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Lesson one – don’t dob on the government

For years now, the OECD corruption watchdogs have been recommending that Australia improve its protection for whistleblowers.  In their latest report last December, they pointed to some work that had been done towards this but still expressed concerns.

And with good reason.

During the week, Andrew Wilkie used parliamentary privilege to reveal that the former ASIS agent who revealed that the Australian government bugged the parliamentary offices of East Timor to gain commercial advantage, and his lawyer, former ACT attorney-general Bernard Collaery, have been charged by the Commonwealth Department of Public Prosecutions with breaching the Intelligence Services Act by conspiring to communicate ASIS information.

This will be a very interesting case but, on past record, it is unlikely we will know anything about it.

Australia’s Public Interest Disclosure Act 2013 (PIDA) came into force in January 2014. It protects current, former, or deemed Commonwealth public officials from reprisal action and applies to disclosures about suspected or probable illegal conduct or other wrongdoing.

Disclosures under PIDA are intended to be made internally (i.e. within the relevant government agency). Where it is inappropriate to make an internal disclosure, for example, if the allegation relates to the principal officer of an agency, a disclosure can be made to the Commonwealth Ombudsman or to the Inspector-General of Intelligence and Security (if the disclosure relates to an intelligence agency). There is also scope to make external disclosures (e.g. to law enforcement or media) where an internal disclosure has been handled inadequately, provided it is in the public interest.

Which, according to Mr Collaery, is exactly what his client did.

“One thing I want to make abundantly clear: Witness K was not a whistleblower. He went with his complaint to the Inspector-General of Intelligence and Security, received approval and I received approval to act.”

Mr Collaery said prosecutors were making the “strange accusation” that he had entered into an arrangement with ASIS when he began to represent Witness K and was therefore unable to speak about the bugging operation.

In December last year, Kelly O’Dwyer published a media release about a government bill to enhance protection for whistleblowers.

“The reforms mean whistleblowers will be able to come forward with the confidence that they will be protected under a comprehensive and robust legal framework.

“Breaking ranks and reporting wrongdoing can be a harrowing experience, so it is important people know that they will have access to redress if they are victimised as a result of blowing the whistle.”

But the OECD working group note that, despite these proposals, private sector whistleblowers are still at risk.

“While whistleblower laws that apply to financial institutions cover internal disclosures about any misconduct, including foreign bribery, disclosures to law enforcement and the media are not protected.”

They point to the important role played by the media and express concerns about interference with their ability to report.

The media has so far played a very significant role in detecting foreign bribery cases with eight out of 57 evaluations/investigations reported by Australia detected by media sources. This makes the media the second most common source of allegations after referrals from the public sector.

The evaluation team was conscious that Australia’s Phase 3 Report and two-year follow-up report addressed the use of media suppression orders in relation to proceedings in politically sensitive foreign bribery cases, and wanted to determine whether the use of such orders might have a chilling effect on the media.

One case in point is the foreign bribery case against the RBA subsidiaries Securency and Note Printing Australia.

When employee Brian Hood raised concerns about international banknote deals and the alleged payment of bribes across the world, the RBA initially sought to deal with the complaint internally and only called in Australian Federal Police in 2009 after Fairfax Media’s extensive revelations about the alleged bribery. The corporate watchdog ASIC, refused to investigate.

A decade later, only the most serious allegations from the banknote scandal are being pursued. The so-called grey areas of corporate failure and misconduct, and mistreatment of whistleblowers have so far remained largely unexamined.  And Mr Hood is without a job or any likely prospect of finding one.

This case was, for a long time, under suppression orders forbidding any media reporting.

Will they do the same with the ASIS agent case?

Public Interest Disclosure is not a concept this government embraces as we have seen with their increasingly draconian legislation threatening prosecution for journalists and their refusal to comply with freedom of information requests.

All of which underlines the urgent need for a federal ICAC to stop these bastards who think they are beyond scrutiny and above the law.

 


17 comments

  1. Ricardo29

    Another good one as usual Kaye Lee, And as I commented somewhere else, where is Labor on this and the whole security legislation thing?

  2. Josephus

    We get more like Turkey every day. We need to get out in the streets more, as happens in the USA. We must defend these whistle blowers. Everyone in Border Force/ whatever the monster super ministry calls itself today, must be made to watch the film The Post. Going after sexual predators is all very well, but who is calling out our government? Spying on a small, poor nation is pretty shabby. Does anyone remember what democracy once stood for ? There must be others, in church/other religious groups, human rights groups, lawyers? Rally the troops! Or watch our liberties die. Ten or 20 years for speaking truth to power now, 2 years previously. The Washington Post got away with it because the public was outraged. So must we be. Oh I forgot, the US has better human rights protection than we do.

