assistance,” James Otis, February 24, 1761. The "Writs of Assistance" were general warrants allowing officials to search for smuggled material within any suspected premises. James Otis was Advocate-General when the legality of these warrants was attacked, but promptly resigned his office when called upon to defend that legality. … In a five-hour speech, which was witnessed by a young John Adams, Otis argued that the writs were unconstitutional. He based his case on the rights guaranteed in English common law. The ultimate response to this abuse was the Fourth Amendment to the Constitution for the United States. http://www.constitution.org/bor/otis_against_writs.htm
[80] ‘John Adams claimed that ‘the child independence was then and there born, [for] every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistance”’ https://en.wikipedia.org/wiki/James_Otis,_Jr.
[81] James Otis Jr.: “A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court may inquire.” 79
[82] “The NSA’s "General Warrants": How the Founding Fathers Fought an 18th Century Version of the President's Illegal Domestic Spying,” David Snyder, “Using "writs of assistance," the King authorized his agents to carry out wide-ranging searches of anyone, anywhere, and anytime regardless of whether they were suspected of a crime. These "hated writs" spurred colonists toward revolution and directly motivated James Madison's crafting of the Fourth Amendment.” https://www.eff.org/files/filenode/att/generalwarrantsmemo.pdf
[83] Researchers who wish to communicate about technology with other researchers on a regular basis (outside the unwieldy Permit system; punishable by 10 years imprisonment for an infraction, monitorable through the government’s metadata surveillance technology) must register as an ‘Australian Community member’, exposing them to the search and entry powers of the Act. One victim of IP theft by the DSTO responded by denying them physical entry to their premises, but under the new laws can no longer do that. Recall this does not apply just to military technology, but also civilian technology on an absurdly-broad dual-use list including medicine, computers, IT, telecommunications and electronics. http://www.austlii.edu.au/au/legis/cth/num_act/dtca2012207/s10.html http://victimsofdsto.com/dtca/
In addition, the Secretary of Defence has the power to demand any researcher (regardless of whether they are an ‘Australian Community member’ or not) to turn over their information to the department; failure to comply punishable by 6 months imprisonment. http://www.austlii.edu.au/au/legis/cth/num_act/dtca2012207/index.html (Parts 5 & 6).
This is unacceptable given Defence’s belief the DSTO is a commercial entity with a “wealth creation” role (Trenberth), the theft of intellectual property for the benefit of Defence’s business partners2 and (according to the Trenberth Report) “key success factors, especially the role of leadership by DSTO senior executives” in one such project where (unbeknownst to Trenberth) a senior executive and other staff acted criminally to advantage their product over the DSTO’s competitors.39 http://victimsofdsto.com/doc/2004-06%20Trenberth%20Review%20of%20the%20DSTO.pdf
Powers of search and entry under the Defence Trade Controls Act:
“DEFENCE TRADE CONTROLS ACT 2012 (NO. 153, 2012) - SECT 48.
Occupier to provide authorised officer with facilities and assistance.
(1) The occupier of premises entered under section 41, or another person who apparently represents the occupier, must provide: (a) an authorised officer exercising monitoring powers; and (b) any person assisting the authorised officer; with all reasonable facilities and assistance for the effective exercise of their powers. (2) A person commits an offence if: (a) the person is subject to subsection (1); and (b) the person fails to comply with that subsection.” http://www.austlii.edu.au/au/legis/cth/num_act/dtca2012207/s48.html
“DEFENCE TRADE CONTROLS ACT 2012 (NO. 153, 2012) - SECT 48.
Occupier to provide authorised officer with facilities and assistance.
