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Brendan Jones
Brisbane QLD Australia
Web: http://victimsofdsto.com
E-mail: victimsofdsto@gmail.com
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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]
1. Executive Summary
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
2. Failure of the Public Interest Disclosure Act (new whistleblowing laws)
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]
3. Failure to act on corruption in internal complaints units
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.
4. Failure to take ownership of the corruption problem
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.
7. Failure to consult whistleblowers
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.
8. ‘Whistling While They Work’ is not credible research
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]
8.1. Role of Transparency International
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.
8.2. Criticism of ‘Whistling While they Work’
Greg McMahon of the Whistleblower Action Group did a critique of WWTW which raised concerns including: [68] [69] [70]
1) The study excluded whistleblowers who had been sacked or resigned.[71]
They thus excluded the worst cases of retaliation against whistleblowers.
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]
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.”
8.3. Failure of WWTW to engage whistleblowers
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]
8.5. Self-serving Anecdotes
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]
8.6. Failure to examine Systemic Corruption in the “Partner” Agencies
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?
8.7. Failure to study external disclosures to the media
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.”
8.9. WWTW is itself a victim of Systemic Corruption by the Agencies
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]
9. Dr AJ Brown’s ‘International Best Practice’ claim is not credible
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
11.1. Failure to act on False and Misleading Information
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.
11.2. Failure to act on Misuse of Insider Information
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’.
11.3. Failure to act on breaking the law
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]
11.4. Failure to act on crimes and misconduct within the Defence internal complaints unit
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?
12. Failure to uphold Freedom of Speech
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
Your July 30 Speech: http://www.apsc.gov.au/publications-and-media/speeches/2013/sedgwick300313
Your Profile: http://www.canberratimes.com.au/comment/challenges-in-a-changing-world-20130726-2qpyo.html
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
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
[1] “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” Mr Howard Whitton: “Systemic corruption for me 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.”
[2] The Australian Federal Police
[3] The Attorney-General’s Office of Legal Services Coordination (OLSC) whom is supposed to monitor compliance with the Model Litigant Policy so the Attorney-General may use their lawful power to ensure that an agency does not abuse the civil courts to deny a victim of government access to the civil justice system. [Ref: 2012-05-14 Discrepancies in Answer given by Senator Ludwig on behalf of Attorney-General Roxon in Hansard (Question 1439 on 2012-02-09)]
[4] Speech by Public Service Commissioner Steve Sedgwick, National Portrait Gallery, 2013-07-30: http://www.apsc.gov.au/publications-and-media/speeches/2013/sedgwick300313
[5] “PUBLIC INTEREST DISCLOSURE ACT 2013 (NO. 133, 2013)” http://www.austlii.edu.au/au/legis/cth/num_act/pida2013295/
[6] “Challenges in a changing world”, Noel Towell, Canberra Times, July 27, 2013.
“Stephen Sedgwick is not the type of bloke to get carried away. But the Public Service Commissioner, the man who leads workplace policy for Australia's 168,000 federal bureaucrats, believes sweeping changes to the service's legal framework can transform the organisation. Just don't expect any overnight sensations, the commissioner said this week. After all, it's still the public service. But the commissioner believes that sweeping legislative changes enacted this month can help the massive organisation adapt to the challenges of a changing world and also leave a few bad habits in the past.” http://www.canberratimes.com.au/comment/challenges-in-a-changing-world-20130726-2qpyo.html
[7] “By sampling current employees, the major employee survey data set does not include former employees, such as those who might have observed and reported wrongdoing but have since left the organisation.” “Whistleblowing in the Australian Public Sector: Enhancing the theory and practice of internal witness management in public sector organisations”, Edited by A. J. Brown, ISBN: 9781921536182. http://epress.anu.edu.au?p=8901
[8] Greg McMahon, “Blowing the whistle on the whistleblowing project: Executive summary of a critique of the
Whistling While They Work project”, The Whistle, #62, April 2010, pp. 14-15: “After $1 million in funds and public
servant hours, the project appears to have failed to deliver this primary outcome for its partner organisations”http://www.bmartin.cc/dissent/contacts/au_wba/whistle201004.pdf ARC: $585,000 in direct funds.
[9] “Public servant leakers still face prosecution, despite new whistleblower laws”, Noel Towell, Canberra Times, 2013-08-09: “But Mr Sedgwick said he did not believe the passage of the Public Interest Disclosure Act, which has not yet become law, would dramatically change the landscape. “In many ways the new arrangements will largely replicate or complement existing inquiry and review mechanisms in the APS,” the commissioner said. “Importantly, the expectation remains that, usually, a public official who comes across something that they think is wrong is to report it internally. “An APS employee who sees misconduct in their department, for example, should report it to appropriate members of that department.” The new laws do allow a public servant to make a disclosure to the media but only in limited cases, cited as “emergencies.”” http://www.canberratimes.com.au/national/public-service/public-servant-leakers-still-face-prosecution-despite-new-whistleblower-laws-20130809-2rlxa.html
[10] “You better be careful blowing the whistle — new laws have holes”, Brendan Jones, Jul 30, 2013. 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
[11] “Public service keeps fraud cases private”, 2011-09-24, SMH, Linton Besser,
“A code of silence surrounds graft accusations in Canberra.”
[12] “Federal agencies lack firepower to deal with fraud”, 2011-10-03, Canberra Times, Linton Besser.
“An unknown number of corruption cases lie undiscovered inside the vast Commonwealth bureaucracy”,
[13] “APS Values, Employment Principles and Code of Conduct” http://www.apsc.gov.au/aps-employment-policy-and-advice/aps-values-and-code-of-conduct
[14] 2011-11-01 Letter to MPC and PSC Stephen Sedgwick. 2012-12-13 Letter to PSC Stephen Sedgwick.
[15] 2012-12-20 From PSC Stephen Sedgwick - claims no authority: “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.”
[16] An academic interviewing Defence whistleblowers described ‘internal avenues as a labyrinth of ‘dead ends’ designed to ‘catch whistleblowers’ identify and contain them before they go to the media. They are exactly the opposite of what they claim to be.’
[17] “Govt won't probe new Kessing claims”, AAP, SMH, 2009-09-07, “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
[18] My understanding is that Qualified Privilege allowed Mr. Kessing to lawfully take his concerns to Mr. Albanese.
[19] “Allan Kessing in 'wrongful conviction'”, Chris Merritt, Legal affairs editor, The Australian, March 4, 2011,
“Whistleblower Allan Kessing may have been wrongly convicted after critical information was withheld from his defence lawyers and never presented to the jury. … Professor Wilson said Mr Kessing's consistent argument that he was not responsible for the leak to The Australian "gains enormous credence as revealed by the contents of this letter.”
[20] National Crime Authority (NCA)
[21] Richard Ackland – “Policing a citizen's right to expression” - Australian Financial Review - 9 February 1996 “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.” http://tasmaniantimes.com/index.php?/article/tim2/
[22] “Public servant leakers still face prosecution, despite new whistleblower laws”, Noel Towell, Canberra Times, “According to Mr Sedgwick’s official figures, as many as 20,000 federal public servants had witnessed serious internal misconduct in the latest 12-month reporting period but that less than half of them had made internal reports, usually because they distrusted the official process or they feared reprisal. Of those who reported, 55 per cent said they were left unhappy with the official reaction, but the commissioner said he still believed that internal reporting was the best way to deal with fraud, corruption or misconduct.”http://www.canberratimes.com.au/national/public-service/public-servant-leakers-still-face-prosecution-despite-new-whistleblower-laws-20130809-2rlxa.html
[23] Ibid. … but the commissioner said he still believed that internal reporting was the best way to deal with fraud, corruption or misconduct.”http://www.canberratimes.com.au/national/public-service/public-servant-leakers-still-face-prosecution-despite-new-whistleblower-laws-20130809-2rlxa.html
[24] 2012-12-13 Letter to PSC Stephen Sedgwick. Brendan Jones says: “I also reported crimes by public servants which the AFP had failed to act on, other than to threaten me when I asked them why in nine months they hadn’t done anything. The fact crimes by public servants aren’t being investigated is also relevant to your mission, as breaching the Criminal Code is clearly also an unacceptable APS Value.”
[25] 2012-12-20 From Karin Fisher for PSC Stephen Sedgwick: “Having considered your letter it appears that you have acted appropriately by reporting alleged crimes to the AFP. There is nothing more for you to do in this respect.”
