OZ's MERRITT et al on KESSING .

http://www.theaustralian.news.com.au/story/0,,24321246-17044,00.html

The AUSTRALIAN Chris Merritt | September 10, 2008

WHEN Allan Kessing endorsed the latest plan to protect public service whistleblowers, he was almost uninterested. Even if the federal Government gives immediate legislative form to the scheme that was unveiled yesterday, it will be too late to save this former Customs officer.

Whistleblower Allan Kessing at his Blue Mountains home west of Sydney. Picture: Amos Aikman

Kessing has already felt the full force of what the government of Australia can do to public servants who reveal ineptitude and maladministration. He has been investigated repeatedly by the Australian Federal Police, dragged into court and left with a criminal record and crippling legal bills, all for alerting the community to lax airport security.

And his ordeal continues. Kessing is still clocking up legal bills in an attempt to overturn his conviction for leaking documents to this newspaper in 2005.

At last count, he was expecting the appeal to cost $40,000 to $50,000. And he is still carrying a debt of $12,500 from his trial, despite a public appeal among journalists that helped defray $40,000 in legal costs.

"Basically, my entire super is gone," Kessing says.

A new law from a new Government may protect others but it will do nothing for Kessing, who is bitter about how he has been treated. "I have been made a scapegoat by a praetorian guard that was more interested in protecting the rat king than the citizenry," hesays.

In Kessing's view, the "praetorian guard" is the Australian Federal Police. "As we saw in the (Mohamed) Haneef thing, it's a purely political body and it has been used in the most outrageous political manner," he says.

To many, Kessing's bitterness is understandable. Even if he did what he is alleged to have done - which he denies - some would say he deserves a commendation, not a criminal record.

When the documents at the heart of the affair remained inside the Customs bureaucracy, nothing was done to address lax security. Once they were published in The Australian, the former government spent $200 million trying to fix the problem. It also unleashed the AFP on Kessing.

The affair was one of the factors that persuaded Labor to include whistleblower protection in its policy for the last year's federal election.

That policy was explicit: "Where a person has exhausted all legitimate mechanisms and avenues of complaint, and still finds that through the force of extreme circumstances they are obliged to disclose information to third parties such as journalists, protection by a court may still be provided dependent upon the circumstances."

The impact of this policy extends beyond the public service. If public servants are protected from criminal charges when they provide material to the media, journalists would also benefit. They would be far less likely to be roped into court cases and asked to reveal their sources in the public service.

Media lawyers say the indirect effect of a new whistleblower law could be to do more to keep journalists out of court than the previous government's shield law for journalists, which is widely seen as ineffective.

But the question of whether Labor's promised law will in fact protect public disclosures to the media will depend on how Labor fills in the gaps in its policy. And there are plenty of those.

Does the policy's use of the word legitimate, for example, open the way for public servants to go to the media in certain circumstances before exhausting all internal appeal mechanisms? What are the limits on the type of concerns that whistleblowers will be permitted to raise with the media?

And what happens to those whistleblowers who go to the media with concerns that they cannot prove or that later are found to be factually incorrect?

The plan unveiled yesterday by Special Minister of State John Faulkner seeks to answer those questions. It has been drawn up by a team of academics led by A.J. Brown of Griffith University and is part of a three-year project backed by the Australian Research Council. It is contained in a report called Whistleblowing in the Australian Public Sector and it is already clear it will influence the type of legislation that is eventually introduced by Faulkner.

A more important influence will be Labor's Mark Dreyfus QC, who is running a separate inquiry into whistleblower laws for the legal and constitutional affairs committee of the House of Representatives. The Dreyfus committee has been asked to prepare a preferred model whistleblower law. But Dreyfus is also aware of what Brown has been doing.

The Brown report has been unveiled midway through that committee's public hearings, a fact Dreyfus described as "very, very convenient".

What Brown has proposed is a three-stage system aimed at giving government agencies a strong incentive to address internal complaints about misconduct. If the scheme is implemented, agencies that ignore complaints by public servants about misconduct risk intervention by a powerful outside agency.