(1) The occupier of premises entered under section 41, or another person who apparently represents the occupier, must provide: (a) an authorised officer exercising monitoring powers; and (b) any person assisting the authorised officer; with all reasonable facilities and assistance for the effective exercise of their powers. (2) A person commits an offence if: (a) the person is subject to subsection (1); and (b) the person fails to comply with that subsection.” http://www.austlii.edu.au/au/legis/cth/num_act/dtca2012207/s48.html
[84] “DEFENCE TRADE CONTROLS ACT 2012 (NO. 153, 2012) - SECT 41
Authorised officer may enter premises
(1) If a person holds an approval under section 27, then, for the purpose of finding out whether the person has complied with Part 3 or 6 or a condition of the approval, an authorised officer may: (a) enter the following premises at any reasonable time of day: … (iii) any premises in Australia used, wholly or partly, by the person for the purposes of business operations of the person, except premises used as a place of residence; and (b) exercise the monitoring powers set out in section 42 …” http://www.austlii.edu.au/au/legis/cth/num_act/dtca2012207/s41.html
“DEFENCE TRADE CONTROLS ACT 2012 (NO. 153, 2012) - SECT 42
Monitoring powers of authorised officers(1) The following are the monitoring powers that an authorised officer may exercise in relation to premises under section 41: a) the power to search the premises and any thing on the premises; (b) the power to inspect, examine, take measurements of or conduct tests on any thing on the premises; (c) the power to make any still or moving image or any recording of the premises or any thing on the premises; (d) the power to inspect any document on the premises; (e) the power to make copies of any such document; (f) the power to take onto the premises such equipment and materials as the authorised officer requires for the purpose of exercising powers set out in this section in relation to the premises;…”http://www.austlii.edu.au/au/legis/cth/num_act/dtca2012207/s42.html
Authorised officer may enter premises
(1) If a person holds an approval under section 27, then, for the purpose of finding out whether the person has complied with Part 3 or 6 or a condition of the approval, an authorised officer may: (a) enter the following premises at any reasonable time of day: … (iii) any premises in Australia used, wholly or partly, by the person for the purposes of business operations of the person, except premises used as a place of residence; and (b) exercise the monitoring powers set out in section 42 …” http://www.austlii.edu.au/au/legis/cth/num_act/dtca2012207/s41.html
“DEFENCE TRADE CONTROLS ACT 2012 (NO. 153, 2012) - SECT 42
Monitoring powers of authorised officers(1) The following are the monitoring powers that an authorised officer may exercise in relation to premises under section 41: a) the power to search the premises and any thing on the premises; (b) the power to inspect, examine, take measurements of or conduct tests on any thing on the premises; (c) the power to make any still or moving image or any recording of the premises or any thing on the premises; (d) the power to inspect any document on the premises; (e) the power to make copies of any such document; (f) the power to take onto the premises such equipment and materials as the authorised officer requires for the purpose of exercising powers set out in this section in relation to the premises;…”http://www.austlii.edu.au/au/legis/cth/num_act/dtca2012207/s42.html
DEFENCE TRADE CONTROLS ACT 2012 (NO. 153, 2012) - SECT 43
Authorised officer may require person to answer questions or produce documents
Requirement to answer questions (1) If: (a) an authorised officer enters premises under section 41; and (b) the authorised officer believes on reasonable grounds that a person present at the premises is capable of answering a question relating to whether the holder of the approval concerned has complied with Part 3 or 6 or a condition of the approval; the authorised officer may require the person to answer the question put by the authorised officer.
Requirement to produce documents (2) If: (a) an authorised officer enters premises under section 41; and (b) the authorised officer believes on reasonable grounds that a person present at the premises is capable of producing a document relating to whether the holder of the approval concerned has complied with Part 3 or 6 or a condition of the approval; the authorised officer may require the person to produce the document requested by the authorised officer. Offence (3) A person commits an offence if: (a) the person is subject to a requirement under subsection (1) or (2); and (b) the person fails to comply with the requirement. Penalty for contravention of this subsection: Imprisonment for 6 months.”http://www.austlii.edu.au/au/legis/cth/num_act/dtca2012207/s43.html
DEFENCE TRADE CONTROLS ACT 2012 (NO. 153, 2012) - SECT 44
Self-incrimination
(1) A person is not excused from answering a question or producing a document under section 43 on the ground that
the answer to the question or the production of the document might tend to incriminate the person or expose the person to a penalty. (2) However, in the case of an individual: (a) the answer given or the document produced; and (b) answering the question or producing the document; and (c) any information, document or thing obtained as a direct or indirect consequence of the answering of the question or producing the document; are not admissible in evidence against the individual in criminal proceedings other than: (d) proceedings for an offence against subsection 43(3); or (e) proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Part.”http://www.austlii.edu.au/au/legis/cth/num_act/dtca2012207/s43.html
That is: the evidence collected can be used to charge an individual for not turning over material demanded under Section 43 of this act (6 months imprisonment), or to charge them for providing False or Misleading information or documents to a public servant (12 months imprisonment) under Sections 137.1, 137.2 of the Criminal Code 1995: http://www.austlii.edu.au/au/legis/cth/consol_act/cca1995115/sch1.html )
DEFENCE TRADE CONTROLS ACT 2012 (NO. 153, 2012) - SECT 44
Self-incrimination
(1) A person is not excused from answering a question or producing a document under section 43 on the ground that
the answer to the question or the production of the document might tend to incriminate the person or expose the person to a penalty. (2) However, in the case of an individual: (a) the answer given or the document produced; and (b) answering the question or producing the document; and (c) any information, document or thing obtained as a direct or indirect consequence of the answering of the question or producing the document; are not admissible in evidence against the individual in criminal proceedings other than: (d) proceedings for an offence against subsection 43(3); or (e) proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Part.”http://www.austlii.edu.au/au/legis/cth/num_act/dtca2012207/s43.html
That is: the evidence collected can be used to charge an individual for not turning over material demanded under Section 43 of this act (6 months imprisonment), or to charge them for providing False or Misleading information or documents to a public servant (12 months imprisonment) under Sections 137.1, 137.2 of the Criminal Code 1995: http://www.austlii.edu.au/au/legis/cth/consol_act/cca1995115/sch1.html )
Further: The Defence Trade controls Act frequently states “A defendant bears an evidential burden in relation to the matter in …” That is: It is not up to the government to prove you are guilty. It is up to you to prove you are innocent.