[26] 2012-12-20 From Karin Fisher for PSC Stephen Sedgwick: “Finally, the Commissioner does have an authority to inquire into allegations of misconduct by an Agency Head. … Having looked at your previous contact with this Office I cannot find any allegation by you that the Secretary of the Department of Defence had personally breached the Code of Conduct.””
[27] 2011-07-04 Letter to Dr. Ian Watt, Secretary of Defence “Dear Sir, I understand you have the power to intervene in the following matter which I have been trying to resolve with the department for the last two years ... (Defence investigator) finally presented his findings to me on April 7, 2011. I had expected an apology. Instead (defence investigator) vigorously defended (perpetrator) and wouldn’t admit he made even one single mistake. Further he said even if (perpetrator) was negligent, incompetent or reckless these did not constitute misconduct and so there was no case for him to answer. (Defence investigator’s) report contained major legal, technical and investigative errors. I pointed these out to him, but he refused to reconsider his findings. ... I have since been advised that on investigative matters the Inspector General of Defence is accountable to the CDF, the DMO CEO and the Secretary of Defence. Accordingly I ask that you use whatever powers you have to have my complaint fairly, properly and independently investigated.”
[28] 2011-11-01 Letter to MPC and PSC (58 Pages alleging APS Code of Conduct and criminal breaches)
[29] 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”
[30] 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”
[31] Speech by Public Service Commissioner Steve Sedgwick, National Portrait Gallery, 2013-07-30: After raising this towards the end of your speech, you said the solutions were (i) “to better inform people who’ve made reports about how the report was handled and what the outcome was”, (ii) “timeliness can be a problem, and excessive delays (or insufficient information) can cause frustration” and (iii) “receiving a report that is critical of you or your agency can be personally confronting”.You then reaffirmed that APS employees must not leak, but you failed to mention the elephant in the room: that the complaints were not being investigated properly due to systemic corruption. You didn’t event table the possibility. http://www.apsc.gov.au/publications-and-media/speeches/2013/sedgwick300313
[32] “Public servant leakers still face prosecution, despite new whistleblower laws”, Noel Towell, Canberra Times, “According to Mr Sedgwick’s official figures, as many as 20,000 federal public servants had witnessed serious internal misconduct in the latest 12-month reporting period but that less than half of them had made internal reports, usually because they distrusted the official process or they feared reprisal. Of those who reported, 55 per cent said they were left unhappy with the official reaction, but the commissioner said he still believed that internal reporting was the best way to deal with fraud, corruption or misconduct.”http://www.canberratimes.com.au/national/public-service/public-servant-leakers-still-face-prosecution-despite-new-whistleblower-laws-20130809-2rlxa.html
[33] “Pay the piper, and we may end public fraud, Ben Allen, Partner at Norton Rose, May 7, 2013. SMH.
“If this figure is applied to the Australian government's estimated spending this financial year ($375 billion), it could equate to a loss of almost $19 billion.”
http://www.smh.com.au/national/public-service/pay-the-piper-and-we-may-end-public-fraud-20130503-2iz0o.html Dr. Kim Sawyer, “Lincoln’s Law: An Analysis of an Australian False Claims Act” Conservatively estimates up to $3.85B a year calculated over a 10 year period based on “cumulative fraud recovery over the decade ranges from a low estimate of $300 million to a high of $8.5 billion” and “cumulative deterrence of fraud over the decade ranges from a low estimate of $1 billion to a high exceeding $30 billion.” http://www.bmartin.cc/dissent/documents/Sawyer11.pdf These forecasts also include recoveries of fraud against the Commonwealth in which the APS is not complicit. http://www.smh.com.au/national/public-service/pay-the-piper-and-we-may-end-public-fraud-20130503-2iz0o.html
[34] Enron losses due to fraud: US$40-45B in total
[35] 2011-11-01 Letter to MPC and PSC (58 Pages alleging APS Code of Conduct and criminal breaches. 8 persons)
[36] 2013-04-29 Updated Summary of Complaint alleging APS Code of Conduct and criminal breaches. 17 persons)
[37] 2013-08-.. Personal Communication
[38] The Hon Gary Gray, AO MP Special Minister of State, and Special Minister of State for Public Service and Integrity:
“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
[39] 2012-12-20 From Karin Fisher for PSC Stephen Sedgwick: “You point out, correctly, that, nonetheless, the Commissioner has retained a range of inquiry and evaluation functions. These are largely aimed at checking systems and processes at management level rather that dealing with particular cases about employees. For example, the Commissioner gathers information from agencies, consistent with his functions at sub-sections 41(1)(a) and(b) of the Act, for the purposes of reporting in his annual State of the Service Report. Sub-section 41(1)(d) does give the Commissioner the power to inquire into a broad range of APS matters. However, this function has never been used by the Commissioner to inquire into alleged misconduct by individual APS employees given the framework provided for in sections 15 and 20 of the Act, and recognising that even if the Commissioner did conduct such an inquiry it could not lead to the imposition of any penalty against the employees investigated”
[40] “APS Values, Employment Principles and Code of Conduct” http://www.apsc.gov.au/aps-employment-policy-and-advice/aps-values-and-code-of-conduct
[41] Speech by Public Service Commissioner Steve Sedgwick, National Portrait Gallery, 2013-07-30: “The default assumption is that – unless there are good public interest reasons to the contrary – the business of government will be public and knowable. And our understanding of what constitutes the public interest includes recognition that the ability of Government to function effectively rests to some degree on an ability to keep some matters confidential. As is so often the case, it’s a matter of getting the balance right between these competing considerations.” http://www.apsc.gov.au/publications-and-media/speeches/2013/sedgwick300313
[42] Ibid.
[43] 2011-04-07(11) Letter from B Jones to defence investigator cc: Minister for Defence Stephen Smith: “Your report says I raised concerns about the destruction of evidence, and that this caused your investigation to move so slowly. Why didn’t you just seize the evidence? All you did by introducing delays was give (perpetrator) extra time to destroy the evidence, even inadvertently. … By the time I sent those letters it had been a WHOPPING EIGHTEEN MONTHS since my original complaint and you had still had not interviewed (perpetrator) or seized the evidence.
You knew the Statue of Limitations was about to expire. Did you expect me to sit by and do nothing while it did?
[44] 2009-07-30 Original submission to Ombudsman
[45] 2009-08-11 Submission to Inspector General of Defence under whistleblower provisions as instructed by Ombudsman
[46] 2010-12-09 Phone conversation with Office of Shadow Defence Science Minister Stuart Robert
[47] Media Release by Attorney-General Mark Dreyfus: ‘Whistleblower protection introduced to parliament’, 2013-03-21. “As the Chair of the Committee which recommended this legislation, I am especially pleased to be introducing this bill today. I will be consulting widely with members of Parliament, community groups, experts and public sector representatives to make sure we get the best possible scheme.” (Note he says “experts”, but nothing about “whistleblowers”, in line with the Committee Secretary’s claim my own submission was “not relevant”). http://www.attorneygeneral.gov.au/Mediareleases/Pages/2013/First%20quarter/21March2013-Whistleblowerprotectionintroducedtoparliament.aspx
[48] E-mail May 2, 2013 at 3:39 PM From: Legal and Constitutional, Committee (SEN) <LegCon.Sen@aph.gov.au>
“Dear Mr Jones // It is for the committee – not those who provide material to it – to determine relevance and to make decisions about whether material will be accepted. As previously advised, the committee has considered your material and has determined that it is not relevant to its inquiry and will not be accepted. // Accordingly, I advise that no further correspondence or discussion will be entered into regarding this matter. // Yours sincerely // Committee Secretary”
[49] “You better be careful blowing the whistle — new laws have holes”, Brendan Jones, Jul 30, 2013. 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
[50] Dr Gabrielle Appleby via Twitter: @Gabrielle_J_A 30 Jul: “Good critique of the weaknesses of the new federal #whistleblower legislation http://www.crikey.com.au/2013/07/30/you-better-be-careful-blowing-the-whistle-new-laws-have-holes / … #auslaw #adminlaw” 2:07 PM - 30 Jul 13
[51] “You better be careful blowing the whistle — new laws have holes”, Brendan Jones, Jul 30, 2013.
Mark Dreyfus QC: “The government cannot ‘sit’ on a disclosure indefinitely.”
