Reality Circustag:circus.waddayano.org,2009:/blog//32009-04-11T09:49:49ZAll the fun of the circus, but the clowns are all realMovable Type 3.33DREYFUS Precistag:circus.waddayano.org,2009:/blog//3.10312009-04-11T09:28:31Z2009-04-11T09:49:49ZP 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...Scabious Knapweed
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.
Post DREYFUS Commenttag:circus.waddayano.org,2009:/blog//3.10292009-04-11T08:57:40Z2009-04-11T09:00:34ZBreathing space for lazy and corrupt Chris Merritt | February 26, 2009 THE Dreyfus committee's proposed federal whistleblower law is a good first effort. Once its obvious flaws are fixed, it should work. If Labor has the courage to build...Scabious Knapweed
Breathing space for lazy and corrupt Chris Merritt | February 26, 2009
THE Dreyfus committee's proposed federal whistleblower law is a good first effort. Once its obvious flaws are fixed, it should work.
If Labor has the courage to build on this foundation, it will have a real shot at delivering on its promise of a new era of openness. But as things stand, the committee's scheme has a dreadful shortcoming: it provides breathing space for public servants who are lazy, corrupt or inept.
That, of course, is not the intention. But it will flow directly from the committee's plan to exclude corruption and maladministration from the very small category of matters that whistleblowers could disclose to the media.
Mark Dreyfus wants to decriminalise leaks to the media in just two categories: those concerning an immediate threat of serious harm to public health and safety. All other disclosures of wrongdoing - even those concerning moderate threats to public health and safety - would continue to generate criminal penalties if they made it into the public domain.
The committee hopes these matters will stay inside the bureaucracy and be dealt with confidentially by an enhanced complaint-handling system.
And if it doesn't work? Those with concerns about public health and safety could still go to the media and enjoy legal protection from liability.
This is great news for the next Allan Kessing - whose conviction for revealing lax airport security could never be repeated. But what about the next Desmond Kelly? He was chased through the courts after Melbourne's Herald-Sun accurately reported that the Howard government planned to shortchange war veterans by clawing back $500 million in proposed pension rises.
Every war veteran should be appalled by this bipartisan committee's assessment that the public interest in the Herald-Sun's disclosure was "debatable". Kelly's conviction was overturned on appeal. But under the Dreyfus plan, this sort of leak - which led directly to better pensions for war veterans - would still risk a criminal penalty because it falls outside the exceptions.
Without change, it is just a matter of time before another public servant is prosecuted for distinguishing between the public interest and the private interest of politicians.
If the goal is to encourage the bureaucracy to respond quickly to whistleblowers, the scheme needs to impose a credible threat that all public sector ineptitude could finish up on the front page of the newspapers.
DREYFUS Report Commenttag:circus.waddayano.org,2009:/blog//3.10282009-04-11T08:54:42Z2009-04-11T09:00:34ZLabor's Mark Dreyfus focus of media anger Chris Merritt, Legal affairs editor | March 25, 2009 THE federal Government came under sustained attack by senior media figures yesterday over concerns that it will not go far enough in protecting whistleblowers...Scabious Knapweed
Labor's Mark Dreyfus focus of media anger
Chris Merritt, Legal affairs editor | March 25, 2009
THE federal Government came under sustained attack by senior media figures yesterday over concerns that it will not go far enough in protecting whistleblowers in the public service.
Senior Labor backbencher Mark Dreyfus was the target of criticism over proposed whistleblower reforms that were labelled "pathetic" by Nine Network journalist Laurie Oakes.
Oakes told yesterday's Right to Know conference that a scheme drawn up by a parliamentary committee chaired by Mr Dreyfus would not improve the protection for whistleblowers.
The scheme, which is being considered by the Government, would provide increased protection for whistleblowers who keep their concerns within the public sector hierarchy.
But those who make disclosures to journalists would still be liable for criminal prosecution unless their disclosures concern an immediate threat to public health and safety.
They would first need to exhaust internal complaint-handling mechanisms.