  3. New England Cocky

    As the voters of New England practice, when you lie down in the mud you cannot complain when the bastards walk all over your face.

  4. Keith

    We know that within Australia that the LNP cannot be trusted, promises in relation to the ABC, SBS, the robo Centrelink letters; while some businesses are involved in much larger fraud. Though most of the people caught out by the robo letters were caught out through the complication of Centrelink mistakes, no longer having particular documentation, or the matter is so complicated an ordinary person would find it difficult to resolve.
    Trickle down and tax cuts for major corporations doesn’t work.
    It follows they cannot be trusted generally.

  5. Terence Mills

    As I understand the situation, the trial of these two men will be held behind closed doors without the Australian public or media being privy to the hearings.

    It is a well known principle of our justice system that justice should not only be done, but should manifestly and undoubtedly be seen to be done.’ and British Lord Chief Justice Hewart’s remarks, uttered nearly 100 years ago,are still heard throughout the common law world and beyond.

    Clearly, for a justice system to operate successfully in a democracy an accused person needs to be guaranteed an impartial and unbiased judge and the judiciary needs the assurance that they will be free from interference by government. Hence the constitutional separation of powers between the Executive and the Courts and the absolute necessity for the dispensing of justice to be open and transparent.

    Over the term of the coalition government there has been an avalanche of so called national security legislation much of it to cover up what the government and its agencies are doing under a shroud of secrecy : one of the explanatory memorandums told us that the new laws :

    allow prosecutors and courts to use information prejudicial to the national interest (national security information) in criminal proceedings while preventing broader disclosure of such information including, in some circumstances, disclosure to the defendant.

    So, they can use information and evidence against you and not even disclose it to you : this one comes straight out of the Pol Pot instruction manual.

    In the case in question, we have our government operatives secretly planting listening devices in the parliamentary offices of another government to gain commercial and tactical advantage. When this travesty is properly and appropriately disclosed, those reporting the wrong-doing are arrested.

    This trial is going to be fundamental to the ongoing protection of our democracy !

    I recall what Sally McManus of the ACTU had to say on the subject of unjust laws ” I believe in the rule of law when the law is fair and the law is right. But when it’s unjust I don’t think there’s a problem with breaking it.”

  6. Babyjewels

    I agree with all the above comments. Very well done, Kaye.

  7. Kaye Lee

    This is an excellent article about the Securency/NPA bribery case.

    https://www.smh.com.au/national/you-dont-fit-in-f-off-reserve-bank-whistleblower-told-20130930-2undq.html

    “Mr Hood also revealed that Mr Thompson and other directors, including Mr Bethwaite and former RBA board member Dick Warburton, agreed to conceal from Nepali authorities the secret commissions that NPA had paid to an agent in Nepal.”

    That’s the same Dick Warburton that did Abbott’s review of the Renewable Energy Target.

    Dick is a former Chairman and CEO of Dupont Australia.

    In 2001, American attorney Rob Bilott led a class action against DuPont on behalf of 70,000 residents in West Virginia and Ohio who alleged they had been poisoned after their drinking water was contaminated with PFAS. The case settled for $70m, which was used to fund what the lawyer describes as one of the most “comprehensive, extensive human health studies ever done”.

    This is the same chemical that has contaminated defence force sites here but our government is resisting taking action.

    https://www.theguardian.com/australia-news/2017/jul/26/children-are-being-poisoned-fury-at-scandal-of-toxic-firefighting-chemicals

    In the East Timor case, Alexander Downer went on to become a consultant to the very oil company that he spied for, and was then rewarded by the government with the High Commissioner’s job in London.

    It’s interesting who the government sees as the goodies and baddies.

  8. Andreas Bimba

    Our system of justice first failed when those that authorised and knew about the illegal planting of 200 covert listening devices in the Timor-Leste Cabinet Office at Dili, to gain an unjust insight into the Timor Sea oil and gas field and border negotiations, were not brought before the courts and prosecuted. What did Alexander Downer and John Howard know and do regarding this issue? When the decay is not cut out it will expand and may eventually kill the host.

    Now the political allies of the original wrong doers feel emboldened enough to secretly prosecute the whistle blowers. Truly reprehensible!

    Will a Labor government get to the truth and prosecute the guilty? No as nothing was done during the Rudd/Gillard/Rudd government.

    Our nation is degenerating in so many ways.