Brendan Jones: “Which can be extended indefinitely, in 90 day lots: “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/ Note: Rebuttal to Attorney-General’s response appears in the Comments
Speech by Public Service Commissioner Steve Sedgwick, National Portrait Gallery, 2013-07-30: “Protected external disclosure will generally only be available where a number of conditions have been met, including: … the discloser believes on reasonable grounds that the investigation was inadequate or not conducted within the time limit[1]” Footnote (presumably added after the speech): “[1] 90 Days, subject to review and extension” http://www.apsc.gov.au/publications-and-media/speeches/2013/sedgwick300313
[52] Public Interest Disclosure Act 2013 (“PID”) – the new whistleblowing laws.
[53] Peter Roberts, Jane Olsen, A. J. Brown: “Whistling while they work - towards best practice whistleblowing programs in public sector organisations,” 2009.http://www.griffith.edu.au/__data/assets/pdf_file/0007/159199/whistling-july09-full-report.pdf
[54] Stephen Horne, The Public Sector Informant, “The days of hiding in the dark are numbered,” July 2010. “The most substantial piece of research in the world into public sector whistleblowing was conducted here in Australia. The Griffith University-led collaborative national research project Whistling While They Work examined as part of good governance practice and regulatory requirements for the private sector. AS 8004-2003 established whistleblower programs as a fundamental component of corporate governance.”
[55] “Media alert: Launch of Whistling While They Work: A good-practice guide for managing internal reporting of wrongdoing in public sector organisations”, 7 October 2011, http://www.ombudsman.gov.au/media-releases/show/194
[56] “Whistling While They Work: A good-practice guide for managing internal reporting of wrongdoing in public sector organisations.” Peter Roberts, A. J. Brown and Jane Olsen, September 2011, ISBN 9781921862311,
[57] The research was funded through the Australian Research Council, one of the two main funders of scholarly research, as part of the Linkage programme, which requires academics to find “industry partners” that will contribute to the cost of the research, as well as the research itself. In this case the “industry partners” were government oversight agencies & TI. There are however Linkage projects in all disciplines, and these funding arrangements are entirely reasonable if used properly: For example, to provide industry with a genuinely independent factual assessment using academic expertise which industry is lacking. But it would not be proper if industry partners use them to promote their predetermined agenda under the guise it has been independently assessed and endorsed. (e.g. On the CSIRO Wind Farm Report:“Liberal environment spokesman Greg Hunt said “I’ve dealt with the CSIRO for over 30 years on a professional basis and find it staggering that it has put out such a biased report.”” http://www.thecourier.com.au/story/61642/questions-arise-over-csiro-wind-farm-report/ ) The only way to determine if a potential conflict of interest has been exploited is to look at the methodology of the research. As documented in this letter there have been many red flags raised about the manner in which WWTW was conducted (e.g. calling the study “comprehensive” after excluding from it whistleblowers who were sacked or resigned, refusal to acknowledge evidence of systemic corruption, or engage whistleblowers), so there is cause for concern that the research was guided by the oversight agencies’ interests to conceal their own systemic corruption.
[58] “This research was made possible by the Australian Research Council (Linkage Project 0560303) and the project’s partner organisations: Commonwealth - Commonwealth Ombudsman, Australian Public Service Commission
New South Wales - Independent Commission Against Corruption, NSW Ombudsman
Queensland Crime and Misconduct Commission, Queensland Ombudsman, Office of the Public Service Commissioner
Western Australia - Corruption and Crime Commission, Ombudsman Western Australia, Office of the Public Sector Standards Commissioner
Victoria - Ombudsman Victoria
Northern Territory - Commissioner for Public Employment
Australian Capital Territory - Chief Minister’s Department
Non-government partner - Transparency International Australia”
[59] Any discovery of systemic corruption in the treatment of whistleblowers would embarrass these organisations. As documented in my letter of 2013-04-04 to The Hon Mark Dreyfus QC MP cc: ‘Whistling While They Work’ researchers, I allege (i) the APSC is aware of systemic corruption but are not using powers their minister claims they have to stop it, and (ii) the Ombudsman is complicit with systemic corruption and as documented in my correspondence with them, and the experiences of other whistleblowers and victims of abuse who all describe the Ombudsman as ‘useless.’ The Ombudsman was complicit in systemic corruption used to cover up the forging of Defence security clearances: “The security breach Defence tried to hide”, Des Houghton, Courier-Mail, 2012-03-02.
[60] “A. J. Brown is John Kearney Professor of Public Law, Griffith Law School, Griffith University, and project leader of the Whistling While They Work project.He is also a former Senior Investigation Officer with the Commonwealth Ombudsman.” http://epress.anu.edu.au/wp-content/uploads/2011/10/whole2.pdf
[61]”Peter Roberts is Senior Lecturer, Australian Graduate School of Policing, Charles Sturt University, and a former senior executive with the Commonwealth Attorney-General’s Department and National Crime Authority.
[62] Attorney-General’s Department: Breaches of Model Litigant Policy 2011-08-02 “Federal agencies accused of cover-up”, Chris Merritt, The Australian.“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.”http://www.theaustralian.com.au/business/legal-affairs/fed-agencies-accused-of-cover-up-of-breaches/story-e6frg97x-1226113387964
2011-08-12 “McClelland commits to model litigant rules”, Chris Merritt, The Australian
“Federal Attorney-General Robert McClelland has declared that it is unacceptable for federal government agencies to breach the model litigant rules.”http://www.theaustralian.com.au/business/legal-affairs/mcclelland-commits-to-model-litigant-rules/story-e6frg97x-1226113390895
2011-08-12 “McClelland fumes over end to breaches disclosure”, Chris Merritt, The Australian
“It is hard to know who is responsible for ending the practice of disclosing annual statistics on breaches of the government's own legal services directions. Those figures were once published in the annual reports of the Attorney-General's Department and gave a rough guide to whether government agencies were adhering to "model litigant" obligations contained in those directions.” http://www.theaustralian.com.au/business/legal-affairs/mcclelland-fumes-over-end-to-breaches-disclosure/story-e6frg97x-1226113395041
2011-08-19 “Attorney General requires disclosure of breaches to resume,” Chris Merritt, The Australian. “Attorney-General Robert McClelland has reversed a mistake by his department and has required it to resume publishing details of how many government agencies are conducting their legal affairs in ways that breach government rules.”
2012-03-16 “If it’s all above board, why the government secrecy?”, Chris Merritt, The Australian
“Federal model litigant rules are supposed to bind the way the government and its agencies conduct themselves in court. But recent events in the Federal Court have left a strong impression that these rules are window-dressing. They require commonwealth litigants to conduct themselves in court fairly. The federal government and its agencies are not supposed to widen disputes for their tactical advantage. Yet indications have emerged that when the commonwealth really wants to win, it can be just as nasty as the worst overwrought client.” http://www.theaustralian.com.au/business/legal-affairs/if-its-all-above-board-why-the-government-secrecy/story-e6frg97x-1226300882611 2012-04-13 “Gillard Government lashed for ‘ignoring’ breaches of model litigant rules”, Chris Merritt, The Australian
“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.” http://www.theaustralian.com.au/business/legal-affairs/fed-agencies-accused-of-cover-up-of-breaches/story-e6frg97x-1226113387964
2013-04-04 Letter to The Hon Mark Dreyfus QC MP cc: ‘Whistling While They Work’ Researchers documenting allegations of systemic corruption including within the Attorney-General’s OLSC.
[63] 2013-06-09 .. 2013-07-22: Correspondence with TI UK
[64] 2012-12-07, 2013-07-11..24: Correspondence with TI Australia
[65] 2013-07-24: Correspondence with TI Australia
[66] 2013-07-11 To Commonwealth Chief Scientist re corruption & Defence Trade Controls Act cc DVCR Go8, TI.
[67] 2013-06-09 .. 2013-07-22: Correspondence with TI UK
[68] Greg McMahon, “Blowing the whistle on the whistleblowing project: Executive summary of a critique of the
Whistling While They Work project”, The Whistle, #62, April 2010, pp. 14-15: “After $1 million in funds and public
servant hours, the project appears to have failed to deliver this primary outcome for its partner organisations”
[69] SUBMISSION RELATING TO THE PRIVATE MEMBERS BILL ON WHISTLEBLOWER PROTECTION, Whistleblowers Action Group,
[70] DETAILED REVIEW OF THE WHISTLE WHILE THEY WORK PROJECT, Whistleblowers Action Group,
[71] “By sampling current employees, the major employee survey data set does not include former employees, such as those who might have observed and reported wrongdoing but have since left the organisation.” “Whistleblowing in the Australian Public Sector: Enhancing the theory and practice of internal witness management in public sector organisations”, Edited by A. J. Brown, ISBN: 9781921536182. http://epress.anu.edu.au?p=8901
[72] WWTW claims “when bad treatment does occur, it is unlikely to involve a single decisive blow such as a sacking” but by their own admission they had excluded from the study those who “have suffered retrenchment, forced transfer or dismissal.” Further WWTW’s claim are contradicted by the practical experience of Victims of CSIRO who represent ~100 victims. They report every single member who made a whistleblower complaint revealing their identity were sacked, where as every single member who made an anonymous complaint instead were not.
