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.