UNCLASSIFIED – NOT CONFIDENTIAL – PLEASE DISTRIBUTE FREELY
Brendan Jones
Brisbane QLD Australia
Web: http://victimsofdsto.com
E-mail: victimsofdsto@gmail.com
E-mail for full contact details
An Open Letter to the Public Service Commissioner concerning Systemic Corruption in the Australian Public Service (APS)
Mr. Stephen Sedgwick, Public Service Commissioner, 16 Furzer Street, Phillip ACT 2606. E-mail: steve.sedgwick@apsc.gov.au
August 29(31)(5), 2013
Dear Sir,
Howard Whitton said:
‘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 ICAC has demonstrated that it is very widespread.’[1]
I believe the reason you have been unable to stop corruption within the APS is because you have not tackled the root cause: corruption within the Commonwealth integrity agencies; The AFP,
[2] OLSC,
[3] The Ombudsman and the internal complaints units themselves.
I refer to your July 30 speech
[4] regarding whistleblowing and the
Public Interest Disclosure Act,
[5] and your recent profile with Noel Towell
“Challenges in a changing world.”[6]
You acknowledge serious misconduct within the APS, and that your employees do not trust the internal complaints units. Yet you expect your employees to continue to use them. It is obvious they will not, and so corruption that costs the government up to $19B per annum will continue.
You had the opportunity to show leadership by acting on crimes and misconduct within the Defence internal complaints unit, but you declined to act and claimed you had no authority. Yet legal scholars who have read your letter claiming this strongly disagree with you.
In your speech you described how the APS Code of Conduct forbids your employees from supplying false and misleading information or acting on insider information. Yet confronted with evidence of these Code of Conduct breaches within the Department of Defence (which their internal complaints unit still refuses to investigate), you declined to take any action.
After waiting 17 years the new whistleblowing laws are so bad that whistleblowers cannot use them. You yourself note they largely replicate existing inquiry mechanisms which many of your employees already distrust and many refuse to use. Dr AJ Brown’s claim the new laws represent ‘International Best Practice’ is not credible.
Whistleblowers were frozen out of these laws’ consultation process. Instead a government-funded
‘Whistling While They Work’ project was commissioned to survey whistleblowing, but it was not credible research. Most ridiculously, it excluded whistleblowers who had been sacked or resigned.
[7] These would have been the worst cases of agency abuse of whistleblowers. The study was done in partnership with agencies who had a conflict of interest. This project cost the taxpayer ~$1M,
[8] but failed to provide legislators with the comprehensive view of whistleblowing they needed.
You justified the threat of 2 years imprisonment for whistleblowers (whom you call “leakers”) by claiming government confidentiality is necessary to preserve the“relationship of trust that must exist between ministers and APS.” You did not tell your audience how Section 70 has been used to conceal APS corruption and maladministration, which is most definitely not in the public interest.
Table of Contents
You told Mr. Towell you believed the passage of the
Public Interest Disclosure Act would not dramatically change the landscape.
[9] I agree, because the new laws are so weak that whistleblowers cannot use them.
[10]
You said the arrangements largely replicate existing inquiry and review mechanisms in the APS. And indeed agencies will continue to investigate their own complaints, despite the obvious conflict of interest already evident in their improper handling of existing whistleblower complaints and
APS Code of Conduct investigations.
[11][12]
As the Public Service Commissioner your role is to promote and evaluate agencies’ compliance with
APS Code of Conduct.
[13] Therefore if you weren’t already aware that internal complaints units were improperly performing their duties, you would have been when it was reported in the national press and again when I wrote to you about it. In fact my 58 page letter documented by statute and with evidence crimes and misconduct by staff within the defence complaints unit itself.
[14]
Your response to me was that you had no authority to act.
[15]
Without first addressing misconduct within the internal complaints units themselves, you cannot expect whistleblowers to take their complaints to these units where they can be indefinitely delayed and the whistleblower exposed to harm without being allowed to speak to the media. And of course if they do break and speak to the media, even anonymously, they’ve already identified themselves.
[16]
Allan Kessing maintains he wasn’t responsible for the leak to
The Australian,
[17] but was under suspicion for already trying to resolve his complaint through legitimate channels.
[18] Making an example of him has however backfired, because now people making complaints with no intention of ever going to the media will know if someone else leaks they might be charged. Lack of evidence isn’t a problem: The AFP allegedly withheld evidence of his innocence from Allan Kessing’s trial
[19] and the NCA
[20] allegedly manufactured false evidence against whistleblower Mick Skrijel.
[21]
According to your own official figures half of your employees would not report corruption because they do not trust the internal complaints units or fear reprisals. Of the 20,000 incidents of serious misconduct last year, most were not even reported and of those that were 55% were mishandled.
[22]
Yet you expect people continue to use internal complaint units. This makes no sense.
[23]
If you were fixing problems internally whistleblowers wouldn’t need to go outside the APS. Yet when I told you the AFP had failed to act on my crime report,
[24] you appeared unconcerned.
[25]
Likewise when I told you Defence had failed to act on my
APS Code of Conduct complaint, you told me you could only intervene if I alleged the Secretary of Defence was
personally corrupt.[26] But Dr. Ian Watt was not the subject of my complaint. All I could say of him was he didn’t reply to a letter alerting him that his department was not acting on my complaint.
