KAFKA FACTS

Recommended Reading, Franz KAFKA's The Trial (Der Prozess) or at least the FIRST LINE.

In 2002 and 2003 an officer with the covert Air Border Security Unit of the Customs Department, wrote two reports identifying serious breaches of security at Sydney Airport.

The report documented, among other things, the employment of baggage handlers with criminal records, theft of luggage, and drug trafficking. K found that roughly 30 percent of all personnel working behind the ‘sterile line’ (airside) had questionable backgrounds – aside from workers with criminal records, there were illegal immigrants, overstays, and, in eight cases, workers with no form of documentation at all.

‘It was out of control,In these eight cases we couldn’t find any record of these people even being in Australia. I checked immigration records, police records, electoral roles, vehicle registration records, nothing.’ K was horrified that these people were allowed to work in what was the most sensitive area of the airport security wise. In addition K found other major issues like black spots in the spread of surveillance cameras. Kessing was worried that the security weaknesses and criminal elements behind the sterile line could be exploited by terrorist groups.

K says he did what he thought he was supposed to. He took the first report to his boss $#@! *&^%$#@! Customs Manager for Sydney Airport, in February 2003, and the second report, which was more detailed, in September 2003.

Given his findings K thought these reports should be brought to the attention of higher ups in Canberra and to the Sydney Airports Corporation, the majority of which is owned by Macquarie Airports, and which was then headed by former John Howard chief of staff Max Moore-Wilton.

‘Under statutory law, the private company that owns Sydney Airport is obliged to uphold the highest security standards. Clearly, they were in breach of that obligation. It posed a serious threat to the public.’

K was flabbergasted by the reaction of his boss whom he had expected to take immediate action. He recalls that it was something like: ‘This is going to cost Macquarie millions and millions. I can’t present this to them.’

K says that his boss was so worried about possible financial and political fall out – especially given that the airport was managed by a mate of John Howard’s – that the boss would rather jeopardise security than fulfil his duty as a Customs official.

And so, K says, his reports were buried - not handed to government and not presented to the owners of the airport.

‘A typical bureaucrat, ameretricious mediocrity, head down, shut up, don’t cause a fuss and further your career by not rocking the boat. He now has a plush job in Canberra.’

K says that he and his six colleagues in the Air Border Security Unit were stupefied. He says his direct supervisor $%#* &%@#$ was especially outraged. ‘$%#* was the one who had invited me into the unit, asked me to write the reports then asked what we could do.’

According to K, $%#* had previously been made aware of plans )(&^#^@! was harbouring to disband the Air Border Security Unit, hence the refusal to act on the reports hit $%#* extra hard.

K says he and she discussed the possibility of leaking the reports to the media, discussing whether newspaper coverage would spur the government into action. ‘I told her that the simplest way was to put the reports in a brown paper bag and anonymously mail them to the newspapers.’ He says he took the matter no further but that his colleague remained seriously upset and outraged about the affair. By mid 2004 the Air Border Security Unit had been abolished.

K went on LSL & extended leave, returning in Dec 2004 and later retired from Customs. In May and June 2005, several weeks afterwards, The Australian newspaper ran a series of stories allegedly based on the reports. Someone had apparently sent the reports to journalists Martin Chulov and Jonathan Porter, who were running the stories with big headlines.

Kenneth Nygen summarized it as follows in a later editorial in The Age:

“The front page of The Australian carried the sort of headline that governments hate but that citizens commonly appreciate: "Airport staff 'smuggling drugs' - Secret Customs report exposes criminal links". The story, by journalists Martin Chulov and Jonathan Porter, suggested a failure by the Government in its duty to protect the public, but in turn represented a success on the part of the Fourth Estate in its duty to inform the public.”

The government tried to play down the gravity of the situation. Senator Chris Ellison appeared on television to say the reports were "no cause for public panic in relation to traveling. In fact, I'd say to the Australian public that they should not panic and that they can rest assured we have safe and secure skies." [CHECK ARCHIVE]

Nevertheless the government took action on several fronts. On 7 June 2005 it announced a review of security at Australia’s airports and appointed a UK security expert named Sir John Wheeler to conduct the inquiry. Wheeler was a big gun – in the UK he had established the National Criminal Intelligence Service and he had headed a major review of security at UK airports including Heathrow.