"Unless your source has gone through a bureaucratic rigmarole set out in Mark Dreyfus's report, it actually reduces the chance of a judge deciding to protect a source," Oakes said. "I don't think this is going to help."
Oakes's concerns were in line with those of Paul Whittaker, editor of The Australian, who told the conference that the scheme would not be of assistance.
Whittaker said the proposed whistleblower reforms went hand in hand with the Government's proposed shield law for journalists' sources, which also failed to go far enough.
He said Labor's shield law proposals would be difficult for journalists to use unless they were prepared to persuade a judge by "giving clues" about the identity of their confidential source.
The Government's shield law proposal, which was unveiled by Attorney-General Robert McClelland, is part of Labor's policy aimed at reforming access to government information.
That policy was drawn up after Labor, while in opposition, criticised the previous government for its pursuit of airport security whistleblower Allan Kessing.
Legal academic A.J. Brown told the conference in Sydney that he doubted whether the proposed whistleblower scheme would have been enough to protect Mr Kessing had it been in force at the time of his conviction.
Dr Brown said the scheme drawn up by the Dreyfus committee had many strengths but there were also "blanks and weaknesses".
"It would be highly arguable that Allan Kessing would not be covered by the scheme as currently framed," Dr Brown said.
Whittaker called on Mr Dreyfus to explain why the Government had opposed moves by Mr Kessing to seek special leave to appeal to the High Court with the goal of striking down the criminal penalties for all leaks by commonwealth public servants.
Mr Dreyfus said he was very interested in Mr Kessing's High Court challenge, which is aimed at overturning his conviction for leaking two long-ignored reports on lax airport security.
He said the criminal penalties for unauthorised disclosures by public servants were currently the subject of a review of government secrecy laws by the Australian Law Reform Commission.
"I hope there will be a report later this year. But my personal view is that these provisions do not match the kind of society that we have," he said.
He said the whistleblower reform proposals were "a brand new scheme" that had no predecessor at a federal level. He said it had been designed to take account of the fact that most public servants preferred to have their concerns dealt with internally.
"The media is only a small part. The safety valve of going to the media is only as a last resort," Mr Dreyfus said.
Bikie Brawl Mark DODD - The Australiantag:circus.waddayano.org,2009:/blog//3.10272009-04-11T08:52:58Z2009-04-11T09:00:34ZMark Dodd | March 25, 2009 The Australian FOUR men had been arrested, police had arrived and were taping off the public concourse area of the departure terminal, but the woman's voice quivered with nervousness at what she had just...Scabious Knapweed
Mark Dodd | March 25, 2009 The Australian
FOUR men had been arrested, police had arrived and were taping off the public concourse area of the departure terminal, but the woman's voice quivered with nervousness at what she had just witnessed: a vicious killing in full public view at Sydney airport.
The horror was fresh, the images indelibly fixed and the words tumbled out freely.
"It was awful, I'm sick, it was appalling, I've never seen anything like it in my life," the witness told me. "Babies were getting knocked out of strollers, they were fighting all through here. It was gangs. They were bashing one man with those (chrome) stands you can see over there."
I had arrived at terminal three to catch a flight to Canberra about 20 minutes after Anthony Zervas, 29, was bludgeoned to death last Sunday afternoon. Australian Federal Police had arrived in force but too late, 15 minutes after the deadly brawl had ended and most of the perpetrators had escaped by taxi.
AFP Commissioner Mick Keelty later described their response time as acceptable. It's unlikely to be a view shared by Qantas check-in staff or the scores of terrified customers queuing for flights last Sunday. Three days on and the circumstances of the gruesome killing continue to raise more questions than answers.
Why were police notified of the deadly bikie brawl only after receiving a 000 call from a member of the public?
Given the density of closed-circuit television cameras scattered throughout the airport terminal - supposedly one of Australia's most secure - why did the first police officers arrive after the 15-minute brawl was over and most of the attackers had fled?