[27]
On November 1, 2011 I had provided you with a 58-page document which described in detail statutory, criminal and APS
Code of Conduct breaches by 8 public servants, including certain staff within the Defence internal complaints unit itself.
[28]
This was an opportunity for you to show leadership by upholding APS values. You could have intervened to restore your employees’ faith in the internal complaints handling process. Yet you claimed you had no authority to act, and declined to become involved.
[29]
I would like to remind you of Lieutenant General David Morrison’s truism that “The standard of behaviour you walk past is the standard you accept,” because that is what you have done.
I understand you have been in public sector for 42 years. I have worked in the private sector for 27 years, and in all that time I have never seen anything like this.
I have never worked for a company where a director who learned of fraud would refuse to act because it was taking place in another division. Nor have I ever heard of a CEO who declined to act against fraud in a division unless the whistleblower could also show the director (who had not acted) was personally corrupt. Any company which acted that way would end up bankrupt, or at least be haemorrhaging money.
What sort of an example does this set for public servants witnessing corruption, when even the Public Service Commissioner himself learns of serious corruption but declines to get involved?
[30]
In the private sector even junior employees are trained to take ownership of problems they identify even when they lack the authority to fix it themselves. They are trained not to let go until it has been solved, and that duty continues after it has been handed over to someone else. They don’t turn a blind eye, or fob it off and forget: That would be fatal to the company.
Likewise I can’t imagine a CEO being content to learn that
[31] half of his employees would not report corruption if they saw it. Nor that of the 20,000 incident of serious misconduct last year, most were not even reported or were mishandled.
[32] Nor that the failure to tackle corruption was costing them up to $19B a year
[33]; half the amount of the Enron fraud.
[34] Their organisation would go bankrupt.
But of course the APS won’t go bankrupt. The government can raise money to cover its losses from the taxpayer who can’t apply the normal rules of economics to shop for a better deal elsewhere.
Further in the private sector I have never once heard the phrase ‘Zero Tolerance to Corruption’, because it’s never been necessary to articulate it: Corrupt employees are dealt with immediately. In one case a company I worked at caught an employee embezzling. Management fired them on the spot, called the police and then called company-wide employees meetings to announce what had happened and affirm they would not try and hide it. They showed strong moral leadership. They sent a message to all employees that corruption was an unacceptable practice.
Contrast this to the APS’ handling of my complaint where after four years none of the perpetrators have been held to account, and you yourself have twice declined to become involved.
Since your original failure to act, the number of public officials involved has grown from 8 to 17 as others have violated the APS
Code of Conduct and the
Criminal Code to continue to conceal the original breaches.
[35] [36] Not intervening did them no favours.
I again remind you of Lieutenant General David Morrison’s truism: “The standard of behaviour you walk past is the standard you accept.”
5. Failure to exercise your statutory authority
Your excuse that you have no statutory authority is debatable: A legal academic who along with a QC reviewed your letter strongly disagreed.
[37]
And even if it were true, you could still have raised the matter with your colleague Dr. Ian Watt or the Minister for Public Service Gary Gray who had said
“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.”[38] Even if I had misinterpreted that statement as your letter claimed,
[39] he nevertheless sets out clearly what he expects of you.
5.1. Your job description
Your job description says the Australian Public Service Commissioner is responsible for:
[40]
· Promoting the APS Values, the APS Employment Principles and the Code of Conduct;
· Evaluating the extent to which Agencies incorporate and uphold the APS Values and the APS Employment Principles, and
· Evaluating the adequacy of systems and procedures in agencies for ensuring compliance with the Code of Conduct.
It appears to me that every aspect of your job description concerns APS Values and the APS Code of Conduct. This makes your claim you have no authority to act all the harder for me to accept.
6. Your definition of whistleblowers
In your recent speech you claimed that open government must be balanced against the ability of government to function effectively by keeping some maters confidential.
[41] But it is not true that the ability of a government to function effectively hinges on keeping matters of corruption and maladministration confidential.
In your speech you defined whistleblowers as someone who
“reports something internally to a person competent to fix the problem” and a leaker as someone who (seeks to fix the problem) by going outside the organisation.
[42]
Firstly your definition of a whistleblower is at odds with the publicly accepted definitions which don’t say anything about having to use a (corrupt) internal reporting channel first:
Oxford: “a person who informs on a person or organization engaged in an illicit activity.”
Macquarie: “a person who alerts the public to some scandalous practice or evidence of corruption on the part of someone else”
Secondly every whistleblower I know of only went to the media after trying to resolve their complaints internally, without success.
Being private-sector myself I wasn’t subject to
Section 70 of the
Crimes Act and so I could have taken my complaint to the media immediately. Yet I chose to report it internally because I did not want to embarrass either the government or the Department of Defence. Instead of using that opportunity Defence sat on my complaint, making increasingly implausible excuses for the delays.
[43] I waited 17 months before I finally contacted the opposition and the media.
[44] [45] [46]
If you were fixing problems internally whistleblowers wouldn’t need to go outside the APS.
Whistleblowers were frozen out of the consultation process for the
Public Interest Disclosure Act in favour of politicians and “whistleblowing experts.”