Wheeler’s appointment was announced at a joint media conference by the Deputy Prime Minister and Minister for Transport and Regional Services, the Attorney-General, and the Minister for Justice and Customs. [CHECK ARCHIVE]

Publicly, the government said that there was no connection between the Australian’s revelations and the appointment of Wheeler but this was widely dismissed in the media. Indeed, Wheeler himself would later refer to the reports as a catalyst for his appointment:

“The context for the review of security and policing at Australia’s airports was community concern about reported instances of criminality and security weaknesses at major airports such as Kingsford Smith in Sydney. The media had highlighted the possibility that weaknesses exploited by criminals could also be utilized by terrorists.

[…] stories based on a report by a staff member of the Australian Customs Service which was classified ‘Highly Protected’ and released without authorization and included details of security and criminality vulnerabilities at Sydney Airport involving baggage handlers and other staff such as security screeners.” [page 1. #3/4, Wheeler Report]

At the joint press conference Deputy Prime Minister John Anderson stated that:
“We’re conscious that the community now understandably wants the issue of criminality addressed because they think that’s where there’s a potential for terrorism ... they want any overlap addressed. ... I think it is right that governments respond to community concern. ...We want a quality overview. I think public confidence is obviously very important”. [CHECK ARCHIVES]

K is highly skeptical of Anderson’s statement. “The government states it was responsive to ‘community concerns. [B]ear in mind that they arose from the reporting of a 30 month old assessment.”

Wheeler took 3 months to finish the job. In September 2005 he presented his report which is publicly available. The conclusions were scathing, highlighting bureaucratic turf wars and calling the policing of Australian airports ‘often inadequate, dysfunctional and uncoordinated.’

With regards to the report’s findings he noted:

“Intelligence material, particularly from Customs, confirmed significant threats and vulnerabilities at major airports that are consistent with the reporting by The Australian on 31 May and 1 June 2005 of the unauthorized release of a classified Customs staff-level assessment at Sydney Airport.”

Wheelers’ numerous recommendations led the Howard government to commit to a massive overhaul of airport security measures throughout Australia – to the tune of anywhere between 200 and 300 million dollars. A recent story in the Australian (June 20) suggested that as much as $886 million has been spent since the Wheeler report on upgrading security.

At the same time that Wheeler received his instructions the Australian Federal Police was instructed to track down the person who had leaked the Customs reports that had so embarrassed the government. The man ultimately fingered for the leak was K.

If it was indeed K who leaked the reports he had chosen the wrong time to do it. According to several newspaper reports the AFP has spent 30,000 man hours hunting down leaks from the civil service and government in the last decade, targeting both whistleblowers and journalists. While the AFP went after the Customs' leaker, the DPP for instance was also prosecuting journalists Harvey and McManus of Melbourne’s Herald-Sun newspaper for not revealing the source of a story about veteran allowances. Both journalists escaped jail terms but were fined $7000 dollars.

It was against this backdrop that on 6 September 2005 six AFP officers raided a shack, in K's absence on a bush shack in the Blue Mountains and a Customs' Internal Affairs allegedly found a copy of one of the reports, then went to the home of his recently deceased mother in Marickville and, the same IA officer allegedly found the other report. as well as a business card with Chulov’s name on it [AFP VIDEO of SEARCH AVAILABLE in BOTH CASES DO NOT SHOW the EUREKA MOMENTS]. The police would later, in court, also reveal that they pulled phone records from the local phone booth which showed that calls had been made to The Australian shortly before the publication of Chulov and Porter’s stories.

K admits to having spoken to the reporters but says that they had contacted him after they had received the reports. ‘I have always been the ‘go to’ guy in Customs, and of course they called me since I was the author or the reports.’

K maintains though that he did not leak the reports to the Australian. He says that there are alternative ways in which he thinks the material could have been leaked to the Australian.

1) A colleague leaked the report. The Unit had often discussed leaking it after Custom’s refusal to act. A couple said they were were going to do it. All denied under oath that they were the source of the leak.