And, crucially, why were no police on hand at gate five to escort the bikies away as they arrived off a Melbourne flight? It's now known Qantas cabin crew had expressed concern about the potential for strife during the flight to Sydney.
Respected security analyst Alan Behm thinks he has some answers. There was a security failure on Sunday; a man was killed at the airport, he says. But deploying more police to the airport is simply a knee-jerk reaction to a more complex problem, Behm tells The Australian.
Airport security at Sydney and most other capital cities across Australia is geared to prevent an act of terrorism on board a plane, he says. It all depends where you want to put the focus of your security measures: on the air side of the passenger security screening barrier or the public concourse.
"I think the solution really is to maximise the protections you've already got with the (screening) barriers by having the police on the air side rather than the public side, if not apprehending, then intervening, before those thugs got on to the public concourse after getting off the plane," Behm says.
Security protocols for an aircraft captain to radio ahead and warn of an onboard incident exist, which raises concerns about why this was not put to good effect on Sunday.
"It's a question of whether the message was put into that system. Did the purser say to the aircraft captain, 'We have a potential issue here, could you warn security?' I suspect not," Behm says.
There are suggestions police should have apprehended the bikies in the passenger departure area, but this would have posed a serious danger to the public.
"Police can't just get their weapons out and start shooting. They can't go throwing tear gas and stuff around, and even if the police went up against 12 blokes wielding these big steel bars, there's every chance they would have got beaten s--less."
Behm and fellow terrorism expert Clive Williams, of Macquarie University, agree with Keelty that police response times, on being notified of the incident, were acceptable. But it is unrealistic to expect unarmed Qantas security staff to intervene in a bikie brawl, Williams says.
At least one Qantas security official did have the presence of mind to record the numberplates of taxis departing with fleeing gang members, he says.
"He did the right thing. The police arrived essentially after these people (bikies) had fled," Williams says.
"The problem with this bikie violence is that the kind of violence these police at the airport are trained for is terrorism related and not so much gang violence. Obviously there's going to be a need to look at bikie violence more generally, not only in an airport context but the kinds of activities they are engaging in nationally, where there are wars going on between their factions."
This is all cold comfort for innocent passengers, says influential Liberal senator Bill Heffernan, who sits on the Senate standing committee for transport.
On Monday, Heffernan called for a Senate inquiry into airport safety, saying Sunday's bikie bashing raised serious public safety concerns. He tells The Australian that questions also need to be raised about what value for money taxpayers are getting in exchange for the hundreds of millions of dollars lavished on Australian airport security in the wake of the September 11, 2001, terrorism attacks in the US.
"We need to understand if this was a communications (problem)," Heffernan says. "I mean, Mick Keelty is out there saying everything is all right and I'm not going to comment on that. But what would happen if it was someone with a machinegun? You wouldn't like to think about it. It does (raise) the question in ordinary Australians' minds: What are we getting for our money?
"So rather than have a spontaneous or speculative response, I think we ought to have a Senate inquiry where witnesses can come along and know they are protected from litigation and from being threatened."
Heffernan has some direct experience with airport security and not just a few concerns. In 2007, he carried his pocketknife through Canberra airport security before alerting staff of a screening failure.
Concerns about security at Sydney airport are not new. In 2005 Allan Kessing, a former Customs airport security officer at Sydney airport, was convicted for leaking a highly damaging report about serious security breaches to this newspaper. The report dealt with a range of security concerns including the criminal records of baggage handlers, luggage theft and drug trafficking.
His actions spurred the Howard government to implement a far-reaching probe into airport security, the Wheeler report, which resulted in more rigorous security measures being implemented across the country.
But the bikie brawl has again raised concerns that more needs to be done.
AFP officials, speaking on condition of anonymity, say one area requiring immediate attention is better agreement on airport policing functions involving the AFP and their NSW Police counterparts.
"State police don't want to listen to advice from the AFP; they want to run their own race," one AFP source tells The Australian.