[47]
Dr. Kim Sawyer said: “Real whistleblowers, that is, people who have blown the whistle and paid the price, are very disappointed with the legislation. We were not listened to.”
Serene Teffaha said: “The only experts here are actual whistleblowers. Academics funded through Government, hiding behind aging desks, are not authority on qualitative experience.”
I was not even permitted to contribute to the senate inquiry. The Committee Secretary told me the Committee reviewed my submission and decided it
“was not relevant and would not be accepted.” [48] Hard to believe given there are 66 senators on that committee. Crikey obviously thought what I had to say was relevant,
[49] which public law lecturer Dr Gabrielle Appleby described as a
“Good critique of the weaknesses of the new federal whistleblower legislation.” [50]
I am also surprised that you and the Attorney-General were apparently unaware complaints could be delayed indefinitely under the legislation.
[51] Whomever drafted the law certainly knew it.
I understand the PID
[52] was drafted based on research by the ‘Whistling While They Work’ Project, described as ‘
the world’s most substantial piece of research in the world into public sector whistleblowing which was conducted here in Australia.’[53] [54] [55] [56]
Myself and other whistleblowers have concerns about WWTW. It was funded by the government,
[57] so there would be an implicit pressure not to produce results embarrassing to the government.
[58] It was produced in partnership with the APSC and the Commonwealth Ombudsman who have a potential conflict of interest.
[59]The two academics leading the project were former employees of the Commonwealth Ombudsman
[60] and Attorney-Generals’ Department
[61] respectively, creating a potential conflict of interest since both these agencies participate in systemic corruption.
[62]
The report was done in partnership with Transparency International. This in itself does not provide oversight. Calvin Tucker writing for The Guardian says “The international corporate media considers TI to be a reliable source, despite the fact that almost all their funding comes from western governments and big business.”
Unaware of this I recently put concerns to Transparency International Australia that they had a potential conflict of interest as they were receiving funding from the government, and that this has lead to them downplaying reports of corruption within the Australian government and giving the government an unrealistically high anti-corruption rating. I warned this was making the public complacent about corruption.
[63] [64] I also raised concerns they were accepting support from several organisations allegedly participating in corruption.
[65]
I also presented them with evidence of bias or rigging of TI’s Defence Anti-corruption Index.
[66] Falsified data indicates the Australian Department of Defence was permitted to manipulate the survey to achieve an “A” rating; This made Australia one of only two countries in the entire world to achieve the top anti-corruption rating. Transparency International UK have refused to explain the falsified data or reveal who supplied it to them (which hardly makes them ‘transparent’). They said despite this the allegedly fraudulent “A” rating will remain in place until 2015.
[67]
Transparency International Australia and UK have both failed to address my concerns.
1)
The study excluded whistleblowers who had been sacked or resigned.[71]They thus excluded the worst cases of retaliation against whistleblowers.
a.
Having excluded them from the study, WWTW then claims
“when bad treatment does occur, it is unlikely to involve a single decisive blow such as a sacking” [72] But how can they claim this, having excluded them from the scope of the study?
b.
The data was then diluted by including less-serious complaints which were not in the public interest, and so not ARC’s
“public interest whistleblowing”[73]
c.
Ludicrously after excluding sacked and resigned whistleblowers from the study, WWTW then claims of the retaliation rate (of the remainder) was only 22%. The true figure is more likely 80%.
[74]
d. Having excluded sacked and resigned whistleblowers, WWTW failed to assess the seriousness of the allegations made, or attempt to correlate that with the treatment of the whistleblower.
e. ARC said WWTW was supposed to “use the experience and perceptions of internal witnesses.” To exclude the worst affected of these is farcical.
f. Having done this, WWTW cannot claim to be a “comprehensive” study.
2) The study ignored Systemic Corruption within the “Partner” Agencies.
a. WWTW did not engage whistleblowers or organisations who had evidence of systemic corruption within the agencies who were official partners of the study.
b. Further whistleblowers who approached WWTW on their own initiative with evidence of systemic corruption were not engaged. WWTW also failed to capitalise on existing research or study major whistleblowing cases already a matter of record which also pointed to systemic corruption.
3) “Partner” Agencies controlled the data.
a.
Agencies had control over the data provided to the study,
[75] even though there is already evidence that agencies manipulate data to conceal their own impropriety.
[76]
b.
For example: I only made my complaint because the Ombudsman promised me whistleblower protection, which they later welched on when it was too late.
[77] I doubt facts like that would be captured that in their data. Likewise that an expert on their legislation told me the Ombudsman had lied to me about their lack of jurisdiction.
[78] I doubt they would record that in their quantitative data either.
4) Quantitative instead of Qualitative
a.
Having noted that quantitative research is of limited value and
“only (qualitative) detailed case studies of more prominent cases will provide meaningful insights into the challenge of achieving better outcomes,” they then go on to do a quantitative study anyway.
[79]
b. They promise they will look at case studies in later research, but without doing case studies first (to ensure they understand the whistleblowing problem), how do they know the surveys are even asking the right questions? For example, “Have you encountered systemic corruption (eg. …)?”
c.
I would argue given the many loopholes in the resulting PID legislation,
[80] they did not in fact understand the whistleblowing problem (or did not want to).