Under the Defence Trade Controls Act, the Secretary of Defence appoints ‘Authorised Officers’ to wield these powers. But recall that Dr. Ian Watt as Secretary of Defence (to the best of my knowledge) failed to act against crime and misconduct by such staff within the Defence Audit Fraud unit [Letter to Dr. Ian Watt 2011-07-04]. Because it has been demonstrated that the Secretary of Defence cannot be relied upon to hold staff accountable for crimes and misconduct, the public cannot be expected to trust the integrity of the people appointed.
[85] Government law firm Clayton Utz: Motion to Dismiss Jones v. Commonwealth: “The reason we believe your claim will fail is because you allege that the Commonwealth owes innovators submitting products or technology for evaluation a duty of care to ensure that the evaluations are either fair, proper and accurate or that the confidential information is respected. There is no such duty of care in Australian law.”
[86] “Failure to act on corruption in internal complaints units”, 2013-08-29 An Open Letter to the Public Service Commissioner concerning Systemic Corruption in the Australian Public Service (APS) http://victimsofdsto.com/psc http://victimsofdsto.com/psc/#fail_int
[87] “Tighter Defence ties will bind academics and stifle innovation”, Jill Trewhella, SMH, 2013-04-23. “US researchers in accredited higher education institutions enjoy broad exclusions from export control relating to intangible transfers of dual-use technology for basic or applied research. However, Defence will impose far more restrictive controls on researchers, disadvantaging them compared with their US peers, especially given the relative importance of international collaboration to Australia.” http://www.smh.com.au/opinion/politics/tighter-defence-ties-will-bind-academics-and-stifle-innovation-20121009-27b4n.html
[88] “Science and the slammer: the consequences of Australia’s new export control regime”, 2012-10-16, Michael J. Biercuk, Senior Lecturer in the School of Physics, University of Sydney. “Not even the Americans have this” http://theconversation.com/science-and-the-slammer-the-consequences-of-australias-new-export-control-regime-10127
[89] My understanding is that in the courts (arbitrary) statutory law (written by public servants) trumps Common law (formed by the wisdom of judges in open courts, such as Lord Justice John Holt’s creation of the Misfeasance in public office in 1703). But while statutory law should in theory represent the will of the people through the elected government, in practice we frequently see statute law written to serve the interests of monied lobbyists, and public servants apparently deceiving politicians to pass the laws not as they were intended (e.g. the ability under the Public Interest Disclosure for them to sit on whistleblower complaints indefinitely) (Labor Attorney-General Mark Dreyfus QC: “The government cannot ‘sit’ on a disclosure indefinitely. There are time limits under the Act for steps to be taken to handle a disclosure, and this includes when an investigation into a disclosure must be completed.” Brendan Jones: “It can be extended indefinitely, in 90 day lots. Common sense says at some point the Ombudsman should put their foot down, but e.g. on 2011-03-24 the Ombudsman told me they thought the delay was reasonable. (I asked them “Do you really think not taking even rudimentary steps to secure evidence for two years is appropriate? Particularly when it was still in the hands of the perpetrators? And particularly when the head of the department concerned had been tipped off and had a Conflict of Interest?” They had also failed to interview other witnesses in that time, and ultimately refused to even speak to them.) On 2011-06-07 the Inspector General of Defence wrote: “I acknowledge that it took my office around 10 months to finalise our inquiries and this is longer than I would have liked. However, when one takes into account the inherent complexity of the matters raised, … it was simply beyond our capacity to finalise the matter more quickly.” In fact for most of that time they were doing nothing, and this makes the point they can offer any reason (e.g. claiming they are under resourced or still in “assessment phase”) and the Ombudsman won’t challenge it.” Mark Dreyfus QC: “One of the criteria for external disclosure, including