2) The Hon $%#@^*&% A()*&$@#@ MP or one of his staffers leaked the report. S/he was asked to raise questions about it in parliament. .......though was unresponsive and unwilling to ‘go there.’ but decided to leak the reports regardless.

In court, the prosecution admitted that the case against Kessing was circumstantial but maintained that Kessing was the source of the leaks. He denied this. In addition Kessing’s barrister made the point that he could see nothing wrong with exposing our government agencies to criticism if the criticism was justified through maladministration and/or incompetence.

Under oath Kessing’s former boss John Velastro testified that there was nothing of any value in the reports which was why he didn't act upon nor pass them on. This despite the fact that Wheeler in the meantime had come to quite a different conclusion.

The problem for Kessing though was that notwithstanding the above the jury had been instructed by Judge James Bennett that there was no ‘public interest’ defense available to Kessing. He either didn’t do it or did do it – in the latter case the fact that he had brought to light a report that had been buried for 30 months and publication of which had led to a major overhaul of airport security was to be of no significance.

ON 27 March 2007, after three days of deliberations, the jury found Kessing guilty of leaking a classified Customs report in breach of the Commonwealth Crimes Act.

The Crown Prosecutor, Lincoln Crowley argued that "...a custodial sentence was necessary to deter other potential whistleblowers amongst the public service..". On 22 June 2007 Kessing was given a nine-month suspended jail sentence.

Said Judge Bennett: "Whether or not it is appropriate to view the offender in the heroic light in which he has been bathed by some ... there is no justification for communicating the contents of the reports."

Kessing can only shrug his shoulders: “It basically shows that anybody who knows of maladministration or corruption either in the private or the public sector, would be well advised to say nothing, do nothing, keep your head down and look after your career and your mortgage. It takes away the individual's responsibility and participation in what was once a constitutional democracy. We are being governed by fear at the moment. I would not have thought it would happen in a country like Australia.”

Kessing says that the trial has taken a tremendous toll on him and his family. at least for the duration of the trial. He says the pressure was too much for them to handle. He says that they were particularly shattered when during trial they found out that the police had been tapping their personal phone conversations for six months. ‘My mother was dying during that time. Our calls were intensely personal, and the Australian Federal Police just sat in and listened to everything. What on earth were they hoping to get? I was retired. The reports had already been leaked.”

As an example of the personal toll this was taking on the family, Kessing also mentions the AFP calling his brother's wife seeking a key to his mother's home so that they could search it. "We know that your mother-in-law has just died, we'll be discreet,” Kessing quotes the AFP as saying. “Otherwise we'll be there for a while waiting for a locksmith." When Kessing’s sister in law asked, "How did you know that," they wouldn't answer, says Kessing. “They just hung up.”

Kessing has been heartened though by the support he got from sometimes unexpected corners. Journalists rallied to raise money to help cover his legal costs. Upon Kessing’s sentencing, former Australian Secret Intelligence Service officer Warren Reed told the press who’d gathered outside the court:

"If anybody should have been in the dock today, or at least in the court, it should have been the Prime Minister and other ministers responsible for this area saying 'we're very sorry Mr Kessing', and 'we're sorry' to the court for wasting taxpayers' money in this way. They've insulted the integrity of a fine Australian public servant." [CHECK IF THERE IS VIDEO OF THIS]

In October last year, then Opposition leader Kevin Rudd said Mr Kessing's conviction was one of the reasons a Labor government would introduce "best practice" laws to protect whistleblowers.

"Access to government information and decision-making are keys to a healthy and vibrant democracy," Mr Rudd said. "It also means that members of the community can obtain reasonable access to government records and documents that affect their lives."

Apparently not much has changed since Labor came to power. On May 12, 2008, New Matilda wrote:

“In the run-up to last year's Federal election, the Labor Party highlighted Kessing's case when it committed itself to bringing in legal protection for public servants who make unauthorized disclosures in the public interest. What was leaked on airport security, and confirmed by Wheeler, has made all Australians inordinately safer, yet Kessing's life is being systematically trashed. There's no other way of putting it. The new Government has been in office for nearly six months and we still haven't seen the whistleblower legislation, or any inclination on the part of Canberra to help Kessing.”

Kessing has appealed his conviction. The appeal will be heard on 2 October 2008.