5)
Excluding external whistleblowers.
The study did not include whistleblowers from outside the public service who report corruption within the APS. Since WWTW claims to be a comprehensive study these should have been included, but were not. They are included under PID, but there is a loophole.
[81] The recent case of Defence forging security clearances show how important external whistleblowers are.
[82] That Defence allegedly threatened to charge the whistleblowers with criminal offences if they made the complaint shows the importance of protecting external whistleblowers too.
[83]
6) Conclusions not backed up by researche.g. The study failed to provide any research back up its claim that “only in very rare cases is the nature of the reprisal such that it could meet the legal thresholds required to prove criminal liability on the part of any individual.”
That last claim is dubious: It would be difficult to cover up a whistleblower’s complaint without providing false or misleading information in documentary evidence during the course of an investigation. This would be a breach of
Section 137.1 of the
Criminal Code, punishable by 12 months imprisonment. Doing so in conjunction with other persons with the intention of influencing an investigator or official is a breach of
Section 135.1, punishable by 5 years imprisonment. A public servant who dishonestly causes detriment to another person is guilty of
Abuse of Public Office under
Section 142.2 of the
Criminal Code, also punishable by 5 years imprisonment.
[84]
Dr. Kim Sawyer who holds a PhD in Statistics raises the following questions about WWTW:
[85]
1) Why was the grant for this study not widely advertised and a formal tender process used?
2) What were the selection criteria for selecting this study?
3) What proposal was put forward in terms of the methodology of the study?
4) Why was a cross-sectional study rather than a longitudinal study used?
5) Why were whistleblowers who testified before the Senate inquiries not contacted?
6) Why were there no case studies of individual whistleblowing cases?
7) Why did the study not involve Whistleblowers Australia in some formal way?
“The study has a selectivity bias, because it ignored whistleblowers who had left the public service. And it did not sample with any detail the regulatory response. WWTW certainly has the appearance of credibility (i.e. a large study, findings of motherhood evidence), but it has no findings of the systemic corruption that whistleblowers find, and no finding of regulatory failure which is the main problem.”
Myself and other whistleblowers have also tried to engage the WWTW researchers; some during the study, and (since they purport to be experts in the field who advise the government) some since. We found them uninterested to the point they didn’t even acknowledge us. A colleague of theirs explained they probably didn’t respond because they were only interested in quantitative data.
[86] But really, what does this say if they don’t check the reliability of their data? (Particularly when they are already aware the agencies might be feeding them biased data?
[87])
8.4. Failure to alert the Senate Inquiry to Systemic Corruption within the Partner Agencies
In my case the defence investigator spent 3½ hours yelling at me, denigrated my intelligence, and tried to intimidate me into signing off his report which he knew contained false and misleading information.
[88] I presume he had similarly pressured public servants in other investigations.
I documented breaches by defence complaints unit staff which Defence
[89], the Ombudsman
[90] and the AFP
[91] all failed to act on. Most recently on April 4, I provided this information to the WWTW researchers none of whom responded.
[92] Despite having access to this information my understanding is none of them raised this evidence of this systemic corruption at the Senate hearings (to which they knew I was not invited), nor did they use the evidence I provided them with as proof to support their own publicly-stated concerns that politicians must not be exempted from the bill.
[93]
The anecdotal cases presented in the report appear to contradict the claim that their focus on quantitative data prevented them from engaging actual whistleblowers. In my opinion the anecdotal cases are tame and self-serving:
Take this quote by ‘Manager’ on his relationship with his integrity agency: “I think it’s good but I think we’ve worked fairly hard to make it good. I have certainly developed good working relationships with the [integrity agency] in terms of making sure that we follow our procedures and respond to everything that they put to us in a timely way. We disagree on stuff but I think the fact that we’ve got a reasonably good working relationship works well. We try very hard not to be defensive.” That all sounds very healthy…
Contrast that to this quote by actual whistleblower Monica Bennett-Ryan on Defence’s relationship with the Ombudsman:
“Five of us went to the 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.”[94]
Take this quote by ‘Manager’ on confidentiality: “One of the things I do tell people straight up is that we will protect their confidentiality as much as we can, but as you know, it may come to a point where we can’t progress the complaint unless maybe they will be identified. We spend a lot of time with people to make sure they’re comfortable to go on with the investigation.” Sounds reasonable…
Contrast that to my own experiences with Defence’s complaint unit. Despite my written instructions not to, they breached my confidentiality on the very first day.
[95]They then told many people in the department whom I had never even met and had no quarrel with that I had accused them of corruption too, which I had not.
[96]Defence’s complaints unit not only breached my confidentiality, but they poisoned my relationship with the department beyond repair.
[97]
WWTW acknowledged that stress placed on some victims contributes to marriage breakdowns and their becoming suicidal, but they fail to identify the systemic causes. For example, that public servants who make whistleblower complaints are forced to submit to psychological evaluations by hired guns who characterise them as ‘crazy,’
[98] or the bullying and intimidation that comes from the complaints investigators themselves.
[99] Again, this is hardly information the agencies “partnering” with the study are going to offer on their own accord.
WWTW failed to make findings of systemic corruption that whistleblowers encounter.