[73] ARC: “Griffith University - LP0560303 Dr AJ Brown; A/Prof RK Wortley; Dr P Mazerolle; Dr RK Smith; Mr CC Wheeler; Dr JS Hocking; Mr GJ Ross; Mr P Roberts; A/Prof PS Latimer Title: Whistling While They Work: Enhancing the Theory and Practice of Internal Witness Management in Public Sector Organisations 2005 : $175,000 2006 : $205,000 2007 : $205,000 Category: 3904 - LAW ENFORCEMENT APA(I) Award(s): 2 Partner Organisation(s)WA Parliamentary Commissioner for Administrative Investigations (Ombudsman) NT Office of the Commissioner for Public Employment ACT Chief Minister's Department Transparency International Australia Commonwealth Ombudsman Australian Public Service Commission Qld Crime and Misconduct Commission Queensland Ombudsman NSW Independent Commission Against Corruption NSW Ombudsman WA Corruption and Crime Commission WA Office of the Public Sector Standards Administering Institution: Griffith University Summary: The protection of whistleblowers and other internal witnesses to corruption, misconduct and maladministration is a great unsolved problem in public sector governance. Involving 11 integrity institutions, this first national study of internal witness management will describe and compare organisational experience under varying public interest disclosure regimes across the Australian public sector. By identifying and promoting current best practice in workplace responses to public interest whistleblowing, the project will use the experience and perceptions of internal witnesses and first-and second-level managers to identify more routine strategies for preventing, reducing and addressing reprisals and other whistleblowing-related conflicts.”
[74] Greg McMahon, “Blowing the whistle on the whistleblowing project: Executive summary of a critique of the
Whistling While They Work project”, The Whistle, #62, April 2010, pp. 14-15: “The press releases advertised retaliation rates as low as 22%, where these figures were gained from self-nominating whistle-blowers. The 22% figure was selected when sections of the study for known whistleblowers suggested that the retaliation rates might be 66%. The 66% figure, if adjusted for a likely percentage of terminated whistleblowers, might have been 80%”
[75] “While participating agencies were requested to draw random, representative samples, whether or not they really did so was not within the researchers’ control” “Whistleblowing in the Australian Public Sector: Enhancing the theory and practice of internal witness management in public sector organisations”, Edited by A. J. Brown, ISBN: 9781921536182. http://epress.anu.edu.au?p=8901
[76] The OLSC’s manipulation on Model Litigant Policy statistics is a prime example of this.
[77] 2012-05-13 Letter to Ombudsman.
[78] 2012-05-18 Letter to Ombudsman.
[79] “The bulk of survey results presented are quantitative, supplemented in several places by additional qualitative accounts provided by survey respondents as free text. It can be argued that quantitative research can only ever be of limited value in understanding the true nature and true lessons of any particular whistleblowing incident, given the complexity of all such incidents. In particular, it has been argued that only detailed case studies of more prominent cases will provide meaningful insights into the challenge of achieving better outcomes. Qualitative data can indeed play a useful role, and interviews with whistleblowers, case-handlers and managers from the case study agencies are providing the basis for further analysis in the second report. Here, however, quantitative research methods are used to paint a larger picture across thousands of individual reporting incidents, in order to help shift attention from whistleblowers as individuals to the performance of organisations in response to whistleblowing as a process. Whatever their limitations, the data reported in this book provide a new and different basis for understanding how whistleblowing is being managed in the Australian public sector.”
“Whistleblowing in the Australian Public Sector: Enhancing the theory and practice of internal witness management in public sector organisations”, Edited by A. J. Brown, ISBN: 9781921536182. http://epress.anu.edu.au?p=8901
[80] “You better be careful blowing the whistle — new laws have holes”, Brendan Jones, Jul 30, 2013. 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
[81] “PUBLIC INTEREST DISCLOSURE ACT 2013 (NO. 133, 2013)” “Section 70: Individuals taken to be public officials”
http://www.austlii.edu.au/au/legis/cth/num_act/pida2013295/ This allows an individual who is not a public official to be classified as one for the purposes of the Act. But the loophole here is that the authorised officer can refuse. A naïve person would expect them to only refuse if they have a valid reason. However a whistleblower who has experienced systemic corruption will tell you a corrupt internal complaints unit will use that digression to refuse without good reason. Since the individual would then not be protected under the act, the agency is free to retaliate against them. This is, once again, why the WWTW researchers should have engaged whistleblowers who have experienced systemic corruption.
[82] “The security breach Defence tried to hide”, Des Houghton, The Courier-Mail, March 03, 2012.
[83] If the WWTW researchers were not aware of these allegations, then that only emphasises the importance of talking to actual whistleblowers if you want to understand the whistleblowing problem.
[85] 2013-08-… E-mail from Dr. Kim Sawyer
[86] E-mail 2013-07-…: “they are academic researchers, doing quant data gathering not qualitative so prob didn’t respond for that reason.”
[87] “While participating agencies were requested to draw random, representative samples, whether or not they really did so was not within the researchers’ control” “Whistleblowing in the Australian Public Sector: Enhancing the theory and practice of internal witness management in public sector organisations”, Edited by A. J. Brown, ISBN: 9781921536182. http://epress.anu.edu.au?p=8901
[88] 2011-04-07(11) Letter to defence investigator cc: Minister for Defence Stephen Smith
[89] 2011-08-04 From Senator John Hogg following a representation to Minister for Defence Science Warren Snowdon: “I have been advised that your only course of action is litigation, as this case is outside the scope of a review.”
[90] 2011-07-08 From Ombudsman saying there is nothing they can do
[91] 2011-08-22 AFP Crime Report (was not responded to)
[92] 2013-04-04 Letter to The Hon Mark Dreyfus QC MP cc: ‘Whistling While They Work’ Researchers
[93] “Labor’s whistleblower bill just window dressing without change”, Matthew Knott, 2013-03-26.
“Brown’s biggest beef is that politicians — including the Prime Minister, ministers and the Speaker of the House of Reps — are not counted as “public officials” under the bill despite the power they wield.”
“Dreyfus has work to do to get whistleblower protection right”, A.J. Brown, The Australian, 2013-05-24
“It's also vital that these tests apply equally across all public agencies, even Defence, security and intelligence - and that special exemptions should apply only if the information's release would actually pose a threat to valid security interests.” http://www.theaustralian.com.au/business/legal-affairs/dreyfus-has-work-to-do-to-get-whistleblower-protection-right/story-e6frg97x-1226649532404
[94] “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
[95] 2009-08-11 Letter to Inspector General of Defence
[96] 2011-04-07(11) Brendan Jones documents flaws in Investigative Report
[97] 2011-08-16(17) Submission to The Review of the Management of Incidents and Complaints in Defence. Discussing breaches of the existing Defence Whistleblower Policy PERS 45-5 (20 Pages) (No Reply) This submission was one of the reviews called by Defence Minister Stephen Smith:
Review into the “Management of Complaints It is essential that the ADF and Defence promotes and enforces the highest standards of behaviour and creates an environment where complaints can be aired and appropriately addressed. The independent Inspector General of the Australian Defence Force, (…), is conducting a review of the management of incidents and complaints in Defence with specific reference to the treatment of victims, transparency of processes and the jurisdictional interface between military and civil law, which may lead to untimely decision making processes.”
http://www.defence.gov.au/minister/Smithtpl.cfm?CurrentId=11765 … but my submission was never used, as I explained in this letter: 2013-04-04 Letter to The Hon Mark Dreyfus QC MP cc: ‘Whistling While They Work’ Researchers: “I reported the mishandling of my Whistleblower complaint to Mr. Smith’s Review of the Management of Incidents and Complaints in Defence. However when Inspector General of Defence (…) found out, he sent the investigator who lied in the report chasing my submission and told me it was going to be rejected for being outside the Terms of Reference. When it turned out it was in fact well within the terms of reference, the Inspector General of the ADF who was in charge of the review allowed the terms to be changed retrospectively to exclude my submission, and misrepresented it in the anonymous summaries so it did not to draw attention the criminality and misconduct that I had reported in the (defence internal complaints unit); the very people responsible for investigating Whistleblower complaints!”
