Authorities should stop pursuing former Customs officer Allan Kessing, who blew the whistle on major securityy lapses at Sydney Airport. He deserves a reward rather than a conviction. The treatment of Kessing shows how governments treat the public’s right to know with contempt, writes Dr Norman Abjorensen.
Governments are contemptuous of public’s right to know
By Norman Abjorensen*
The disgraceful pursuit of former Customs official Allan Kessing over his revelation of serious security lapses at Sydney Airport highlights both an official obsession with secrecy in Australia and a major deficiency in protection for whistleblowers acting in the public interest. Mr Kessing faces the possibility of further charges after having already been convicted under section 70 of the Commonwealth Crimes Act for which he was given a nine-month suspended prison sentence and ordered to pay a $1000 good behaviour bond. The Australian Federal Police is now considering whether to take further action after Mr Kessing admitted to leaking a report to a then staffer of a Federal Labor MP.
There is no doubt that Mr Kessing was acting in the wider public interest – and immediate action was taken to address issues subsequently revealed in newspaper articles based on the leaked report – and there is no suggestion that it was for any personal gain. Indeed, he now faces significant debt from his legal fees
Despite some perfunctory legislation, official Australia has been reluctant to acknowledge that the willingness of public officials to disclose wrongdoing within their organisations is an essential element in a robust democracy, as important as the work of auditors-general and other officials such as the ombudsman.
Since 1993, nearly all Australian jurisdictions have introduced relevant legislation for the public sector, but in reality both the content of the laws and the practice of handling whistleblowing have continued to be vexed issues. Laws to protect whistleblowers are patchy at best, and the Commonwealth remains by far the greatest laggard, despite promises by the Labor Party to address the issue. The fact that section 70 of the Crimes Act under which Mr Kessing was prosecuted still remains on the statute books with its sweeping provisions is a monument to inaction.
Existing protection for whistleblowers is limited in effect as well as narrow in scope. Various restrictions on Commonwealth public sector employees disclosing government information are contained in a range of Commonwealth Acts and Regulations, including the Crimes Act 1914 (Cth), the Criminal Code Act 1995 (Cth), the Public Service Act 1999 (Cth), the Privacy Act 1988 (Cth) and the Freedom of Information Act 1982 (Cth).
The primary source of protection for whistleblowers is contained in section 16 of the Public Service Act. This section notes that a person performing functions in or for an agency “must not victimise, or discriminate against, an APS employee because the APS employee has reported breaches (or alleged breaches) of the Code of Conduct” (section 16 of the Parliamentary Services Act provides the same protection for persons performing functions in or for a parliamentary department established under that Act).
However, a report tabled earlier this year by the House of Representatives Legal and Constitutional Affairs Committee Committee’s indicates that only two-thirds of employees in the Australian government sector are protected by section 16 of the Public Service Act; employees of agencies falling within the Commonwealth Authorities and Companies Act 1998 are not covered, nor are former public servants, contractors or consultants.
The committee, chaired by Labor MP Mark Dreyfus, made a series of recommendations for reform but the government has yet to formally respond. As things stand, there is little incentive for an official to blow the whistle, no matter how serious the matter at hand. A study in 2007, led by Griffith University, surveyed public servants in the Commonwealth and three states and found that 71 per cent of the almost 8000 respondents had observed at least one instance of wrongdoing or serious maladministration in the preceding two years. Of those who reported wrongdoing, 22 per cent replied that they had been the victim of reprisal from managers or co-workers.
There is no universally accepted definition of whistleblowing, but one that has gained broad acceptance emanated from a Senate committee inquiring into whistleblowing in 1994: “The disclosure by organisation members (former or current) of illegal, immoral or illegitimate practices under the control of their employers to persons that may be able to effect action.”
The report came at a time when whistleblowing featured prominently on the political agenda, coming as it did in the wake of the some well-publicised corruption investigations, such as the explosive Fitzgerald Inquiry in Queensland. In 1991, a review of Commonwealth criminal law went so far as to accept the broad principle that in a democratic society “the public should have access to as much information as to the workings and activities of government and its servants as is compatible with the effective functioning of government.”
As a result of this peaking of public interest, a raft of public interest disclosure legislation was passed – South Australia in 1993; Queensland, the ACT and New South Wales in 1994; the Commonwealth 1999; Victoria 2001; Tasmania 2002; Western Australia 2003; and Northern Territory 2008. There is, however, significant inconsistency in the types of wrongdoing about which protected disclosures can be made under relevant legislation, and in some circumstances the conduct about which a disclosure may be made is deemed to be too general and to fall outside the category of whistleblowing.
In other cases, such conduct is too narrowly defined where, for example, only unlawful behaviour is covered, not maladministration. Only three states – South Australia, Queensland and Western Australia – have seen fit to take a comprehensive approach in identifying the type of public sector wrongdoing covered, and are also the only jurisdictions that provide remedies for potentially or actually aggrieved whistleblowers. Only one jurisdiction, New South Wales, extends protection in certain circumstances to officials who make public interest disclosures to member of parliament or the media.
Australia’s efforts in enacting effective legislation protecting public interest disclosure lag behind many comparable countries. In Canada, for example, the Public Servants Disclosure Protection Act lists the ‘wrongdoings’ that may legitimately be revealed, makes illegal any reprisals against public servants who disclose or co-operate with investigators and establishes the office of the Public Sector Integrity Commissioner. In the United States, the Whistleblower Protection Act of 1989 –extended in 1994 to cover employees of some government corporations and employees in the Veterans Administration – prohibits federal officials from reprisals against employees who blow the whistle on public sector misconduct and provides a means of redress, including financial compensation for any loss suffered. Australia, it should be noted, also has an international obligation to protect whistleblowers, deriving from its signing of the United Nations Convention Against Corruption (UNCAC) which make specific reference to protection for public interest disclosure.
The reluctance to enact stringent legislation to protect public interest disclosures coupled with inadequate and compromised laws relating to Freedom of Information and an absence of shield legislation for journalists all serve the cause of maintaining official secrecy and treat the public’s right to know with cynical contempt.
Dr Norman Abjorensen, a CLA member, teaches politics at the ANU. He is a Visiting School Fellow, Political Science & International Relations, in the School of Social Sciences. HGis most recent book is Australia: The State of Democracy (with Marian Sawer and Phil Larkin), published in mid-2009. (article September 2009)