[100] For example, that the internal complaints units are themselves corrupt. This is crucial information to the handling of whistleblower complaints and they could have easily studied it by talking to actual whistleblowers. If they had pursued this it would have been apparent to legislators that an external public disclosure agency was necessary, which was the original recommendation in 1994.
[101]
By failing to engage whistleblowers, the WWTW academics have failed to understand the vast gulf between what the law says and what the government really does. Labor’s breaches of the
Model Litigant Policy show how a law that looks good on paper can easily be flagrantly ignored by the government without any penalty to the public officers or ministers responsible.
[102]
Thomas Jefferson said “The execution of the laws is more important than the making of them”
So what is the point of passing new laws to supposedly protect whistleblowers from retaliation, when
the AFP won’t enforce the laws we already have?
[103] [104]‘Systemic corruption is corrupt conduct which undermines a system which is put in place to ensure integrity.’ [105] Isn’t
that the real problem here?
Legislators have drafted the new laws under the false assumption that allowing the whistleblower to ultimately take their story to the media is the escape valve. In fact most whistleblowers find when they approach the media they are not interested in their story.
The media will only run stories if they are fresh; By the time the internal investigations are completed their story is history, not news. Stories must be of popular interest; corruption by politicians is interesting; corruption even by senior public servants isn’t. Investigative stories are expensive and time consuming to prepare; Few producers or editors are prepared to support them. The media are reluctant to cover stories which are potentially defamatory, which whistleblower stories by their very nature are. Even if what they print is true, these stories are expensive to defend. Finally taking a story to the media fixes the problem only 10% of the time.
[106] Once the story has run and the media moves on, abuse against the whistleblower (and usually the problem
[107]) continues.
[108]
Had WWTW engaged whistleblowers they would have learned this. WWTW did not engage Whistleblowers Australia, even though Vice President Dr. Brian Martin is an expert on whistleblowing and defamation law, and is experienced in the difficulties of whistleblowers have in dealing with the media. Dr. Kim Sawyer, a whistleblower with media experience, said
‘I do not understand why so many advocates push for protection in disclosures to the media, because there are too many risks.’ He approached WWTW but they were unresponsive.
[109]
The Public Interest Disclosure Act is founded on the mistaken assumption that allowing whistleblowers to ultimately speak to the media is a solution. If WWTW had engaged whistleblowers and organisations then legislators would have understood that it is not.
8.8. WWTW is not a “comprehensive” study
WWTW purports to be a
“comprehensive” study.
[110] It’s official title is
“Whistleblowing in the Australian Public Sector,” but it would be would be more accurate to call it:
“Whistleblowing only by whistleblowers who were not sacked or resigned and complaints that aren’t really whistleblowing all done without talking to actual whistleblowers and also ignoring evidence repeatedly offered to us of systemic corruption by the agencies funding this report in the Australian Public Sector.”
Having dumped evidence of systemic corruption
[111] on the laps of the WWTW researchers only to be met with complete disinterest,
[112] it seems reasonable to conclude they are well aware of systemic corruption by the agencies, but don’t want to acknowledge it.
It is naïve to believe that if the WWTW researchers did present the government and the partner agencies funding the study with evidence they were corrupt, that their relationship with them would not be harmed.
Dr. AJ Brown is the Project Leader of ‘Whistling While They Work’ and an Executive Director of Transparency International Australia. A colleague of Dr. Brown’s vouched for his personal honesty and so on July 22, 2013 I wrote to him regarding WWTW & TI’s potential conflict of interest:
“They could also make it harder for you to get ARC grants or the cooperation of bodies such as the Ombudsman for future studies. You could also lose access to Ministers. That would of course be poor statesmanship and they may not do it, but the threat is always there and the whole point of threats is to alter behaviour without having to use them.
TI seems to enjoy a much better relationship with the government than other anti-corruption organisations in Australia and perhaps this is why? You might find they will engage you so long as they can use you for positive PR, but if you were to start criticising them you would be frozen out. Having seen how they misuse their power and abuse the courts, and having spoken to others going through similar experiences, they play a very dirty game. If TI were to pull the pin and call a public press conference criticising the government for corruption it's naive to expect there would not be repercussions.”
Dr. Brown promised to get me answers
[113] but he never did, nor did he answer other concerns raised about Transparency International’s potential conflict of interest with the Australian government or the alleged rigging of Transparency International’s Defence Anti-corruption Index.
Dr. Brown’s by-line says “
Professor A. J. Brown is leader of public integrity and anti-corruption research at Griffith University's Centre for Governance and Public Policy, and a director of Transparency International Australia.”[114]
Why would the man who is
“Australia’s leading expert on Whistleblower laws”[115] and the “
leader of public integrity and anti-corruption research” [116] show such a complete disinterest in systemic corruption? The excuse his colleague offered me that he didn’t respond because he is only interested in
‘quantitative data’ just doesn’t hold water.
[117]
Dr. Brown declared the new whistleblowing laws were
“international best practice.” Mark Dreyfus QC who had publicly praised Dr Brown’s assistance in developing the legislation
[118] seized on Dr. Brown’s endorsement to promote the bill.
[119] But the claim is not credible.
Dr. Brown said the new law “follows
international best practice by giving whistleblowers access to the
Fair Work Act regime to get remedies if mistreated by their employer.”