[98] “The tax office, ‘hired assassins’ and how to gag dissent”, Chris Seage, Feb 05, 2013
“The nation’s tax office has been accused of hiring psychiatrists to diagnose and even coerce complainants during legal disputes.”http://www.crikey.com.au/2013/02/05/the-tax-office-hired-assassins-and-how-to-gag-dissent/
[99] See 97.
[100] See 68: “The project has simply failed to address the forms of systemic wrong-doing ... These circumstances of systemic wrongdoing thus should have been a part of any comprehensive study of whistleblowing in Australia.”
[101] You better be careful blowing the whistle — new laws have holes”, Brendan Jones, Jul 30, 2013.
Dr. Kim Sawyer: “The main problem with the legislation is that the Commonwealth Ombudsman is the authority designated to receive and investigate public disclosures, contrary to the recommendation of the 1994 Senate Select Committee to establish a Public Interest Disclosure Agency.”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
[102] “Fed agencies accused of cover-up of breaches”, Chris Merritt, Legal Affairs editor, The Australian, August 12, 2011, “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.”http://www.theaustralian.com.au/business/legal-affairs/fed-agencies-accused-of-cover-up-of-breaches/story-e6frg97x-1226113387964
[103] 2013-04-04 Letter to The Hon Mark Dreyfus QC MP cc: ‘Whistling While They Work’ Researchers
[104] “Public service keeps fraud cases private”, 2011-09-24, SMH, Linton Besser,
“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.” http://www.smh.com.au/national/public-service-keeps-fraud-cases-private-20110923-1kpdr.html
[105] Systemic Corruption: “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”
Mr Howard Whitton: “Systemic corruption for me 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.”http://www.aph.gov.au/parliamentary_business/committees/senate_committees?url=@JointHansard/J13688.pdf
[106] Wahl-Jorgensen, K., and Hunt, J. (2012). Journalism as a watchdog and the possibilities for structural critique: A case study of coverage of whistleblowing. Journalism, 13(4), 399-416. “When a whistleblower decides to pursue the external route, they suggest, only one in ten cases is typically solved, and there are frequently significant negative percussions for the whistleblower (van Es and Smit, 2003: 144).” http://orca.cf.ac.uk/18264/
[107] “One man's cry for freedom disappears into a black pit”, Michael West, SMH, May 5, 2012.
“Over the past nine years, 800 million people have been born into the world, YouTube and Facebook were invented and the Iraq War passed into history, but Will Matthews, an actuary from East Brighton in Melbourne, is still waiting for his freedom-of-information request to be processed. ... Matthews lodged his fateful request with the corporate regulator in October 2003. By 2007 he found himself in a legal showdown more redolent of the High Court than the Administrative Appeals Tribunal. The AAT is the place where one goes when one has exhausted every other avenue.”
http://www.smh.com.au/business/one-mans-cry-for-freedom-disappears-into-a-black-pit-20120504-1y441.html You would expect after Michael’s story broke the minister kicked some heads and Mr. Matthews got his request. Unfortunately I am informed that Mr. Matthews is, in fact, still battling it out before the AAT…
[108] In the case of Allan Kessing the media has continued to pursue the story and support Allan Kessing as best they can, including fund raising to help his ongoing legal fees, but faced with an unresponsive government and a lack of popular interest from the Australian public they have been unable to protect him. “Kessing's case highlights the media's ethics”, February 27, 2009, Richard Ackland.
[109] E-mail to B Jones from Dr. Kim Sawyer 2013-08-20: “My first (and only) meeting with (project leader of the Whistling While They Work project ) AJ (Brown) was in Adelaide in 2005 at the Conference of WBA. I had never heard of him before that. After all, he had not written anything about whistleblowing to my knowledge. And he wasn't around when the first two Senate inquiries happened. I introduced myself to him because he was a speaker as I recall (as I was). I emailed him at some point, but never received a response.”
[110] “Griffith University is proud to have led the comprehensive Australian Research Council project, Whistling While They Work, which has informed the five years of deliberation over this vital accountability reform,” https://app.griffith.edu.au/news/2013/03/25/law-expert-welcomes-whistleblowing-bill/
[111] “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”
Mr Howard Whitton: “Systemic corruption for me 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.”http://www.aph.gov.au/parliamentary_business/committees/senate_committees?url=@JointHansard/J13688.pdf
[112] 2012-04-04, 2012-04-26: E-mailed all WWTW researchers with evidence of systemic corruption against whistleblowers. Not a single one acknowledged let alone responded. 2012-05-02: E-mailed one WWTW researcher telling them the Senate Committee had refused to accept my submission. Said I had evidence proving politicians should not be exempt. One word response: “Thanks”. No further contact. My understanding is the evidence was never used. Has ceased responding to my e-mails.
[113] E-mail from AJ Brown Jul 19, 2013: “I'm happy to get a better response for you out of my colleagues at TI Australia... I'm not sure why they would not be responding. Can you reforward exactly the email you were expecting a response to? And the letter in December? However bear in mind that we do not have an individual case handling capacity so we get a lot of approaches from people alleging corruption, which currently we can only refer to authorities or media, and cannot respond to directly or in detail, or take up. ”
E-mail to B Jones to AJ Brown Jul 22, 2013: “Presumably people who approach TI for help have already tried the authorities and media, so referring the matter back to those, particularly without any follow up, won't accomplish anything. That's how the authorities cover up corruption: They ignore it until peoplereporting it give up and go away. That makes these precisely the complaints TI should be paying attention to. I never received a response from TI; If you don't respond to people who approach you for help, they will think you're unconcerned and that will reflect badly on TI's reputation.”
[114] “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.”
[115] “Law expert welcomes whistleblowing bill. Australia’s leading whistleblowing law expert has welcomed the introduction by the Federal Government of its ‘long overdue’ whistleblower protection legislation, the Public Interest Disclosure Bill 2013. // Griffith University professor of public policy and law, A J Brown, said that the Bill’s introduction brought the Government one step closer to fulfilling its promise of the world’s ‘best practice’ whistleblower protection for federal public servants who speak up about wrongdoing.” https://app.griffith.edu.au/news/2013/03/25/law-expert-welcomes-whistleblowing-bill/
[116] “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.”
[117] E-mail 2013-07-…: “they are academic researchers, doing quant data gathering not qualitative so prob didn’t respond for that reason.” Of course I took my concerns to Dr. Brown about their lack of independence, but he failed to answer my questions and has ceased corresponding with me.
[118] ‘Whistleblower Laws Passed’, 26 June 2013, Attorney-General’s office, “I would particularly like to acknowledge the assistance of Dr A. J. Brown in the development of the legislation,” Mr Dreyfus said.” http://www.attorneygeneral.gov.au/Mediareleases/Pages/2013/Second%20quarter/26June2013-Whistleblowerlawspassed.aspx
[119] “You better be careful blowing the whistle — new laws have holes”, Brendan Jones, Jul 30, 2013. “UPDATE. Attorney-General Mark Dreyfus issued the following statement to Crikey in relation to this story: … The Public Interest Disclosure Act provides a clear set of rules for agencies to respond to allegations of wrongdoing made by current and former public officials, and strengthens protections against victimisation and discrimination for those speaking out, including what Professor A.J. Brown, a leading expert on whistleblower laws, has called ‘international best practice’ in giving whistleblowers recourse through the Fair Work Act to seek remedies against their employer.” 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
[120] “Whistleblowing Bill a historic step”, Stephen O'Grady, June 19, 2013, “Australia’s first national whistleblower protection law takes the country a long way towards world’s best practice under extensive amendments introduced today by the Gillard Government to its Public Interest Disclosure Bill 2013, according to Australia’s top whistleblowing law expert. ... “The Bill also follows international best practice by giving whistleblowers access to the Fair Work Act regime to get remedies if mistreated by their employer – the first time whistleblower protection has been embedded in Australian workplace law.”http://app.griffith.edu.au/news/2013/06/19/whistleblowing-bill-a-historic-step/
[121] “Whistleblower laws give historic protections”, 10 Jul 2013, “Mr Peter Roberts, Senior Lecturer in the Australian Graduate School of Policing Studies and Security at CSU, said the passage of the laws were an important part of Australia’s international obligations to deal with corruption in both the public and private sectors. ... “The Act follows international best practice by giving whistleblowers access to the Fair Work Act regime to get remedies if mistreated by their employer, which is the first time whistleblower protection has been embedded in Australian workplace law,” he said.http://news.csu.edu.au/director/latestnews/Charles%20Sturt%20University/csu_research.cfm? itemID=C18FD88EC2CBB073E0DDAA4FB0CAB97C
[122] FAIR WORK ACT 2009 (NO. 28, 2009) - SECT 392: Remedy—compensation http://www.austlii.edu.au/au/legis/cth/num_act/fwa2009114/s392.html Serene Teffaha: “As to resorting to the Fair Work Act, well I already did that prior to PIDL, and found the limitations as to damages awards i.e. No recovery for punitive damages and pure economic losses such as future loss of income, a most disabling and limiting factor. That was the reason I upgraded to the common law action of misfeasance in public office, and obviously found it to be a far more successful claim.” “You better be careful blowing the whistle — new laws have holes”,Brendan Jones, Jul 30, 2013. 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
[123] Dr. Kim Sawyer: “The second problem with the (the Public Interest Disclosure Act) is that the protections offered to whistleblowers are very weak compared to legislation overseas. In the US False Claims Act, for example, “Any employee who is discriminated against in the terms and conditions of employment by their employer because of a False Claims action shall be entitled to all relief necessary, which includes reinstatement with the same seniority status such employee would have had without the discrimination, twice the amount of back pay and compensation for any special damages sustained including litigation costs and attorneys’ fees. Whistleblowers are further entitled to 15-25% of the fraud recovered.” 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
[124] “Whistleblowing Bill a historic step”, Stephen O'Grady, June 19, 2013, “Australia’s first national whistleblower protection law takes the country a long way towards world’s best practice under extensive amendments introduced today by the Gillard Government to its Public Interest Disclosure Bill 2013, according to Australia’s top whistleblowing law expert.” http://app.griffith.edu.au/news/2013/06/19/whistleblowing-bill-a-historic-step/
[125] “You better be careful blowing the whistle — new laws have holes”, Brendan Jones, Jul 30, 2013.