to the media, is if the investigation has not taken place within the statutory time limit.” Brendan Jones: “Which can be extended indefinitely, in 90 day lots: [Public Interest Disclosure Act] “An investigation under this Division must be completed within 90 days after the relevant disclosure was allocated to the agency concerned” but “the Ombudsman may extend, or further extend, the 90 day period by such additional period (which may exceed 90 days) as the Ombudsman considers appropriate: (a) on the Ombudsman’s own initiative; or (b) if the agency is not the Ombudsman— on application made by the principal officer of the agency; or …” http://www.crikey.com.au/2013/07/30/you-better-be-careful-blowing-the-whistle-new-laws-have-holes/ )
[90] “How the DTCA threatens Aussie High-tech companies”, Brendan Jones, 2013-12, “The laws were dreamed up by the Australian public service who (ironically enough) did not do proper research. For example, after declaring there was no statistical data on how many research programs would be affected, they declared that only a small number of specialised research programs would be affected. When the Universities pointed out this was not the case, rather than admit their mistake the public service ignored them.” http://victimsofdsto.com/dtca/#badlaw
[91] “Tighter Defence ties will bind academics and stifle innovation”, Jill Trewhella, SMH, 2013-04-23. http://www.smh.com.au/opinion/politics/tighter-defence-ties-will-bind-academics-and-stifle-innovation-20121009-27b4n.html
[92] Ian Chubb defends researchers' prospects under the Defence Trade Controls Bill”, Jill Rowbotham, The Australian, 2012-11-02, “Scientists are concerned that use, development and research into certain materials and technology will be curtailed because of their classification as "dual-use'' goods, that can have military as well as civilian applications. Researchers who proceed without permits run the risk of prosecution, although not during the (2 year) trial. …University of Sydney deputy vice-chancellor (research) Jill Trewhella characterised the Bill as an "attack on our research enterprise'' …. It was "extraordinary'' for these kinds of constraints to be put on "our communication for fundamental science that is ordinarily shared in the open scientific literature'', she said. Some scientists were going to "have to assess the impact of this regulatory regime on their ability to be competitive and to do their work in Australia...they're concerned that they may have to go elsewhere to do their research.'' [Chief Commonwealth Scientist] Professor Chubb [promoting the bill] said: "Those boxing at shadows and guessing at what it (the laws) might mean to some unspecified but allegedly 'substantial' number of researchers can continue to do that if it makes them happy.''” http://www.theaustralian.com.au/higher-education/chubbs-defends-researchers-prospects-under-the-defence-trade-controls-bill/story-e6frgcjx-1226508483554
[93] “'Too expensive' - tech start-ups move overseas”, James Hutchinson and Agnes King, SMH, 2014-01-08.http://www.smh.com.au/business/too-expensive--tech-startups-move-overseas-20140108-30g4u.html
[94] “How the DTCA threatens Aussie High-tech companies”, Brendan Jones, 2013-12, “America has better access to talent, connections, venture capital, strong laws protecting trade secrets and apolitical federal law enforcement.” http://victimsofdsto.com/dtca/#badlaw
[95] 2012-12-04 Defence Trade Controls Act - Professor Ian Chubb AC
2013-03-28 Defence Trade Controls Act - Professor Ian Chubb AC, The Hon Mark Dreyfus QC MP (Attorney-General), Senator George Brandis (Shadow Attorney-General), The Hon Joe Hockey MP (Shadow Treasurer), Mr Michael Keenan MP (Shadow Justice), Mrs Sophie Mirabella MP (Shadow Innovation), Senator David Johnston (Shadow Defence), The Hon Stuart Robert (Shadow Defence Science), The Hon Julia Gillard MP (Prime Minister)
2013-04-29 Federal Government Corruption Makes Australia too Dangerous for High-Tech Business - Tony Abbott MP (Opposition Leader), Senator George Brandis (Shadow Attorney-General), Mr Michael Keenan MP (Shadow Justice), Senator David Johnston (Shadow Defence), The Hon Stuart Robert (Shadow Defence Science), Senator Ian MacDonald, Senator Humphries, Sophie Mirabella MP, Senator Mason, Andrew Robb MP, B Billson MP, Malcolm Turnbull MP, Senator Boswell, Senator Sue Boyce, Senator Joyce