That agency, which might be the Commonwealth Ombudsman, would be vested with extra powers and would need to be notified of all internal public interest disclosures by public servants. It would have the power to manage how an agency investigated each disclosure and could even take over the investigation. And if complaints remained unaddressed, public servants who took their concerns to the media would be protected from legal liability.

But the scheme would not cover every complaint, only those that raised allegations of wrongdoing that were against the public interest. The sort of wrongdoing that could safely be disclosed to the media includes crime, corruption, abuse of power, breach of trust, conflict of interest, official misconduct, negligence, incompetence, financial waste and anything that poses a risk to public health, safety or the environment.

In at least one area, Brown's proposal is even more protective of public servants than Labor's pre-election policy. Brown is not persuaded there is a need to ensure disclosures to the media are substantially true before they would gain the benefit of his scheme. Labor's policy required whistleblowers to first go through internal channels. It then would protect public servants whose accusations were eventually vindicated.

Brown agrees whistleblowers should first try to have their concerns dealt with in-house. But he believes the second leg of Labor's test, which requires the disclosures to be true, is too restrictive. "Proving that an allegation of wrongdoing was 'substantially true' may also be a difficult challenge, particularly if the whistleblower has to satisfy a court or tribunal of this matter when seeking compensation or resisting criminal prosecution or civil action," the report says.

Instead, the report proposes that whistleblowers should be protected if their disclosures are true or if they held an honest and reasonable belief that their disclosures revealed wrongdoing.

Even before the Brown report was made public, some senior public servants had been worried about the prospect of a law that would protect whistleblowers who went to the media. The Attorney-General's Department and the Australian Commission on Law Enforcement Integrity even told the Dreyfus committee they preferred a system in which public servants would not be protected if they went to the media.

On the other side of the debate, media lawyers and the journalists union are pushing for Faulkner to adhere to Labor's pre-election promise and - in some areas - to go evenfurther.

Media, Entertainment and Arts Alliance federal secretary Christopher Warren says Brown's proposals appear to be a step forward. "This is the first time there has actually been any recognition that whistleblowers have any rights," Warren says.

But he says there will be risks involved in requiring public servants to exhaust internal complaint-handling mechanisms before contacting the media.

"Most people who contact the media have already made a judgment that there is no point going internally," Warren says. "Most whistleblowers who come to the media would have preferred to have their concerns dealt with internally."

Faulkner, while launching the Brown report yesterday, skated over the issue of whether Labor intended to protect disclosures to themedia.

"A particularly contentious issue is whether disclosures should continue to be protected public interest disclosures if they are made to third parties, including the media, and in what circumstances (if any) disclosures should be justified, protected and permitted," Faulkner says. "These are difficult, complex and challenging issues."

Brown, however, is not so reticent. He says his scheme has been designed to ensure that government agencies are encouraged to deal internally with complaints about misconduct.

The incentive to drive that outcome is legal protection for public disclosures to the media, Brown says.

In practice, the proposed system would mean that the Commonwealth Crimes Act would continue to criminalise disclosures to the media that fall outside the definition of public interest disclosures. But the Crimes Act prohibition would not apply to public interest disclosures to the media.

"A lot of government agencies, even at a commonwealth level, should already have systems in place for looking after their whistleblowers, and they don't," Brown says.

"So the question is, what are the big drivers that will help make sure that happens? It's the risk of the public whistleblowing that helps create the driver for making organisations do it properly. You have to have that public whistleblowing recognised in order to have internal whistleblowing dealt with more constructively. At the moment, an organisation can sit back and say: 'We are going to sweep this under the carpet."'

Brown believes public service managers are aware that complaints about misconduct can not be made public by public servants unless they are prepared to risk being prosecuted.

Media lawyer Peter Bartlett told the Dreyfus committee of another reason there should be no requirement to exhaust internal complaint-handling systems before going to the media. He pointed out that several deaths and problems with medical procedures at Bundaberg Hospital had been the subject of internal complaint-handling for two years before they became public.

"If they had been made public earlier, then things could have been a lot different for a lot of people," Bartlett says.

All this is much too late for Kessing.