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
[126] “Since 1987, False Claims Act lawsuits have returned over $40 billion to federal and state Governments. Of this sum, over $31 billion has been recovered to the federal government as a consequence of civil settlements and judgments. An additional $4 billion has been returned to the states as a consequence of False Claims Act-initiated Medicaid settlements, and an additional $5 billion has been collected by the federal government in criminal fines associated with False Claims Act-initiated actions.” (US) Taxpayers against Fraud Education Fund. http://www.taf.org/fraud-cases
[127] “Pay the piper, and we may end public fraud, Ben Allen, Partner at Norton Rose, May 7, 2013. SMH.
http://www.smh.com.au/national/public-service/pay-the-piper-and-we-may-end-public-fraud-20130503-2iz0o.html “Push to give whistleblowers a cut”, Ruth Williams and Ben Butler, SMH, June 5, 2013.
“Fraud 'spotters fees' could save billions”, Noel Towell & Markus Mannheim, The Age, May 7, 2013, Canberra Times,
http://www.canberratimes.com.au/act-news/fraud-spotters-fees-could-save-billions-20130506-2j3xk.html Dr. Kim Sawyer, “Lincoln’s Law: An Analysis of an Australian False Claims Act”, 2011. http://www.bmartin.cc/dissent/documents/Sawyer11.pdf
Dr. Kim Sawyer, “The convergence towards Lincoln’s Law”, 2013. http://www.bmartin.cc/dissent/documents
[128] See 9.
[130] Section 3 of PIDL (Public Interest Disclosure Legislation) states that the Act does NOT make the Crown liable for pecuniary damages or prosecution.
[131] Although Allan Kessing found a pro bono barrister, he could not find a pro bono solicitor to support the barrister: “… I was advised that a barrister had been found who would act pro bono for me and met with him in his chambers. He agreed to take on the case without charge and on the second meeting he introduced me to a solicitor whom he said he needed to assist. I would be required to pay his costs and I agreed. After four years, three barristers and over $70,000 wasted I am a convicted felon.” http://www.crikey.com.au/2009/09/14/allan-kessing-my-side-of-the-story/
[132] “You better be careful blowing the whistle — new laws have holes”, Brendan Jones, Jul 30, 2013. Mark Dreyfus QC: “A whistleblower who seeks redress through the courts will not be liable for the costs of the agency or department unless the proceedings are vexatious, without reasonable cause or unreasonably cause the other party to incur costs. However, a court can still order that the agency or department pay the costs of the whistleblower, if it is unsuccessful in defending its claim.”
Brendan Jones: “There has been a vigorous debate in Queensland where the CMC whistleblowers face criminal charges for making “vexatious” complaints. Fitzgerald Inquiry whistleblower Nigel Powell said of the CMC changes: “You will have an official body saying, ‘you better be pretty sure of what you got, because if we find you are vexatious and you don’t have a firm basis for what you are saying, then you could be prosecuted’,” … “Now, what was I saying then – had I actually seen corruption take place? No. “Had I had actual evidence of money crossing hands? No. I had my suspicions, which no longer sounds like it would be enough to make a complaint.”
Under the PID the whistleblower won’t face criminal charges, but they will still face a costs order that could bankrupt them. Whistleblowers get nothing out of making a complaint. In return they could lose the family home. Why should they take that risk? // The government’s lawyers claimed my complaint was vexatious, and other whistleblowers said they were accused of the same thing. It appears to be standard operating procedure for government lawyers.”http://www.crikey.com.au/2013/07/30/you-better-be-careful-blowing-the-whistle-new-laws-have-holes/
[133] For this reason burglary is a crime: ‘an action or omission so horrendous it is an offence against society.’
[134] “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
[135] “Fraud 'spotters fees' could save billions”, Noel Towell & Markus Mannheim, 2013-05-07, Canberra Times, “Professor A. J. Brown of Griffith University's Centre for Governance and Public Policy said he, too, would like to see false claims laws in Australia, but warned they would not be a ''cure-all''. ''This has got real potential,'' he said. ''In articles comparing our laws with US laws, I've predicted that we would go down this road sooner or later as part of our law reform.”http://www.canberratimes.com.au/act-news/fraud-spotters-fees-could-save-billions-20130506-2j3xk.html
[136] “Public Sector Whistleblowers,” 2008-12-16, Radio National AJ Brown: “Although that's sort of got all sorts of potential, and it's been very effective in some ways in the US, I mean the US is also a much more litigious society, and there are people in law forms who basically base their entire existence and make all their money on cashing in on potential to claim some of that percentage. And I think... my own personal view is that in the Australian tradition of the public service and public accountability, in fact there are plenty of incentives of people to report and most of the time people do it simply because they're good public servants and they'd want problems addressed. And in fact offering rewards for that is something that isn't necessarily going to encourage any more reporting than should occur. Potentially sends some bad messages in terms of encouraging reports that otherwise wouldn't occur than being made for pecuniary motives.”
Damien Carrick: “But does it matter what the motivation is, if you've rooted out the corruption, you've rooted out the maladministration?”
AJ Brown: “Well I don't think that there’s a very high proportion of cases that people would be prepared to report because they were going to get some money out of it that they wouldn't be prepared to report for no money if they thought that it was going to be dealt with properly and that they were going to be supported and then able to get on with their career.” http://www.abc.net.au/radionational/programs/lawreport/public-sector-whistleblowers/3173744
[137] See 97.
[138] 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 http://victimsofdsto.com/online
[139] Keeping us honest: protecting whistleblowers. Suelette Dreyfus. The Conversation. April 2, 2013.
“However, the attorney-general has the opportunity to not only raise the bill to their standard, but to take the new bill a step further still. This could be achieved by providing financial support for the whistleblower. In Britain, often held up as being a zenith of whistleblowing legislation, the high cost of legal defense has become a point of failure.
The new Australian bill could remedy this by a creating a defence fund specifically for whistleblower cases in the public interest. It could be self-funding by taking a percentage of any savings to the public purse realised as a result of whistleblowing. Such a scheme would be a public interest adaption of the US qui tam legal remedies. Rather than the whistleblower receiving a large cheque (potentially creating the wrong motivation), they would receive free or subsidised legal support via the fund.” http://theconversation.com/keeping-us-honest-protecting-whistleblowers-13131
[140] See 33.
[141] You better be careful blowing the whistle — new laws have holes”, Brendan Jones, Jul 30, 2013.
