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Whistle-blowers and government secrets: cui bono

By Brendan O'Reilly - posted Friday, 16 August 2019


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.

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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.

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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.

To be fair, such "friendly" leaks generally do not extend to matters of national security. [Leaks from intelligence agencies do clearly compromise the effectiveness of these bodies vis-a-vis their counterparts in countries like Russia and China, and rightly are treated much more seriously.]

You can take with a grain of salt claims by senior bureaucrats and police that actions concerning leaks are all totally independent, and uninfluenced by Ministers. While there is a general lack of overt political influence (reflecting the separation of powers), the reality is that both the bureaucracy and the AFP (for organisational and career reasons) like to please their political masters, and share a common hostility toward those who rock the bureaucratic boat.

The stated motives of many "whistleblowers" are also questionable. While such people universally protest that they are driven only by public interest motives, the reality is often different. Many of the more prolific leakers in government departments are known to be public servants of "committed" political affiliation, who seek to embarrass a Government from the opposite camp.

It is also widely believed that "whistleblowers" more commonly come from the Left.

A high profile exception was the case of Godwin Grech, who sought to damage the Rudd government by leaking an e mail (subsequently exposed as a fake) to the then leader of the Opposition (Turnbull). Grech himself had a lot of personal issues.

In a democracy, it is ultimately the role of the elected government to make key policy decisions, and the role of public servants is to serve the government of the day.

There is a right way to cope with a situation, where a public servant has a conscientious objection to implementing a given policy (as part of his/her duties). A legitimate option is to draw any reasonable concerns (e.g. possible illegality) to the bureaucratic hierarchy. The difficulty is that such action is rarely welcomed, and commonly is not career enhancing. Another option is to move to a different area of government (where such conflicts do not arise). In extreme circumstances, a conscientious objector can do what Andrew Wilkie did, when he opposed Australia's involvement in the Iraq war. (Wilkie resigned in protest).

This brings us to the position of journalists.

There is a traditional European concept that there are three estates of the realm: the clergy (less important these days), the nobility (these days politicians) and the commoners. A fourth estate (the press/media) has been added since about the mid-Nineteenth century, reflecting the increasing prominence and power of the media. Journalists (with some justification) see themselves as playing a key role in informing the public concerning matters of news, opinion and general interest. They also view protecting their sources as a key consideration in doing this.

On the one hand, the journalists' code of ethics requires them to keep their sources confidential. The Media, Entertainment and Arts Alliance, for example, requires that "in all circumstances (journalists) shall respect all confidences received in the course of their calling". The other side of the coin is that it would appear intolerable to allow journalists to place their self-decided ethics above the law of the land. In this vein, journalistic privilege, if it exists, probably ought not extend to protecting the identity of lawbreakers or those risking national security.

In this context it is worth noting that there seems to be a widespread conviction amongst journalists that they are morally entitled to privilege in respect of the secrecy of their sources. There is a certain hypocrisy here because, firstly, journalists have very limited such privilege in law, and (secondly) journalists themselves have attacked similar claims for secrecy for other groups. (A clear example during the child abuse debate was the widespread attacks in the media on clerical pleas for the secrecy of the confessional to be protected. [The rationale assumed that sex abuse offenders, who confessed to a priest, could be "dobbed" by their confessor (under advocated compulsory reporting rules) and subsequently be brought to justice.]

So-called existing "shield laws" in reality offer very limited actual protection for journalists' sources. The Australian Security Intelligence Organisation (ASIO) recentlywarned against legislative exemptions for journalists because "hostile actors" may exploit them. "In Australia today, journalism is being used as cover by hostile intelligence actors. This has a long history," ASIO said.

Lawyers, doctors, and priests have for centuries enjoyed a legal privilege in many countries regarding their professional consultations. The confidences of journalists, however, have very limited legal protection, despite the pleading of journalists themselves. In the last 25 years at least three journalists in Australia have been sent to jailfor refusing to betray their confidential sources to a court.

It is a mistake to think all leaks to the media are worthy and in the public interest. The industrial scale leaks of US military data facilitated by Wikileaks, and Snowden and Manning (which have verged on espionage but would be termed "whistle-blowing" by the Left in Australia) were very damaging to US intelligence. They most likely cost lives and endangered operations. Such recklessness underlines the case for opposing liberal "whistle-blowing" laws backed by unfettered journalistic privilege.

The real problem for liberties and free speech in Australia lies not in our lack of protections for whistle-blowers. Australia's excessively censorious defamation laws and Section 18c have far more serious effects on free speech and public debate. Attempts by the Left to ban persons they accuse of "hate-speech" only threatens to make things even worse.

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About the Author

Brendan O’Reilly is a retired commonwealth public servant with a background in economics and accounting. He is currently pursuing private business interests.

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