Whistleblowers benefiting the community deserve reward, not punishment
While journalists obsess over AFP raids a fortnight ago, much of the public is sceptical.
Such scepticism is understandable. As former ASIO director and Defence Department chief Dennis Richardson said in this paper last Thursday, the terror-related laws enacted since the September 11, 2001, attacks on New York’s World Trade Centre and the Pentagon have protected Australians by foiling several domestic mass casualty plots.
The real problem is not raids on journalists but the effect such raids could have on whistleblowing. As The Australian’s legal editor Chris Merritt wrote on June 6, the freedom of journalists was guaranteed by Coalition legislation last year.
“In the midst of the debate over changes to national security laws last year the government … gave reporters a new defence that protects the publication of secrets that the reporter believes … (are) in the public interest,” Merritt wrote. Yet the government at the time rejected Law Council advice that protection also be given to those providing confidential information to journalists.
Still sceptical? Not surprising, given the overblown rhetoric by journalists claiming the raids show Australia is now a fascist police state. But sceptics should consider a recent example that shows how a whistleblower’s leak forced a government to take action that improved national security. Martin Chulov, in The Australian in 2005, broke a series of stories about internal reports into the operations of the Australian Customs Service, now part of the Australian Border Force within Home Affairs Minister Peter Dutton’s portfolio.
The internal Customs reports were prepared by Alan Kessing, whose home was later raided. This newspaper never revealed its source and Kessing was convicted despite maintaining his innocence. But here’s the rub: then aviation minister and deputy prime minister John Anderson took up the recommendations from the leaked internal reports and spent $220 million to bolster Customs’ defences against potential drug smuggling and terrorism.
Chulov and his source were pursued by the AFP even after the government tacitly acknowledged the importance of the leak by fixing the issues the stories identified. Kessing himself was dragged through the courts, convicted and financially destroyed.
Commenters on this site have suggested since the AFP raids on the ABC and News Corp journalist Annika Smethurst two weeks ago that leaks of confidential material to journalists are improper. As this company’s corporate affairs director, Campbell Reid, told ABC Radio National last Wednesday: “Canberra is a leaky ship and it leaks when it suits people to leak and that can be … the very people who the next day will rail against leaks and order an inquiry.”
Reid’s comments hint at the question of motive for leaks. In my view, genuine whistleblowers deserve better shield laws even in matters touching on the subjects that now have little protection: national security and immigration matters. Politically motivated leaks are a different thing.
Smethurst, in April last year, revealed Dutton’s department had considered a plan to allow the Australian Signals Directorate, which tracks electronic transmissions from overseas, to target the communications of Australian citizens. While alerting readers to this was in the public interest, it is possible the source was a senior Coalition minister allied to then prime minister Malcolm Turnbull and the leak was an attempt to damage Dutton.
It is instructive that the AFP said after the raid it was not seeking to obtain text communications between politicians and journalists. I do not know Smethurst’s source but she is one of the country’s best young political journalists. Since Dutton never pursued the ASD idea there were no national security implications in her story. The motive of her source is another matter.
The leak to the ABC is different. The leaker, former army officer and military lawyer David McBride, has admitted he was the source for a 2017 7.30 program about the killing by Australian SAS personnel of innocent Afghans. McBride had said publicly before the AFP raid that he was prepared to face the legal consequences because the public needed to know about this misconduct. He did the right thing, having failed to get the military to take action. There were no national security implications in the ABC report yet McBride could face jail.
Whistleblowing is crucial outside the public service but protections for those who expose wrongdoing are weak. Often whistleblowers approach the media only after years of trying to right wrongs in institutions.
One of the nation’s earliest such whistleblowers was our only Catholic saint, Mary MacKillop. Pope Benedict canonised MacKillop in 2010. She had been excommunicated by the Catholic Church in 1871 for her role in exposing the abuse of a young boy by an Irish priest. Many media stories about pedophiles come after parents of abused children go to the media following years of stonewalling by churches and schools.
Nine’s former Fairfax journalist Adele Ferguson has relied on whistleblowers in the business sector whose lives were destroyed for revelations to her about improper conduct in the banking, superannuation and franchising industry.
On June 11 Ferguson wrote that a confronting week for whistleblowers began “last Monday when ATO whistleblower Richard Boyle and his wife Louise Beaston spoke out about the toll on his life since being raided by the AFP, then charged with 66 offences equivalent to a 161 year sentence if found guilty”.
Boyle had revealed Australian Taxation Office bullying tactics used against individual taxpayers only after he had made appropriate disclosures under the Public Interest Disclosure ACT 2013 to the ATO, which dismissed his claims. The ATO finally offered him a payout to settle an alleged breach of the Public Service Code of Conduct, conditional on his acceptance of a gag order.
Two Ferguson sources, the Commonwealth Bank’s chief medical officer Ben Koh and a whistleblower at financial services group IOOF, made internal complaints and registered as whistleblowers but were sacked for going to the media after their attempts to follow process failed. Long-time CBA whistleblower Jeff Morris, who effectively triggered the financial services royal commission, has struggled to make a living since leaving his financial planning role at the bank after death threats following years of working with the Australian Securities & Investments Commission to try to clean up banking.
Evidence overseas shows it does not have to be like this. Popular culture has made heroes of whistleblowers in the US. Think of Hollywood blockbusters such as Serpico, Silkwood and Erin Brockovich. US laws even operate an award system that allows whistleblowers to earn as much as 30 per cent of the penalties imposed in legal action taken against companies defrauding government.
Whatever your views of journalists, readers should think very carefully before they decide whistleblowing is not in the public interest.
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While journalists obsess about the media raids by the Australian Federal Police a fortnight ago, much of the public is sceptical, trusting the security services more than the fourth estate in an era of fake news and activist reporting.