Dr. Kim Sawyer: “The second problem with the legislation is that the protections offered to whistleblowers are very weak compared to legislation overseas.”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
[142] Speech by Public Service Commissioner Steve Sedgwick, National Portrait Gallery, 2013-07-30: “In recent years in respect of the APS, for example, the media extensively reported on the material leaked by Mr. Alan Kessing concerning security operations in the Australian Customs and Border Protection Service. ... failure to comply with regulation 2.1 can invoke section 70 of the Crimes Act – the provision under which Mr. Kessing was successfully prosecuted.”http://www.apsc.gov.au/publications-and-media/speeches/2013/sedgwick300313
[143] “Labor ignored whistleblower on airport security flaws”, Chris Merritt, Legal affairs editor, The Australian, September 07, 2009.
[144] “Whistleblower Allan Kessing 'vindicated' by airport Customs raid”, The Telegraph, December 21, 2012,
“A Whistleblower convicted of leaking reports about Customs operations at Sydney airport is questioning why it has taken years to act on security flaws. … 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.news.com.au/national-news/nsw-act/whistleblower-allan-kessing-vindicated-by-airport-customs-raid/story-fndo4bst-1226541726529
[145] “Whistleblower Allan Kessing 'vindicated' by airport Customs raid”, The Daily Telegraph, December 21, 2012.
“It emerged on Thursday that two customs officers and five members of the public have been charged following a joint investigation by law enforcement agencies into corruption and drug smuggling at Sydney airport.” http://www.dailytelegraph.com.au/whistleblower-allan-kessing-vindicated-by-airport-customs-raid/story-e6freuy9-1226541726529
[146] “Blowing the whistle on hypocrisy”, Janet Albrechtsen, The Australian, 20013-04-13,
“Thanks to Mr Kessing, a former Customs officer, the federal Government ordered a major review of airport safety. That review, by British aviation security expert, Sir John Wheeler confirmed that policing at our major airports was “often inadequate and dysfunctional”. His report recommended co-ordination between state and federal police, special police commanders to combat terrorism and organised crime at airports, a more rigorous system for issuing Aviation Security Identification Cards to airport employees and tougher filters to rout out those with criminal convictions. The Howard Government responded promptly, accepting all the recommendations under a $200 million package to better protect our airports from criminals and terrorists. Good news for all of us.”http://blogs.theaustralian.news.com.au/janetalbrechtsen/index.php/theaustralian/comments/blowing_the_whistle_on_hypocrisy
[147] Senate Standing Committee On Legal And Constitutional affairs Australian Federal Police, Question No.182, “The Australian Federal Police investigation has spent a total of $258,675 as at 30 June 2009. There was no cost for specialist surveillance skills or telephone intercepts as they were not required in this case.”
The latter claim appears to be contradicted by Allan Kessing who said “They were tapping my phones, they stated and they produced records to show they were tapping my computer as well. At the trial, they produced something like 400 pages of my internet addresses.” SBS Insight Program, ‘Strictly Confidential Information: Secrecy and Government’, 2007-09-27.
[148] “AFP ‘withheld key whistleblower evidence’ in Kessing case”, Chris Merritt, The Australian, August 19, 2011. “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
[149] “Inquiry needed into federal police's shoddy handling of Allan Kessing case.” Chris Merritt , The Australian, March 25, 2011 “The irregularities that have emerged in the prosecution of whistleblower Allan Kessing demand an inquiry. A pardon for Kessing is no longer sufficient. That inquiry needs to focus on the appalling manner in which this case has been handled by the Australian Federal Police.” http://www.theaustralian.com.au/business/legal-affairs/inquiry-needed-into-federal-polices-shoddy-handling-of-allan-kessing-case/story-e6frg97x-1226027671954
[150] “Remember Allan Kessing? He’s off to the High Court.” Margaret Simons, Jan 27, 2009.
“Instead he’s going broke, having spent almost all his superannuation on his defence.” ... “’I have been advised that the Barrister requires payment of $13,200 21 days in advance of conducting this matter. Please note that this is only to cover arguing the case for Special Leave to Appeal, not the cost of conducting the Appeal, should permission be granted to proceed. I intend to fund this cost but it is the end of my means. In total this case has cost me, apart from almost four years of retirement, nearly my entire Superannuation payment of $72K.’” http://blogs.crikey.com.au/contentmakers/2009/01/27/remember-allan-kessing-hes-off-to-the-high-court
[152] “Govt won't probe new Kessing claims”, AAP, SMH, 2009-09-07, “"The toll this ordeal has put on my family is immense," he said. "It cost me my entire superannuation."” http://news.smh.com.au/breaking-news-national/govt-wont-probe-new-kessing-claims-20090907-fd8p.html
[153] CRIMES ACT 1914 - SECT 70 - Disclosure of information by Commonwealth officers
(1) A person who, being a Commonwealth officer, publishes or communicates, except to some person to whom he or she is authorized to publish or communicate it, any fact or document which comes to his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer, and which it is his or her duty not to disclose, shall be guilty of an offence.
(2) A person who, having been a Commonwealth officer, publishes or communicates, without lawful authority or excuse (proof whereof shall lie upon him or her), any fact or document which came to his or her knowledge, or into his or her possession, by virtue of having been a Commonwealth officer, and which, at the time when he or she ceased to be a Commonwealth officer, it was his or her duty not to disclose, shall be guilty of an offence.
Penalty: Imprisonment for 2 years.
[154] Speech by Public Service Commissioner Steve Sedgwick, National Portrait Gallery, 2013-07-30: http://www.apsc.gov.au/publications-and-media/speeches/2013/sedgwick300313
[155] 2011-11-01 Letter to MPC and PSC: At the time of this letter this was punishable by 10 years imprisonment. (pp. 29)
[156] 2011-11-01 Letter to MPC and PSC
[157] 2012-08-29 Synopsis of Complaint provided to Defence Science Minister Warren Snowdon by Independent MP
[158] Speech by Public Service Commissioner Steve Sedgwick, National Portrait Gallery, 2013-07-30: “Public interest disclosure versus leaking: whistleblowers or data thieves.”| http://www.apsc.gov.au/publications-and-media/speeches/2013/sedgwick300313
[159] 2011-11-01 Letter to MPC and PSC
[160] 2011-04-07 Investigative Report 2011-04-07(11) Brendan Jones documents flaws in Investigative Report 2011-06-07 Inspector General of Defence refuses to review Investigative Report 2011-06-27 Brendan Jones documents further flaws in Investigative Report 2011-11-01 Letter to MPC and PSC
[161] 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”
[162] Speech by Public Service Commissioner Steve Sedgwick, National Portrait Gallery, 2013-07-30: “Public interest disclosure versus leaking: whistleblowers or data thieves.”| http://www.apsc.gov.au/publications-and-media/speeches/2013/sedgwick300313
[163] 2011-11-01 Letter to MPC and PSC
[164] 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”
[165] “Gillard Government lashed for ‘ignoring’ breaches of Model Litigant rules”, Chris Merritt, The Australian, 2012-04-13. http://www.ruleoflaw.org.au/wp-content/uploads/2012/08/Media-13-4-12-Australian-Gillard-government-lashed-for-ignoring-breaches-of-model-litigant.pdf
[166] Source: Communication with litigants and victims groups.
[167] 2013-04-04 Letter to The Hon Mark Dreyfus QC MP cc: ‘Whistling While They Work’ Researchers
[168] Ibid.
[169] Speech by Public Service Commissioner Steve Sedgwick, National Portrait Gallery, 2013-07-30: “Public interest disclosure versus leaking: whistleblowers or data thieves.”| http://www.apsc.gov.au/publications-and-media/speeches/2013/sedgwick300313
[170] E-mail from B Jones to (defence investigator) 11 January 2011: ‘I'm unsatisfied with your lack of progress in investigating my complaint. It's now been six months and you still haven't interviewed (perpetrator) - twenty months if you count back to my original submission). … Knowing that the Statue of Limitations was about to expire, I would have expected you to have moved much faster. You avoided my questions regarding seizing evidence and whether you would be investigating all aspects of my complaint. That gives me cause for concern. If you haven't seized that evidence by now, then they've had another six months in which to shred it; either because someone in the DSTO tips them off, or simply because they run out of room and don't think they need it anymore. I've tried everything to get those documents seized. If you haven't done it by now, I assume you're not going to.
You said that a result was "weeks" away. With all due respect, given the delays so far and that you haven't even interviewed (perpetrator) at this point, I don't know you could conclude that. You said you wouldn't be able to tell me the outcome of the case. That's completely unacceptable. … ”
[171] 2011-04-07(11) Letter to defence investigator cc: Minister for Defence Stephen Smith:
[172] E-mail from Defence Investigator to B Jones: Mar 31, 2011 “I signed off on the final report a few days ago and have been advised by the Inspector General that he has cleared it.”