[120] [121] But Fair Work does not allow punitive damages, pure economic losses such as future loss of income, reputational damages, nor compensation for shock, distress, humiliation, pain or suffering.
[122] Thus its remedies are exceptionally weak compared to the
US False Claims Act.
[123]
Further the new laws can hardly be described as
“a long way towards world’s best practice”[124] if they are so full of loopholes they endanger whistleblowers who try and use them.
[125]
In terms of effectiveness, US
False Claims whistleblowing laws have recovered $40B in fraud.
[126] [127] By comparison you as Australian Public Service Commissioner acknowledge that despite 20,000 incidents of serious misconduct in your organisation last year, you do not expect the
Public Interest Disclosure Act to dramatically change the landscape.
[128]
US-style False Claims laws offer punitive damages:
“Punitive damages are a way of punishing the defendant in a civil lawsuit and are based on the theory that the interests of society and the individual harmed can be met by imposing additional damages on the defendant.”[129]
PID only allow compensatory damages to whistleblowers
“to put them back in the position they would have been in.” PID expressly forbids punitive damages.
[130]Without punitive damages, lawyers lack the incentive to take on a whistleblower’s case on contingency. Whistleblowers must instead pay out of their own pockets for lawyers,
[131] and hope the courts later reimburse them.
[132]
Without punitive damages, why
wouldn’t public officials engage in corruption? After all, if burglary only had compensatory damages then someone caught stealing their neighbour’s TV only need return it
“to put them back in the position they would have been in.” Without the threat of a punishment there is, by definition, no deterrent.
[133]
Corrupt public officials needn’t fear criminal prosecution. Linton Besser reported that 919 public servants caught indulging in corruption were allowed to resign to avoid an investigation.
[134]
Although Dr. Brown acknowledges the effectiveness of US-style
Fraud Control laws,
[135] he opposes offering a financial incentive for whistleblowers to report corruption.
[136]
Had WWTW not excluded whistleblowers who were fired or resigned it would have demonstrated the incredible damage done to the point their lives are never again the same. Why on top of that would a whistleblower use the PID to expose themselves and their family to the stress and risk of losing the family home (due to the ‘Vexatious’ loophole) or 2 years jail (due to the ‘Inadequate’ loophole) for the chance they might one day return to “the position they would have been in”? Not to mention risking their marriage and their career?
Had I kept quiet and not made my whistleblower complaint, I could have returned to the military simulation industry where I had a standing job offer from one of the large defence companies. As it was, the defence complaints unit’s mishandling of my complaint made me unemployable.
[137] This is one of the reasons I have decided to emigrate. That, and the realisation the Australian government is so corrupt there is nothing to stop them from doing it again.
[138]
Dr. Brown obviously enjoys a positive working relationship with the Attorney-General Mark Dreyfus QC, so perhaps he cannot understand what it feels like to incur the wrath of senior public officials for nothing more than reporting misconduct to them. Nor do I expect Dr. Brown appreciates the vast amount of time whistleblowing takes; This has cost me many thousands of hours. I resent the time this has robbed me from spending time with my young son. I have been threatened by the AFP, and at times feared for my own safety and that of my family’s.
Had I known that, I would have never made the complaint in the first place.
Yet Dr. Brown’s concern is that someone going through all this might, ultimately, be financially advantaged? It reaffirms Serene Teffaha’s observation that: “The only experts here are actual whistleblowers. Academics funded through Government, hiding behind aging desks, are not authority on qualitative experience.”
Academic Suelette Dreyfus on the other hand proposes a
False Claims scheme where damages awarded to the whistleblower are instead paid into a fund so “
rather than the whistleblower receiving a large cheque (potentially creating the wrong motivation), they would receive free or subsidised legal support via the fund.”[139] So the lawyers get paid ($230-$500 per hour plus I presume a slice of possibly millions of dollars recovered) but the whistleblower gets nothing?
I cannot understand why academia is so quick to second-guess the motives of the whistleblower, but ascribe the purest of motives to the agencies engaged in systemic corruption.
The current crop of whistleblowers report corruption ‘out of the kindness of their heart,’ but I’ve come to accept most people are inherently self-interested and will not take on risk without reward. If US-style False Claims laws resulted in people coming forward to report corruption who would not otherwise do it, I now say “All the more power to them.”
It could recover up to $19B per annum in fraud
[140], where as by the Public Service Commissioner’s own admission the new whistleblowing laws are unlikely to dramatically change the landscape.
The US
False Claims Act is effective. The
Public Interest Disclosure Act is so bad it is unusable. Thus the claim that PID represents world’s best practice is simply not credible.
[141]
10. The case of Allan Kessing
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.”[142]
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,
[143] 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?””[144]
Nor did you tell your audience that following his reports a drug ring (which included corrupt customs officials) was busted
[145], or that a threat to airport security which could have been used to mount a terrorist attack on Australians was closed.
[146] 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,
[147]raided his house twice, and that they allegedly withheld evidence of his innocence at the trial that convicted him
[148] [149], where he was forced to spend his superannuation to pay his legal bills against the Commonwealth.
[150] [151] Mr. Kessing said
“The toll this ordeal has put on my family is immense.”[152]
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.