But if Labor adopts the broad structure of the Brown report, Kessing may well be the lastpublic servant to be punished, rather thanlionised, for revealing serious flaws in public administration.

Chris Merritt is The Australian's legal affairs editor.

http://www.theaustralian.news.com.au/story/0,,24316296-2702,00.html

The AUSTRALIAN Chris Merritt, Legal affairs editor | September 09, 2008

THE Rudd Government will today unveil a plan for a national overhaul of whistleblower laws, which would abolish criminal penalties for public servants who reveal crime and misconduct to the media.

Instead of penalising whistleblowers for unauthorised disclosures, the scheme would protect them from liability and give them the right to legal redress and financial compensation if they suffer reprisals.

By protecting whistleblowers from criminal sanctions, the scheme would reduce the risk of journalists being threatened with prison for refusing to identify their bureaucratic sources.

The plan is outlined in a report to be launched this morning by Special Minister of State John Faulkner, who is overseeing the Government's promised introduction of whistleblower laws.

The plan was welcomed yesterday by former Customs officer Allan Kessing who was convicted last year of revealing to The Australian airport security flaws - a charge he denies.

"I fully endorse it. It is less about protecting the individual and more about protecting the public interest," Mr Kessing said.

The report, by a team of academics led by AJBrown of Griffith University, calls for an extensive overhaul of public service management systems aimed at forcing the bureaucracy to be more responsive to internal complaints about maladministration.

Dr Brown said that if the scheme had been in force last year it would have given Mr Kessing a powerful defence.

"If Kessing did what he is alleged to have done, this scheme would have given him a fair day in court to argue that what happened was a public interest disclosure," he said.

The scheme drawn up by Dr Brown's team is intended to provide the framework for a network of laws throughout the nation that would recognise the legitimacy of public interest disclosures.

It would protect public servants who tell the media about a broad range of misconduct including crime, corruption, abuse of power, breach of trust, conflict of interest, negligence, incompetence, financial waste and anything that endangers public health, safety or the environment.

Even if their disclosures turned out to be wrong, whistleblowers would still be protected from liability so long as they had acted in the honest and reasonable belief that they were revealing wrongdoing.

The scheme aims to encourage government agencies to deal with maladministration internally by holding out the threat of public disclosure in the media if they fail to act.

Agencies that fail to address internal complaints about maladministration would risk intervention by a powerful agency that would be responsible for administering the scheme.

This oversight role could be vested in an existing organisation rather than a new institution, Dr Brown said.

The report, Whistleblowing in the Australian Public Sector, is expected to influence the outcome of a separate inquiry into whistleblower laws by the House of Representatives committee on legal and constitutional affairs.

Labor's Mark Dreyfus QC, who chairs that committee, said last month that the Brown report was "very, very convenient".

"They have conducted a whole range of research that we will be able to make use of," Mr Dreyfus said.

Dr Brown, who has led a three-year research project on reforming whistleblower laws, is the son of the late Wallace Brown, who worked in the Canberra press gallery from 1961 to1995.

http://www.theaustralian.news.com.au/story/0,,23594070-30541,00.html

The AUSTRALIAN Chris Merritt | April 25, 2008
http://www.theaustralian.news.com.au/story/0,,24139086-17044,00.html

The AUSTRALIAN Chris Merritt, Legal affairs editor | August 07, 2008

MOVES to make governments more open and accountable gathered momentum this week when Attorney-General Robert McClelland called a third inquiry into government secrecy and the protection of public sector whistleblowers.

"We are committed to open and accountable government and want to ensure that Commonwealth information is only protected where there is a legitimate reason for doing so," Mr McClelland said this week.

The latest inquiry, to be run by the Australian Law Reform Commission (ALRC), has been convened just ahead of this month's launch of public hearings on whistleblower protection.

Those hearings are being run by the House of Representatives committee on legal and constitutional affairs which is chaired by Labor's Mark Dreyfus QC.

The committee's report is expected to outline the framework for the Government's promised new law protecting whistleblowers in the federal public service.

The states are also about to come under pressure to improve their treatment of public servants who make unauthorised disclosures in the public interest.

A team led by A.J.Brown of Griffith University will next month release a report on how to reform the nation's inconsistent network of whistleblower laws.