[173] 2011-06-07 Letter from Inspector General of Defence: “As a matter of courtesy, I need to advise you that any further correspondence sent to my office about the issues already investigated will be read and filed but not responded to.”
[174] 2011-06-07 Letter from Inspector General of Defence rejects review, upholds defence investigator’s report.
[175] The Inspector General of Defence investigatess “Fraud or any other activity that may breach Commonwealth legislation, with special regard to the Defence Force Discipline Act 1982 (DFDA), Public Service Act 1999 (PSA), and Financial Management & Accountability Act 1997 (FMAA)” and “Misconduct or unethical behaviour.”
[176] 2011-06-27 Letter to Inspector General of Defence challenges grounds for rejecting review.
[177] “Defence splurges $1.1m on wining and dining” Samantha Maiden, Sunday Herald Sun, September 25, 2011.
“Defence officials spent $1.1 million of taxpayers' money last year wining, dining and entertaining the top brass at home and abroad. ... But the biggest spenders were a group described as others including the Audit Fraud Control Division, Military Justice and Strategic Reform that spent a total of $389,074 on food and alcohol.”
[178] Ibid.
[179] 2011-06-07 Letter from Inspector General of Defence refusing to review Investigative Report: “You are critical of (defence investigator) for not searching further for evidence of theft or misuse of your IP by Defence officials. I consider that we have taken all reasonable steps to inquire into your complaint. As (defence investigator) explained when he presented his report to you, there are no reasonable lines of inquiry for us to pursue in this regard. You seem to expect that we will conduct an exhaustive search of substantial record holdings in an attempt to prove your hypothesis that your IP has been somehow violated. In the absence of any substantive indication that such a violation has indeed occurred, such a search would be an unreasonable diversion of my resources.”
[180] 2011-06-24 Letter to Defence’s business partner.
[181] 2011-06-27 Letter to Inspector General of Defence regarding discovery DSTO had developed a rival product: ‘(Defence investigator) said in his report “No evidence exists to indicate that DSTO is attempting to develop in-house software similar to the Kestrel software.” Because (defence investigator) failed to conduct an IP search he did not learn of (DSTO Product), and the DSTO evidently did not tell him when he asked this question.’
[182] 2011-07-15 Letter from Defence Science Minister Warren Snowdon’s Chief of Staff acknowledging DSTO product
[183] 2011-08-26 Letter from Defence General Counsel appointing Independent Investigator
[184] 2012-04-19 Letter to Defence Science Minister Warren Snowdon regarding termination of independent investigation
[185] 2011-10-12 Letter from Defence General Counsel terminating independent investigation
[186] Peter Lowe, Allan Kessing’s Barrister: “The trial judge took the view that there was no whistleblower defence open on the evidence. That is that there was … the disclosure of the reports could not possibly be in the public interest. That view literally means that the public has no general right to know about airline security issues of that criminal conduct has been disclosed as part of the investigation carried out by Allan (Kessing) in his report. Consequently, that there was also no public interest, or no entitlement of the public to know, that the customs Service had sat on this information for two… more than two years, and they were only prompted to do anything after the disclosure of the reports.” SBS Insight Program, ‘Strictly Confidential Information: Secrecy and Government’, 2007-09-27.
[187] “Whistleblower's Kafkaesque saga a must-see”, Chris Merritt, Legal affairs editor, The Australian, 2009-11-20, http://www.theaustralian.com.au/business/legal-affairs/whistleblowers-kafkaesque-saga-a-must-see/story-e6frg97x-1225799939126
[188] “Reconsideration of Theophanous and Stephens: The Court was prepared to reconsider the reasoning of the decisions in Theophanous and Stephens, because neither of the cases contained strong constitutional law principles; In both earlier cases, Deane J agreed with Mason CJ, Toohey and Gaudron JJ on the outcome, but he differed in the view of the scope of the implied freedom.” http://en.wikipedia.org/wiki/Lange_v_Australian_Broadcasting_Corporation
[189] “Public servant loses fight over Twitter attack on government”, Markus Mannheim, SMH, August 13, 2013,
“A court has paved the way for a public servant who criticised the government on Twitter to be sacked, even though she did not reveal her name or her job to her readers.”
[190] I presume Ms. Banerji would not have been disciplined if she was anonymously praising the government?
[191] Section 70 of the Crimes Act.
[192] 2012-08-29 Synopsis of Complaint provided to Defence Science Minister Warren Snowdon by Independent MP
[193] 2011-11-01 Letter to MPC and PSC (58 Pages alleging APS Code of Conduct and criminal breaches. 8 persons)
2013-04-29 Updated Summary of Complaint alleging APS Code of Conduct and criminal breaches. 17 persons) Contracts IDCR #s: 16049, 22184, 23738, 31148. 21/12/2005 - 2/04/2008. $801K
[194] “Carr steadfast in opposition to human rights bill,” The World Today, December 10, 2008. http://www.abc.net.au/worldtoday/content/2008/s2442550.htm “Bill of rights is the wrong call”, Bob Carr, The Australian, May 9, 2009. “I am surprised at the naivete and gullibility that leads some people to think a charter of rights means that, for the ages, courts will facilitate a left-liberal or reform agenda. They imagine it's only the rights they want that will be enshrined in judge-made law. // Who disagrees with freedom of speech? In 1994 in Canada, the Supreme Court interpreted that right - expressed in the charter adopted in 1982 - to mean tobacco advertising could be resumed, even near schools.” http://www.theaustralian.com.au/news/features/bill-of-rights-is-the-wrong-call/story-e6frg6z6-1225710664130 c.f. The US Supreme court found that free speech is essential for a democracy to function effectively, and that while free speech has some problems, not having it has even more. What about using your right of free speech to explain the reasons they shouldn’t smoke? Mr. Carr might tell you children make irrational decisions and are subject to peer group pressure and should not be allowed to make up their own minds, so the government should make it up for them. But even if that is the case for children, what about adults? Many adults make irrational decisions and are subject to peer group pressure too. And is it the case that teenagers in Canada smoke because of this and teenagers in Australia don’t? So in exchange for this non-solution, Australians don’t get free speech, so employers have the right to ban employees from expressing political views, even privately and anonymously, and we have defamation laws that make it so difficult for the press to report corruption they often won’t until it comes to court, if it comes at all, or the corrupt person is dead – long after society could have benefited had they been allowed to report it. In any case, even in the US the right to free speech is not absolute; (Consider Oliver Wendell Holmes’ ‘fire in a crowded theater.’) US citizens are born with the right, and it can only be taken from them with good reason. On the other hand Australians start with the default position they don’t have it, so they can use it unless a person more powerful than them, a politician or employer, decides they don’t want them to. Our implied Constitution ‘limited right to political speech’ protection is so weak it didn’t help Ms. Banerji. In fact at one point it was argued we were only entitled to use it in the lead up to elections, and having tried to study that law myself I’m still not sure what I am allowed to say and what I am not.
[195] “High Court decision highlights lack of protections for free speech”, 2013-02-27, “A major High Court decision this morning has highlighted the lack of protections that freedom of speech has in Australian law. The High Court’s decision in the case of Attorney-General for South Australia v Corporation of the City of Adelaide and Ors failed to uphold the rights to free speech, freedom of assembly and freedom of religion.” http://www.hrlc.org.au/high-court-decision-highlights-lack-of-protections-for-free-speech
Findlaw: “Do we have the right to freedom of speech in Australia?” “First, let’s get the easy part out of the way: Australia does not have an explicit First Amendment equivalent enshrining the protection of freedom of speech in our Constitution.” http://www.findlaw.com.au/articles/4529/do-we-have-the-right-to-freedom-of-speech-in-austr.aspx
[196] “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.” Government Motion to Dismiss Jones v. Commonwealth
[197] 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 http://victimsofdsto.com/online
[198] 2011-11-01 Letter to MPC and PSC
[199] “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” Mr Howard Whitton: “Systemic corruption for me 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.”
Change History
August 31, 2013:
pp. 7 Section 137.1 of the Criminal Code is punishable by 12 months imprisonment, not 6 months.
pp. 7 Section 137.1 of the Criminal Code is punishable by 12 months imprisonment, not 6 months.
pp. 8. Typo. Insert “what.”
pp. 12. Typo. Insert “use of.”
September 5, 2013:
pp. 5 Typo. Replace “which included” with “including”.
pp. 5 Typo. Replace “which included” with “including”.
pp.11 Typo. Replace “to” with “I”
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