[153]
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.
11. Failure to uphold APS Values
In your speech you said:
“The Code also requires us not to provide false or misleading information in response to a request that is made for official purposes.”[154]
This is also an offence under
Section 137.1 of the
Criminal Code punishable by 12 months imprisonment, and under
Section 135.1 punishable by 5 years imprisonment
[155] if done in conjunction with another person with the intention of influencing a Commonwealth official.
On November 1, 2011 I provided you with documentary evidence that a public servant within Defence’s Audit Fraud Unit had provided false and misleading information to the Minister for Defence Science, Mr. Warren Snowdon, which Mr. Snowdon in turn provided to another MP.
[156] I would think along with the provision of false and misleading information to the Chief of the Defence Force General David Hurley this is about as serious as it gets.
[157]
Yet your response is that you cannot do anything about this. Given this is a standard of behaviour you have by definition ‘walked past and accepted’, God help us in a time of war.
In your speech you said the Code requires public servants to
“not use insider information improperly for our own benefit or someone else’s benefit.”[158]
This is also an offence under Section 142.2 of the Criminal Code 1995 punishable by up to 5 years imprisonment, and Section 192 of the Crimes Act punishable by up to 10 years imprisonment.
Yet on November 1, 2011 I described to you my whistleblower complaint that public servants within the DSTO have been using their trusted position within the government to unfairly advantage their own business partners, and to steal intellectual property from large and small companies in the private-sector for use by DSTO research scientists to plagiarise.
[159] This is by definition use of “
insider information improperly for our own benefit or someone else’s benefit.”
The Code of Conduct also says “An APS employee must disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment”.
In that letter I also told you that a DSTO employee had solicited confidential information from companies about their products, without revealing the DSTO was developing a rival product which he was personally associated with. When later questioned he lied to officials.
[160]
Yet your response is that you cannot do anything about this.
[161] This is once again a standard of behaviour that you have by definition
‘walked past and accepted’.
You said the Code requires public servants to
“comply with applicable Australian law”[162]
I have bought to your attention breaches by specific public servants of the
Public Service Act 1999,
The Criminal Code Act 1995 (Sections 135.1, 137.1, 142.2, 149.1),
The Crimes Act (Sections 192G, 192D, 192E),
Misfeasance in Public Office (Misconduct), The
Defence Whistleblower Policy and
Legal Services Directions 2005.
[163]
I have told you these laws are not being upheld, but you responded you cannot do anything.
[164] This is once again a standard of behaviour that you have by definition
‘walked past and accepted’.
You would also be aware that public servants have committed numerous breaches of
Legal Services Directions 2005, and those findings have the weight of judicial decisions. You would be aware of this because it was reported in the press.
[165] To my knowledge you have not acted on that, and I am told that these unlawful acts are now continuing into the term of a third Attorney-General.
[166]
I made an APS Code of Conduct complaint to Mr. Dreyfus regarding this on April 4 which he has failed to respond to.
[167] Further, disobedience in the public service appears so bad that when then Attorney-General McClelland promised an Independent MP he would act on this and issued written directions to a named public servant to conduct an investigation, she told me point-blank she wouldn’t do it.
[168]
In your speech you said
“a public official who comes across something that they think is wrong (should) report it internally” because that
“this is consistent with the principle that the purpose of making a disclosure is to fix a perceived problem; and the responsibility rests squarely on the relevant agency to deal directly with the issue at hand.”[169]
What then does this say of the Department of Defence’s Audit Fraud unit? They waited 18 months before starting their investigation, and only did so when the delays were questioned by Independent MPs.
[170] The defence investigator lied in the report, refused to look at evidence and refused to speak to the other witnesses substantiating the thefts from the other companies.
[171] When this was reported to the Inspector General of Defence (who had pre-approved the report)
[172], he declared the matter closed and refused to review it.
[173]
The Inspector General of Defence justified the refusal to look for evidence by claiming
“such a search would be an unreasonable diversion of my resources.”[174] I put to him that given his role – to investigate fraud
[175] – what better use of his resources could there be?
[176] Shortly afterwards the press reported that the Defence Audit Fraud unit were amongst the biggest spenders for food and alcohol, being part of a group than ran up a $389,074 bill on wining and dining.
[177] That group spent more than the Army, Navy and Air Force combined.
[178]
Then instead of doing their own search, the Inspector General of Defence insisted I first bring him the evidence myself.
[179] This was disingenuous because Defence kept everything behind closed doors: They rejected my Freedom of Information request and their business partner would not cooperate.
[180]
So it was ironic then that with the help of a journalist I found out in a couple of hours on Google what Defence’s Audit Fraud unit was unable to find in two years.
[181]
Defence then conceded I had found new evidence
[182] and appointed an Independent Investigator.
[183] The Investigator said
“When I started this case I couldn’t see any similarities between KTS and (DSTO product). Now I can’t see anything they don’t have in common” and
“when they find out about this they are going to shut this whole thing down.”[184] His investigation was then shut down.
[185]
Your definition of a whistleblower is someone who resolves complaints internally. But how can anyone have any faith in internal complaints units under such circumstances given their delays, reluctance to investigate and the poor quality of their investigation?
