‘The act is a dog’: whistleblower shields too weak
“The letter was like a Platonic dialogue,” says Greens senator Jordon Steele-John. “It was as hilarious as much as it was unhinged. It’s unusual that a public servant would write a letter to an elected official.”
The letter in question was written by Home Affairs secretary Mike Pezzullo late last year after Steele-John had colourfully – and vitriolically – used his parliamentary privilege to criticise Pezzullo during the debate of controversial encryption laws.
“How best to answer another’s scorn?” Pezzullo’s letter opened. “Answer according to the scorn, and one risks behaving like the other. Do not answer the scorn, and one risks allowing the other to be wise in their own eyes.”
Pezzullo’s communication this week with another senator seemed less amusing. Centre Alliance’s Rex Patrick said he received a phone call from the Home Affairs secretary after suggesting Pezzullo hated media scrutiny. Patrick said Pezzullo was polite but firm. “I’ve tried to reconcile in my mind what the phone call was about,” the senator told the ABC this week, “and the only thing I can think of is that he was trying to get me to be quiet in respect of my criticisms of the Department of Home Affairs.”
Pezzullo denied this. Regardless, Scott Morrison said he was concerned and requested that Home Affairs Minister Peter Dutton counsel Pezzullo on the matter.
Pugnacious, erudite and self-assured, Pezzullo is one of the most divisive and powerful public servants in the capital. This week, I spoke with five public servants. Some former, some current. All have at least a decade’s experience. They’ve worked in different departments and at different levels. Some have worked in national security. Each requested anonymity in order to speak candidly about secrecy, whistleblowing and Pezzullo. They were not uniform in their views.
“Transparency and accountability are really important, and I think much more can be done to strengthen the mechanisms we have,” one told me. “I’m thinking of [freedom of information], external audits, ombudsmen, internal whistleblowing for public servants who smell something not right. All of those things can be strengthened. Where it gets tricky is public whistleblowing. It’s extremely fraught. My personal view is that public whistleblowing can attract a certain personality. There are motivations other than doing the public a good. It’s a flame for the moth of axe-grinders and attention seekers. People who have a history of misconduct and looking for a way to stick it up them.
“What gets lost in these conversations is the reason why this information is protected. A lot of it is in the public interest. Certain things shouldn’t be made public. And that’s not explained. But the agencies can’t fully defend themselves and put their side of that story – they can’t have that conversation in public. One of the reasons it’s not explained is because it’s not the government’s information. They’re the custodians of particular information that belongs to or comes from an external party and they have a duty to protect that – and to protect their reputation that they can be competent.”
One crucial matter here is that the protections of the Public Interest Disclosure Act – the principal act for protecting Commonwealth public servants – exist only when there’s first been an internal disclosure. An alarmed public servant must first ring the bell inside. This makes intuitive sense. It prevents impulsive or vexatious public disclosures – remember that Godwin Grech was hailed a hero before he was revealed as a fabulist. As one public servant pointed out, spurious disclosures might publicly attain the appearance of credibility when the accused is constrained from refuting them.
But the requirement of internal disclosure asks a lot of the culture of the workplace. Some of the public servants suggested that disclosure can be tacitly discouraged by the prevailing culture. “I think that many [public servants] would feel guilty, would feel a sense of betraying something,” said one. “That they’re dirty. It’s clearer in the movies about those that blow the whistle on the big things. You know, it seems obvious. Smoking kills people, and these guys are pretending it doesn’t. There’s good and bad, and they’ve made a decision to reveal the bad. But culture means you question things and you question yourself. It’s hard to explain, but I think if you’re embedded in a place, things that might seem obvious after the fact aren’t obvious then.”
Another said: “It’s one thing to have legal protections for whistleblowers; it’s another to have a culture where an individual would not feel intimidated from using them.”
One public servant, a former executive of the Department of Immigration, told me that public servants were unduly constrained and oppressively scrutinised. “In terms of culture, for me what I saw was a steady ‘us and them’ mentality. Particularly because I worked on refugees and it was contested or controversial policy, so a culture of secrecy and opposition emerges from that – from that defensiveness. So, look what’s happened recently. There was secrecy around the Sri Lankans who got ashore on Christmas Island. They were processed and sent straight back home. Now, because of the culture in that place, there’s no way that any of [the asylum seekers] would have been found to be refugees even if they were. And the chances of anyone saying anything about that are very, very low. If that person gave you a call and you published that, and then the [Australian Federal Police] are going through your underwear drawer, that person’s cooked. Good luck with whistleblower protections.”
Yet another public servant was most animated by what they perceived as hypocrisy. They referred to a lecture given by Pezzullo last year to the Institute of Public Administration Australia on the responsibilities of the public service, not long before his letter to Steele-John.
At the time, Pezzullo said: “It would be mortally dangerous to our system of government for the public service to come to possess an aggrandised conception of its role in the proper processes of government – as the ultimate guardian of ‘the public interest’, located outside of the political process. There is no legitimate basis for contending that unelected officials have any purportedly ‘supranational’ responsibility as custodians of the ‘public interest’, somehow separately identified from the domain that is termed too often to be that of ‘politics’.”
