Whistle-blowers and government secrets: cui bono

The debate on prosecution of "whistle-blowers" is characterised by hypocrisy and posturing all round

The need for free-speech, the public's "right to know", and the "right" of journalists to protect their sources have been debated in the media, and played out in the legal system in recent months. So far, officialdom appears to have the upper hand in dealing with leakers and the Press.

An immigration department employee, who was fired for posting opinions critical of the Government and its immigration policies, has just lost her High Court appeal, while an ex-spy known as "Witness K" has recently indicated he will plead guilty to breaching the Intelligence Services Act. (His lawyer Bernard Collaery will continue to fight his own case in the ACT Supreme Court.) Both Witness K and his lawyer were charged last year with conspiring to reveal secret information relating to allegations, that Australian spies had covertly bugged the East Timor government.

A further case involves former Defence lawyer David McBride, who is charged with leaking classified documents relating to alleged war crimes in Afghanistan (to the ABC). He is also being tried in the ACT Supreme Court. (McBride describes himself as a "patriot" and says he tried internal avenues and even the police before going to the media.)

The media had also been running hot with stories condemning AFP raids in June on News Corp journalist Annika Smethurst's Canberra home, and on the ABC's Sydney Headquarters. Both raids sought evidence of sources for stories based on leaked classified information, including McBride's. In April 2018 Smethurst had reported that the heads of the Defence and Home Affairs ministries had discussed draconian new powers to allow the Australian Signals Directorate to spy on Australian citizens for the first time.

The ABC has expressed outrage about being raided. The ABC's managing director, David Anderson, said that "the ABC stands by its journalists, will protect its sources and continue to report without fear or favour on national security and intelligence issues, when there is a clear public interest".

Raids on the homes and workplaces of journalists and whistleblowers "will have a chilling effect on public servants considering speaking up on issues at work and highlight the need for an overhaul in whistleblower laws", says journalist Sally Whyte (quoting un-named "experts"). She also noted that "the federal police are standing by their actions, with AFP acting commissioner Neil Gaughan saying the raids were not designed to intimidate journalists and were 'independent and impartial' of the government". Home Affairs Minister Peter Dutton (in turn) denied prior knowledge of AFP raids, saying "I have had no involvement in the AFP's investigation into these matters.

It is clear that the differing players in the whistleblower debate are each wrapping themselves in the flag of public interest, while concealing their own vested interest.

Lets first talk about the position of the Government and senior bureaucrats.

The reality is that there is a lot of rhetoric in government about freedom of information (FOI) and public interest, that is not matched by actions. Politicians have a habit of strongly supporting FOI and the "right of the public to know", while in opposition, but being notably less enthusiastic when in government.

Also, when it comes to "leaks", despite governments' stated public abhorrence concerning leaks of confidential information, the biggest source of such leaks is in fact the offices of Ministers themselves. These (friendly) leaks occur when the leaked information is felt to benefit the government politically, and are generally facilitated by "friendly" media (commonly News Limited for conservative governments, and Fairfax-Nine and the ABC for Labor).

One high profile example was the leak to the media in 2017about raids on the Australian Workers Union (AWU), aimed at embarrassing Bill Shorten. Media were tipped off in advance that the AFP were searching the offices of the union. Senator Michaela Cash, then the employment minister, denied her office had any involvement in the leaks. Her senior media adviser David De Garis later quit after admitting that he told journalists the raids were imminent.