DREYFUS Precis

P 116

Case study The obligations of agencies: Mr Allan Kessing Background
On 29 June 2007, Deputy Chief Justice Bennett of the New South Wales District Court sentenced Allan Robert Kessing to a suspended period of nine months imprisonment for an offence against s 70 of the Crimes Act 1914.
While Mr Kessing was working with Customs, he had drafted and circulated documents relating to security at Sydney airport. These reports had been submitted to line management at the airport but senior managers in Canberra were not aware of their existence. Details of the documents later appeared in the press.
The charge against Mr Kessing was that he had published or communicated the contents of those documents when he ceased to be a Commonwealth officer, and it was his duty not to disclose that information.
After sentencing, Mr Kessing warned that anybody who knows of maladministration or corruption … would be well advised to say nothing, do nothing, keep their heads down and look after their career and mortgage.40
Much attention was focused on the apparent irony that Mr Kessing ended up with a criminal record but the leak resulted in a major review of airport safety and security by Sir John Wheeler after which the Government implemented a $200 million package to improve airport security. In some circles, Mr Kessing is considered a ‘hero’.
Discussion
It is common for people who detect criminal activity, maladministration or corruption to take the matter up with their line managers in the expectation that line managers will take action. Line managers may not necessarily have the same understanding of the importance of an issue as the person raising it. Staff members may have expectations about what line managers should do when presented with information, yet those expectations might not be met.
Informal reporting is normal and acceptable, but there must be a reporting scheme that opens pathways to bypass line management and to formalise matters of concern. In this case, such a scheme could have provided an opportunity to press the issues of concern directly to senior management or to an oversight agency.

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House of Representatives - Email alert service
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Issued by: House of Representatives Liaison & Projects Office, Wednesday 25 February 2009
Report recommends a comprehensive scheme for Commonwealth whistleblowers
The House of Representatives Legal and Constitutional Affairs Committee today released its report of the inquiry into whistleblower protection for the Australian Government public sector. The report, titled Whistleblower protection: a comprehensive scheme for the Commonwealth public sector, recommends that the Australian Government introduce new dedicated legislation to facilitate the making of public interest disclosures and strengthen legal protection for whistleblowers in the Commonwealth public sector.
The Chair of the Committee, Mr Mark Dreyfus QC MP noted that specific Commonwealth legislation on public interest disclosures is overdue. “The Commonwealth is the only Australian jurisdiction that does not have legislation to encourage public interest disclosures. While some limited protections are available to whistleblowers employed by Australian Public Service agencies, evidence to the inquiry indicates that those protections are grossly inadequate”.
“The current legal framework and organisational culture discourages public servants from speaking out against what they consider to be illegal or improper conduct in the workplace. People who raise allegations of misconduct could be exposed to serious criminal or civil liability. The Committee considers that a comprehensive public interest disclosure system is needed. The system should include Commonwealth public sector employees, contractors and consultants and provide statutory protection against detrimental action, and immunities from civil and criminal liability. Public interest disclosure legislation should play a central role in identifying and addressing wrongdoing in the public sector”, Mr Dreyfus said.
Other key areas of recommendations in the report available at http://www.aph.gov.au/house/committee/laca/whistleblowing/report.htm include:
§ That the new legislation be called Public Interest Disclosure Act, with the primary purpose of promoting accountability and integrity in public administration (Recommendations 1-2);
§ That the system comprise a two stage process of internal and external reporting with the Commonwealth Ombudsman to oversee of the administration of the Act (Recommendations 15-18);
§ That agencies have obligations to act of the disclosures they receive (Recommendation 16); and
§ That in certain circumstances, disclosures made to third parties such as the media, legal advisors, professional associations and Members of Parliament, should be protected (Recommendations 19-25).
Press conference:
The Chair of the Committee, Mr Mark Dreyfus QC MP and Committee members will conduct a press conference following the presentation of the report in the House of Representatives. Experts on whistleblower law, Dr AJ Brown of Griffith University and Peter Roberts of Charles Sturt University will be at the press conference to offer analysis of the Committee’s report.
Details of this morning's press conference:
Time and date: 11:30am – 12:45pm, 25 February 2009
Location: Committee room 1R4, Parliament House Canberra.
Internal broadcast: HMS 95.1 FM
Webstreaming: http://webcast.aph.gov.au/livebroadcasting/
For interview:
Contact the Committee Chair, Mr Mark Dreyfus QC MP on (02) 6277 4305 (Canberra) or in his electorate on (03) 9769 1955. Or Mr Dreyfus’ media adviser, Tim Lisle-Williams on 0431 178 280.
For background information, including the full terms of reference, please visit the inquiry website at www.aph.gov.au/laca or contact the Committee Secretariat on (02) 6277 2358.