Responding to Pezzullo’s speech, the public servant said: “All things being equal, he’s right. Public servants shouldn’t think that they’re players. We shouldn’t be crusading … That’s really fundamental stuff. We’re not elected. Public servants aren’t elected. We can’t be agitating in the public service as some kind of shadow opposition if we don’t like the government.
“But all things aren’t equal. The government leaks when it suits them. It distorts intelligence briefings when it suits them, knowing it’s unlikely the [intelligence] community will publicly correct them. Department advice is weaker and weaker in terms of frank and fearless advice. The whole work of departments can be distorted by political schemes, rather than problem-solving. So, I agree that public servants shouldn’t be above the social contract. We’re servants, and maybe a part of that is putting up with the bullshit of our political masters. If you can’t hack it, leave. Fair enough. But don’t give me this high-minded bullshit when we know the score.”
Andrew Wilkie is the independent member for Clark. For more than a decade, he served as an infantry officer in the Australian Army before he joined the Office of National Assessments as an intelligence analyst. He worked there during the prelude to the Iraq war, examining field reports and satellite imagery. In 2003, he became the only intelligence officer in the “coalition of the willing” to publicly resign before the war, arguing it was founded on a lie. Subsequently, he became one of the country’s most famous whistleblowers.
“The short answer is no,” Wilkie says. “Our whistleblower laws are not sufficient. The centrepiece is the Public Interest Disclosure Act, and while it was good that we finally got that legislation, what we did get was quite deficient. The obvious gap in it is that it simply doesn’t apply to security officials [it does, but minimally]. There’s no whistleblower protection for intelligence insiders. As far as I understand it, it wouldn’t apply to Defence personnel. Interestingly, it doesn’t apply to members of parliament’s staff.”
Wilkie argues that since September 11, 2001, national security legislation is routinely passed without adequate scrutiny. He believes that is attributable to ideology, ignorance and political convenience. “Parliamentarians don’t understand much about this, not just technology, but any of it. Most politicians couldn’t name the security agencies or tell you what their roles are or which acts underpin them. Most politicians wouldn’t know that the signals directorate isn’t usually allowed to spy on Australians. They wouldn’t know the different roles of [the Australian Secret Intelligence Service] and [the Australian Security Intelligence Organisation]. Most politicians don’t have a clue about this world. No clue about the dark web, or the capabilities of [the] signals directorate, or social media platforms, or encryption. Wouldn’t have a clue about legislating for backdoors. I mean, I struggle to understand it and I worked in that world.
“Now, when this gets to parliament, the opposition wave it through. If it’s the Coalition, well, they’re hawkish on security reforms, while Labor are scared stiff of being seen to be weak on national security. So, it sails through parliament, barely contested.”
An example came in December last year, when the federal parliament passed controversial encryption laws that require tech companies to grant intelligence agencies and law enforcement access to encrypted communications. Labor was publicly critical of the bill, and drafted amendments that the party said would improve it. But on the year’s last parliamentary sitting day, then opposition leader Bill Shorten surprised some in his own party by dropping the amendments. The law passed, unchanged and lightly examined.
Wilkie argues that a lack of scrutiny reinforces the importance of the parliamentary joint committee on intelligence and security as a body of examination. But given that the committee members only ever come from the two major parties – Wilkie himself sat on the committee during the Gillard years, but was a rare exception – it reinforces political expedience. “It has signed off on every piece of legislation since 9/11,” Wilkie says. “So, it’s part of the problem. There are no alternative voices on there. No Greens or independents. No minor or micro-parties. I heard [Kristina] Keneally express some reservations about the committee examining media protections, but what’s likely is that Labor will roll over and let the committee do a review. That would be a terrible mistake.”
Senator Keneally declined to comment.
Professor A. J. Brown is a board member of Transparency International, and a teacher of governance and anti-corruption policy at Griffith University. In 2013, he was central to the Gillard government’s passage of the Public Interest Disclosure Act. He’d worked with the Rudd government to design something similar. “Some forces inside the party were trying to kill it off,” he says of that first attempt. “It was then drafted to fail. But it was rescued six years later when Mark Dreyfus became attorney-general. He did his best and I did my best to get it fixed. But the act is a dog.”
This week, Federal Court Justice John Griffiths agreed. In throwing out a case concerning a whistleblowing Parliament House security guard, Justice Griffiths called the law “technical, obtuse and intractable”. He went on: “This may reflect the multiple compromises which have been struck in weighing the competing public and private interests. It is acknowledged that reconciling these competing objects is not an easy exercise and is one for the Parliament. But the outcome is a statute which is largely impenetrable, not only for a lawyer, but even more so for an ordinary member of the public or a person employed in the Commonwealth bureaucracy.”
Brown explains that the act doesn’t clearly define public interest, there are “near-comic” exceptions to intelligence officers, and the use of a Commonwealth ombudsman to enforce the law has been a failure. “It did a good job of encouraging … agencies into having better regimes internally for disclosures, but when it came to having a role for standing up for whistleblowers when things get hard, it was never good in that role. Consequently, any whistleblower is left on their own once the going gets tough. And no one is enforcing the legislation. It requires a dedicated office – but that’s after the significant revision of the act. It needs to be simplified. And even before the media raids, that should have been a policy priority.”
This article was first published in the print edition of The Saturday Paper on Jun 15, 2019 as "‘The act is a dog’: whistleblower shields too weak". Subscribe here.