This exercise, known as the Whistling While they Work project, is backed by the Australian Research Council, several government ombudsmen and five universities.

It will be launched by special minister of state John Faulkner, who with Mr McClelland has responsibility for the Government's whistleblower project.

The ALRC inquiry, which is intended to complement the work of the Dreyfus committee, is aimed at ensuring a consistent approach to government secrecy across all federal agencies.

Mr McClelland has asked the ALRC to ensure that whatever options it develops are "balanced against the need to maintain an open and accountable government through providing appropriate access to information".

The ALRC has specifically been asked to examine how the secrecy provisions of the Commonwealth Crimes Act -- the law that was used last year against airport security whistleblower Allan Kessing -- interact with other laws and practices "including those relating to secrecy, privacy, freedom of information, archiving, whistle-blowing, and data-matching".

Mr Dreyfus said he was looking forward to the final report of the Whistling While They Work project.

"It is very, very convenient," he said. "They have conducted a whole range of research that we will be able to make use of."

Mr Dreyfus was also attracted to the idea of a consistent approach by all governments.

"It is desirable to have a fairly consistent regime for all people in the public sector so the standards -- and I hope they would be high standards -- would apply in all jurisdictions," he said.

The committee's terms of reference state that the type of disclosures that could be protected include allegations of illegal activity, corruption, official misconduct, breach of public trust, scientific misconduct, wastage of public funds, dangers to public health and safety and dangers to the environment.

Mr Dreyfus said his inquiry would be a "short, sharp exercise".

"We have the advantage that there is whistleblower protection legislation in many countries as well as in some states, so we are not needing to invent this from scratch," he said. "There is currently only very piecemeal protection in the Australian government sector."

Mr Dreyfus said he hoped the report would lead to legislation next year, perhaps called the Whistleblower Protection Act or the Public Interest Disclosure Act.

The committee will hold public hearings between August 21 and September 25. Submissions close tomorrow.

Canerra Times PREJUDICE:
AFTER being trounced in court by a mere journalist, it is completely understandable that the Commonwealth Director of Public Prosecutions has gone to ground.

Nobody from that office is prepared to talk about how the DPP copped such a hiding in its prosecution of Elisabeth Sexton and Fairfax Media, publisher of The Sydney Morning Herald.

All that the DPP was offering yesterday was a written statement pointing out that there had been no suggestion that the prosecution did not have a proper basis; they were considering whether to appeal; and Sexton was still criticised, despite being exonerated.

It is to be hoped that somebody in government is able to extract a few more answers from the DPP, because, on the face of things, this case is screaming out for a little law reform.

The public can only speculate about why the DPP came a cropper. But it looks like the loss might have been due to a mixture of bad law and bad litigation.

On the law, the DPP appears to have fallen victim to the inconsistency and lack of rigour that are hallmarks of the law of contempt. These problems have long infuriated the media. But taxpayers now have a quarter of a million reasons for lining up with the media and calling for a little more certainty about this body of law.

After losing the Sexton case, the DPP was lumbered with legal costs that are likely to be about $250,000. Even if the loss is attributable to the confusing state of the law, rather than any failing by the DPP, the prosecutor should have been a shoo-in on legal costs. The case was before NSW Supreme Court judge Roderick Howie, a man with firm views about the media.

Although he found Sexton and Fairfax not guilty of contempt, Howie is on record as longing for a change in the law to make the media pay for retrials triggered by negligent reporting.

Even though he found the article at the heart of the case was not a criminal contempt of court, he didn't like it. It was "gratuitous and unfair".

In an unauthorised early draft of his judgment, he had even referred to Sexton as being either arrogant or incompetent. He later expressed regret, but never apologised. So how could the DPP lose on costs? The simple answer is that they had a great opportunity to stick Fairfax with the legal bill - and they botched it. When the DPP applied for costs in its favour, it relied on the wrong law.

They then left Howie nowhere to go because they neglected to include the standard fall-back argument inviting the judge to exercise his discretion when awarding costs.