You are already been aware of this from both media reports and my letters to you, so why do you still insist whistleblowers report through internal complaints units?
That is not the case in Australia where
Section 70 and defamation law prevents it. At Allan Kessing’s trial the Australian courts took it so far as to assert the public had no right to know about the criminal conduct and the threat to public safety the government had failed to act on.
[186]
Chris Merritt at The Australian wrote:
“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.”[187]
In fact Australian citizens’ right to free speech is so limited and so unreliable that if you do try and exercise it by the time you come before the courts you may find it has narrowed even further.
[188]
Recently the Australian courts cleared the way for you to sack Immigration Department employee Michaela Banerji for exercising freedom of speech.
[189] Yet Immigration’s own web site tells prospective citizens to choose Australia because:
“Five fundamental freedoms. 1. Freedom of speech. Australians are free, within the bounds of the law, to say or write what we think privately or publicly, about the government, or about any topic. We do not censor the media and may criticise the government without fear of arrest. …”
Do you intend to amend that? Will you change it to say when public servants speak they may only do so in praise of the government?
[190] Will you tell those that do not fear arrest that they should still fear losing their job? (Loss of livelihood is a powerful threat.) And will you correct it to point out that those who speak about corruption or maladministration should in fact fear arrest?
[191] Will you clarify what directions corporations should issue private-sector contractors operating in an APS environment? Should for example Serco direct its employees not to exercise their free speech rights to criticise the government? Or should corporations take the cue so as to not risk jeopardising future government contracts? If public servants aren’t permitted to take part in political discussion, how can they form their opinions on how to vote?
Unlike Australia, the US Supreme Court has ruled that employees retain their right to freedom of speech. Associate Justice Thurgood Marshall wrote: “Vigilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees’ speech.”
George Washington said: “If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.” The Australian courts have granted you the right to limit your employees’ freedom of speech, even in their personal time, and even anonymously. But that doesn’t mean you have to take them up on it.
Before you tell me
‘If you like America so much, why don’t you move there’ I did start my company in America but moved back to Australia to be close to my family and to offer the ADF first opportunity to use my technology. As it was that turned out to be a terrible mistake; My technology was stolen and my business sabotaged by public servants acting criminally within the Department of Defence.
[192]
The ADF could have had my software immediately to support Operation Catalyst and Slipper, but instead had to wait four years while the government’s business partner incorporated the functionality of my software into their own.
[193] It’s morally reprehensible that the ADF would be denied an operational advantage so DSTO public servants could dishonestly line their pockets and those of their mates while the ADF were fighting two wars overseas.
Australia is corrupt. The APS is systemically corrupt. The government
[194] and the courts
[195] are not protecting the rights of the citizens. It does not protect the rights of businesses.
[196] Businesses are now forced to reveal our confidential information to you, and your lawyers assert the government cannot be held liable for what public servants do with our trade secrets.
[197] While miners and pastoralists are by necessity tied to the land, high-tech businesses such as mine are not. We can head overseas to countries that give us better access to capital, talent and where we will be protected by the rule of law.
Failure to uphold APS Values
Your recent profile by Noel Towell described you as a man of foresight ready to transform the organisation. For example, you can now take action against employees who have “not acted with ‘honesty and integrity’ during the hiring process; PS speak for lying your way into a job.”
But what point is this if when confronted with far more serious crimes and misconduct by eight … now seventeen public officers you decline to take any action whatsoever?
[198]
You obviously have the power to offer the ministers ‘frank and fearless’ advice, but you do not appear to have given it. Indeed, you appear to have contradicted your own minister by denying you had powers to combat corruption which he says you do.
In my opinion this sets a poor example for public servants to follow. I say this because I saw a similar attitude by the Director of Fraud Control Policy and Ethics who told me they had no issue with fraud within the Department of Defence, just so long as they didn’t have to investigate it. And this is from a Director with “Ethics” in their job title!
In my opinion the thoughts you express in your public profile by Mr. Towell are at odds with your statements in your letter to me of December 20, 2012.
I invite other readers to read your letter (attached) and compare them with your recent speech and profile so they may form their own opinions about your commitment to an APS that is ‘open and accountable to the Australian community under the law’ that ‘demonstrates leadership, is trustworthy, and acts with integrity, in all that it does.’
13. Conclusion
Howard Whitton said:
‘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 ICAC has demonstrated that it is very widespread.’[199]
I believe the reason you have been unable to stop corruption within the APS is because you have not tackled the root cause: corruption within the Commonwealth integrity agencies; The AFP, OLSC, The Ombudsman and the internal complaints units themselves.
Since the oversight agencies including the APSC itself have been compromised, the only way to resolve this is with a truth-seeking Royal Commission into systemic corruption within the APS.
Yours Sincerely
Note to any Identity Hackers who see this: That is not my usual signature. :-
Brendan Jones.
Attachments
2013-04-27 Comparison of statements by Public Service Commissioner and the Minister regarding PSA Accountability
References
Correspondence with Ombudsman.pdf
Correspondence with Defence Investigator.zip
2011-02-28 Letter from Defence Science Minister with false & misleading information to Independent MP.pdf
2013-04-04 Letter to The Hon Mark Dreyfus QC MP cc: ‘Whistling While They Work’ Researchers