  9. Frank Smith

    Yes, a Federal ICAC immediately! Three major International scandals that have damaged Australia’s reputation, all on the Coalitions watch and apparently pursued with the Coalitions complicity, immediately come to mind. There was the infamous Australian Wheat Board scandal that no one was brought to justice over. Then there was the banknote scandal that various Ministers and senior public servants and “staffers” did all they could to sweep under the carpet. And of course the shameful bugging of the East Timor embassy where the aim was to steal oil reserves from a struggling nation that Australians were supposedly helping. And of course the undeniable complicity of the Australian Foreign Affairs Minister, Fishnets Downer, and his links to Woodside in that scandal. And who is being “brought to Justice” on the latter – the lawyer whose Canberra Office was raided and who was prevented from arguing for his client in the case Timor Leste brought against Australia in the Hague. None of this is Justice. Or is it just how the Coalition see Justice? I repeat “Federal ICAC now”.

  10. Kaye Lee

    In 2012, the OECD Working Group on Bribery’s report said

    “Australia’s enforcement of its foreign bribery laws has been extremely low, with just a single case leading to prosecutions out of 28 referrals in 13 years. Cases may have been closed prematurely. Australia must vigorously pursue foreign bribery allegations.”

    In 2017, they said

    “Australia has stepped up its enforcement of foreign bribery since 2012, with seven convictions in two cases and 19 ongoing investigations. However, in view of the level of exports and outward investment by Australian companies in jurisdictions and sectors at high risk for corruption, Australia must continue to increase its level of enforcement.”

    The 2012 report gives an interesting summary of the 28 cases referred to the AFP – “12 of these cases have been evaluated, rejected for investigation, and terminated, while 9 cases were accepted for investigation but have been finalised without resulting in charges because of insufficient evidence. Currently 7 cases are on-going”

    It lists a selection of these cases on pages 60-63. They make for very interesting reading. They are anonymised but easily identifiable eg the “Casino Foreign Bribery Case” is about James Packer’s business ventures and the “Phosphate Mining Case” is about the bribery of politicians on Nauru.

    http://www.oecd.org/daf/anti-bribery/Australiaphase3reportEN.pdf

  11. David Bruce

    I watched the SBS movie last about Queen Elizabeth 1, and was pleased to hear Kate Blanchett (playing the title role) say “we are above the LAW”. Seems little has changed for the ruling class who think they are royalty and above the LAW. Two things I have learned over the past 70 odd years, 1, time goes slower after 72, and 2, karma returns what you put out, in spades! Good luck Mr Dutton, Abbott, Turnbull and the rest of the ponces.

  12. Frank Smith

    I note a couple of other interesting points about the charges being made against lawyer Bernard Collaery and Witness K in this Timor Leste scandal.
    1. The prosecutor who filed the charges is no other than Sarah McNaughton, the former counsel to the Trade Union Royal Commission, ordered by the Abbott Government. Ummhhh!
    2. The charges allegedly relate to conversations that Collaery had with ABC journalists, Emma Alberici, Peter Lloyd, Connor Duffy, Marian Wilkinson, and Peter Cronau. This, in spite of the fact that the initial story was broken by Murdoch’s News Corp journalist Leo Shanahan in The Australian, but no mention of Shanahan. Smells overwhelmingly of further attacks on the ABC. That Emma has really got under the skin of Coalition bully boys – hang in there Emma.

    https://theconversation.com/lawyer-and-witness-face-charges-under-spy-laws-raising-questions-of-openness-and-accountability-99143

  13. Kaye Lee

    Thanks for that Frank. How interesting that only the ABC gets mentioned. I see Senator McKim has brought that up.

    This paragraph was also interesting…..

    East Timor signed a treaty that denied them their right to a maritime border on the median line. The Secretary of the Department of Foreign Affairs and Trade, Dr Ashton Calvert, then retired and joined the board of directors of Woodside Petroleum. Downer took a lucrative consultancy with Woodside after leaving parliament in 2008. It has been reported that Woodside’s chairman, Charles Goode, “sat on the boards of top Liberal Party fundraising vehicles that generated millions of dollars in political donations.”

  14. Jaquix

    Andrew Wilkie also included in his speech in parliament, that in his opinion “Australia is in a pre-police state”. They are chilling words.
    He was in the Army for 20 years, and in Intelligence for several years. This is not some young whippersnapper speaking up. Its a highly respected Independent Member of Parliament with a good track record of championing good government, for the good of the people.

  15. Cedric

    Slightly off topic, but people who were required under the robo debt fiasco to return money deemed they were not entitled to, should take heart, that according to Scomo, it’s their money anyway. It wasn’t the governments, so relax.

  16. Terence Mills

    On a lighter note, as another site on this subject reminds us :

    Reminds of the Two Ronnies joke about the spokesman who said the government had no idea what it was doing. He was charged with violating the official secrets act.

  17. Terry

    You are such a card Terry LOL Hah Hah

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