The Sexton prosecution has been ludicrous from the beginning. It started when Bob Sorby, a judge of the NSW District Court, objected to one word - literally - in an unremarkable article of Sexton's about a criminal trial before Sorby. Sorby aborted the trial and the DPP, which had been running the prosecution, took criminal contempt action against Sexton and Fairfax Media.

Unfortunately, it looks like the DPP might have believed that once a judge had aborted a trial, it was almost certain that the author and publisher of the article in question would be easy meat. After all, the cost of aborting any trial runs into thousands of dollars and adds to delays in the criminal justice system. It is only logical to assume that the judge would not have made his order lightly.

But here's where the inconsistency comes in. Sorby's reasons for the decision to abort the original trial relied on nothing more than his discretion.

But a criminal conviction for contempt must be proved beyond reasonable doubt - a much more rigorous test. If the law had required Sorby's original decision to abort the trial to be based on the same test - or was at least made subject to appeal - much of the waste associated with this case could have been avoided.

Sorby, according to Howie, was not wrong. It's just that his decision relied on a different test.

Allowing judges to abort trials based on nothing more than their discretion is an indulgence that taxpayers can ill-afford. In the Sexton case, the exoneration of the man who was standing trial before Sorby was delayed; the Sexton prosecution will cost taxpayers $250,000; and even though Fairfax won, Supreme Court rules mean it will never be able to recover all of its costs.

Help whistleblowers

THERE is a precedent for pardoning convicted whistleblower Allan Kessing. On December 6, 1972, Gough Whitlam and Lance Barnard set free seven draft resisters who had refused to allow themselves to be conscripted into the army for service in Vietnam. Under the government of Billy McMahon, those draft resisters had broken the law. Whitlam had been elected to office four days earlier on a policy of ending conscription. He implemented that promise at the earliest possible time.

Kevin Rudd was elected to office last year promising to protect whistleblowers in the federal public service. It's time to use that mandate.

http://www.news.com.au/adelaidenow/story/0,,23640505-5006336,00.html

WHEN 16 police officers raid a city building you might expect a dastardly criminal is inside – perhaps one of Australia's most wanted or even an al-Qaida suspect.

At the very least you would expect they are looking for a villain who is a clear and present threat to public safety.

Not in Perth. There, such a major raid is deemed appropriate to hunt down people who embarrass the State Government.

In a disgraceful affront to Australia's right to know, the raid was not on a criminal headquarters but on a newspaper office.

Sixteen police officers raided the offices of The Sunday Times on Wednesday, questioning journalists, commandeering paperwork and noting who left the building during the raid.

The crime? The Sunday Times (a News Ltd publication and a sister newspaper of the Sunday Mail) reported on a State Government decision to spend $16 million on advertising, allegedly to support its re-election campaign.

The four-hour raid, the second on the The Sunday Times in a month, aimed to find the source of the story.

This outrageous intimidation is symptomatic of governments across Australia being paranoid about negative publicity and their obsession to control reports about themselves. Many times, they don't want you to know the truth – they want you to know their version of the truth.

Which is why they hire ever-increasing armies of spin doctors to bury government negatives, amplify positives, control the flow of information and muscle any journalist who has the temerity to question the official line.

While the public may have little sympathy for journalists, they should worry about politicians who are prepared to countenance police rifling through journalists' notebooks and desks.

Such tactics were common to dictatorships but were anathema to Australia – until recently.

Australian governments are feeling increasingly emboldened to intimidate those who would like to shine a light on government waste, stupidity and excess. It's not going to work.

Last year, former Customs officer Allan Kessing was convicted of leaking long-ignored reports on lax security at Australian airports.

He denies leaking the reports but their publication in The Australian in 2005 severely embarrassed the previous federal government and forced it to spend $200 million on improving airport security.

In 2007, two Herald Sun journalists, Michael Harvey and Gerard McManus, were convicted of contempt of court for refusing to disclose the source of a story that the federal government planned to withhold $500 million of benefits to war widows and veterans.

Two powerful stories in the public interest; three men with criminal convictions – is this right?

Politicians must not trash Australia's proud tradition of free speech and a free press just because they do not like a headline. Australians will not tolerate this.