2013-07-11 Response to Prof Chubb regarding the Defence Trade Control Act - Professor Ian Chubb AC, Senator George Brandis (Shadow Attorney-General), The Hon Joe Hockey MP (Shadow Treasurer), Mrs Sophie Mirabella MP (Shadow Innovation), Mr Michael Keenan MP (Shadow Justice), Malcolm Turnbull MP (Shadow Broadband), Bruce Billson MP (Shadow Small Business), Senator David Johnston (Shadow Defence), The Hon Stuart Robert (Shadow Defence Science), Senator the Hon Ronald Boswell (QLD), Senator Sue Boyce (QLD), Senator the Hon Brett Mason (QLD)
2013-12-03 Multijurisdictional State & Federal Crime Report: DSTO (CONFIDENTIAL - Qualified Privilege), Australian Commission for Law Enforcement Integrity, VIC Office of Public Prosecutions, VIC Police Force, NSW Police Force, NSW Office of the Director of Public Prosecutions, Prime Minister Tony Abbott, Senator the Hon George Brandis QC, The Hon Joe Hockey MP - Treasurer, Senator the Hon David Johnston - Defence Minister, The Hon Stuart Robert MP - Assistant Defence Minister, The Hon Michael Keenan MP - Justice Minister.
[96] 2014-01-08 Australian High-Tech Startups Moving Overseas - Prime Minister Tony Abbott, Senator Sue Boyce - QLD, Senator the Hon George Brandis QC (QLD), Senator the Hon Ronald Boswell, Senator the Hon Brett Mason, Senator the Hon Ian Macdonald - QLD, The Hon Joe Hockey MP - Treasurer, Senator the Hon David Johnston - Defence Minister, The Hon Stuart Robert MP - Assistant Defence Minister, The Hon Michael Keenan MP - Justice Minister, The Hon Ian Macfarlane MP - Minister for Industry, Bruce Billson MP (Small Business), The Hon Andrew Robb AO MP - Minister for Trade and Investment, Gambaro, Teresa (MP)
[97] Section 5 of the Bill of Rights 1688: “That it is the right of the subjects to petition the King and all commitments and prosecutions for such petitioning are illegal.” http://www.austlii.edu.au/au/legis/act/ consol_act/bor16881wams2c2306/index.html
[98] 2011-11-01 Letter to Merit Protection Commissioner and Public Service Commissioner regarding breaches of the APS Code of Conduct. (Both the Merit Protection Commissioner and Public Service Commissioner failed to act on this letter.)
[99] Note: To my knowledge neither the AFP, NSW or VIC police are acting on this crime report. The VIC police previously acknowledged it, but internally directed it to the wrong department. Rather than redirect it themselves, they wrote to me and said I would have to resubmit the complaint, acknowledging that this would further delay their acting upon it. The NSW police, the AFP and ACELI (Australian Commission for Law Enforcement Integrity) have not responded at all.
[100] 2013-08-29 An Open Letter to the Public Service Commissioner concerning Systemic Corruption in the Australian Public Service (APS) http://victimsofdsto.com/psc
[101] “COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 2
Governor-General. A Governor General appointed by the Queen shall be Her Majesty's representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen's pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him.” http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/xx2.html
Governor-General. A Governor General appointed by the Queen shall be Her Majesty's representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen's pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him.” http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/xx2.html
[102] Sir Paul Hasluck, The Office of Governor-General (originally given as The William Queale Memorial Lecture, Adelaide, 1972), Melbourne University Press, Carlton, 1979, p.30.: “[The Governor-General] has the responsibility to weigh and evaluate the advice and has the opportunity of discussion with his advisers. It would be precipitate and probably out of keeping with the nature of his office for him to reject advice outright but he is under no compulsion to accept it unquestioningly. He has a responsibility for seeing that the system works as required by the law and conventions of the Constitution but he does not try to do the work of Ministers.”
[103] Ibid. “In doing this he has two dominant interests - the stability of government (no matter from which political party it is drawn) and regard for the total and non-partisan overall interests of the people and the nation.”
[104] PUBLIC SERVICE ACT 1999 - SECT 47“Removal from office. (1) The Governor-General may remove the Commissioner from office if each House of the Parliament, in the same session of the Parliament, presents an address to the Governor-General praying for the removal of the Commissioner on the ground of misbehaviour or physical or mental incapacity.” http://www.austlii.edu.au/au/legis/cth/consol_act/psa1999152/s47.html
PUBLIC SERVICE ACT 1999 - SECT 59
“Termination of appointment (1) The Governor-General may, on the recommendation of the Prime Minister and by notice in writing, terminate the appointment of a Secretary. Note: In Barratt v Howard [1999] FCA 1132, the Federal Court of Australia described the basis on which requirements of procedural fairness applied to the termination of an appointment of Secretary under section 37 of the Public Service Act 1922 .” http://www.austlii.edu.au/au/legis/cth/consol_act/psa1999152/s59.html
“Termination of appointment (1) The Governor-General may, on the recommendation of the Prime Minister and by notice in writing, terminate the appointment of a Secretary. Note: In Barratt v Howard [1999] FCA 1132, the Federal Court of Australia described the basis on which requirements of procedural fairness applied to the termination of an appointment of Secretary under section 37 of the Public Service Act 1922 .” http://www.austlii.edu.au/au/legis/cth/consol_act/psa1999152/s59.html
PUBLIC SERVICE ACT 1999 - SECT 48C
“Termination of appointment (1) The Governor-General may, by notice in writing, on the recommendation of the Prime Minister, terminate the appointment of a Special Commissioner at any time.” http://www.austlii.edu.au/au/legis/cth/consol_act/psa1999152/s48c.html
“Termination of appointment (1) The Governor-General may, by notice in writing, on the recommendation of the Prime Minister, terminate the appointment of a Special Commissioner at any time.” http://www.austlii.edu.au/au/legis/cth/consol_act/psa1999152/s48c.html
[105] Ibid 102. “For him to take part in political argument would both be overstepping the boundaries of his office and lessening his own influence. He can himself question a conclusion, seek to know the reason for it, draw attention to relevant considerations to ensure they are taken into account, and satisfy himself that the proposal does express the single mind of his advisers, but he himself, while influencing the outcome of discussion in this way, needs to be careful not to be an advocate of any partisan cause.”
[106] “The Role of the Governor-General,” Sir David Smith, KCVO, AO: “So the real question is not at all how much power does the Governor-General himself have or exercise, but rather how much absolute power does his presence in our system of government deny to those who are in Government, and who must first seek to advise and persuade him. In the words of another former Governor-General, Sir Zelman Cowen: "By a due attendance to the business of his office, by the exercise of functions and influence within the limits described by Bagehot [to be consulted, to encourage, and to warn], a Governor-General can, in appropriate cases, exercise an effective influence on the processes of government."” Proceedings of the Eighth Conference of The Samuel Griffith Society, University House, Canberra; 7-9 March, 1997. http://www.samuelgriffith.org.au/papers/html/volume8/v8chap8.htm
Although in theory a representative democracy, in practice Australians have no influence over their elected government in the four years between elections. During that period they rule with absolute power, seen in their ability to break promises and implement unannounced unpopular policies the public were never told about nor given the opportunity to vote on.
The public service are not elected by the public, and with the integrity agencies corrupted and Parliament refusing to intervene, are in practical terms accountable to no one. 34 41
Minor public servants are persecuted (e.g. Michaela Banerji for anonymously expressing an opinion critical of the government, Allan Kessing for reporting drug smuggling by public servants at Sydney Airport), yet Senior public servants and those committing serious crimes are not held accountable.34
The only checks on this power are (i) the judiciary (unaffordable to most people, esp. given Model Litigant Policy abuse), (ii) federal law enforcement (corrupt34, and under the control of the government), and (iii) the Governor-General.
[107] The Public Service Commissioner never responded to this letter.
[108] To my knowledge neither the AFP, NSW or VIC police are acting on this crime report. The VIC police previously acknowledged it, but internally directed it to the wrong department. Rather than redirect it themselves, they wrote to me and said I would have to resubmit the complaint, acknowledging that this would further delay their acting upon it. The NSW police, the AFP and ACELI (Australian Commission for Law Enforcement Integrity) have not responded at all.
[109] Both the Merit Protection Commissioner and Public Service Commissioner claimed they had no statutory authority to act on this letter, and so to the best of my knowledge did nothing.
[110] Full exchange: https://tinyurl.com/nfy3pav
[111] Dr. Ian Watt did not respond to this letter. When Michelle Curran for Senator Hogg contacted Defence she was told (in violation of the Model Litigant Policy) that my only avenue was litigation.
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