While the AFP has prime responsibility for security at Sydney airport, that does not include the monitoring of the CCTV cameras, a state police role.
The issue of agreement on police roles is a problem, says former Sydney Airport Corporation chief executive Tony Stewart. The AFP believed its main role was counter-terrorism, while NSW Police focused on other areas of crime, he told ABC radio.
"The weak link is the demarcation between whether this was an anti-terrorism incident or a crime incident and somebody was probably looking at the rule book, saying it's the other guy's problem," he said.
In his first comments on the airport violence, Kevin Rudd yesterday pledged "zero tolerance" for bikie crime.
"This sort of behaviour by bikies and others engaged in organised criminal activity is unacceptable in Australia, absolutely unacceptable," the Prime Minister said soon after arriving in Washington, DC. State and commonwealth attorneys-general would discuss a co-ordinated response to the bikie menace at their next meeting, he promised.
Home Affairs Minister Bob Debus says the federal Government has ordered an investigation into the adequacy of the AFP's response on Sunday in addition to a national audit of police officers deployed at airports.
Its understood that while Sydney airport has a full complement of 22 AFP officers rostered on duty on Sundays, Perth airport remains under-strength.
With the NSW Government mulling tougher anti-gang laws, federal Opposition leader Malcolm Turnbull has weighed into the debate with a call for national action to deal with criminal bikie gangs. He accuses Rudd of being overly zealous in trying to achieve budget savings, scrimping that has left airport security 35 per cent under-staffed.
"The Rudd Government has undercut airport security and national crime fighting through cuts to the Australian Federal Police and the Australian Crime Commission," Turnbull says. "The federal Government must show leadership on this issue and act in close collaboration with the states."
According to the Opposition Leader, as of June last year, the AFP had 233 state and territory sworn police officers seconded to work at the country's main airports, short of the 357 committed to at the Council of Australian Governments.
The bikie bashing is a wake-up call to the Government about a national crime problem that shows no respect for borders.
"The public (is) right to be alarmed," Turnbull says.
Post Bikie Fracas OZ Editorialtag:circus.waddayano.org,2009:/blog//3.10262009-04-11T08:50:43Z2009-04-11T09:00:34ZKeelty must respond to airport outrage March 24, 2009 The Australian Police were unprepared for a brawl, let alone a bomber WHO does Mick Keelty think he's kidding with his claim Sydney airport security was "acceptable" on Sunday when two...Scabious Knapweed
Keelty must respond to airport outrage March 24, 2009 The Australian
Police were unprepared for a brawl, let alone a bomber
WHO does Mick Keelty think he's kidding with his claim Sydney airport security was "acceptable" on Sunday when two gangs of feuding bikies fought in the domestic terminal? Whatever the Australian Federal Police Commissioner thinks, it is not acceptable for brutes to brawl in what should be the securest public place in the city. It is not acceptable for ordinary Australians to be caught up in the equivalent of a cage fight, and be forced to witness a man being beaten to death. It is not acceptable for the permanent police presence at the airport to be so slow they were informed of the fight by a triple-0 phone call and still to have allowed some of the men involved in the brawl to make their getaways by taxi. And it is not acceptable for officialdom, including Mr Keelty, federal Attorney-General Robert McClelland and NSW Premier Nathan Rees to respond with announcements of reports and reviews. We know what happened, and we know why it happened. The issue is how to stop it happening again, and on the basis of Mr Keelty's response there is scant cause for comfort about safety at Sydney airport. According to Mr Keelty, the police cannot be everywhere. But they must be at airports in sufficient numbers to patrol the terminals and to act immediately. No ifs, no buts. Security was breached on Sunday by men without weapons intent on settling a score among themselves. But what would have happened if a group of gunmen had opened fire before passing security?
What makes Mr Keelty's relaxed response more extraordinary is that Sydney airport safety obviously has not improved since 2005, when The Australian revealed a classified Customs report warning about shoddy security. The then transport minister, John Anderson, responded in much the same way Mr Keelty is doing now, by initially ducking the real issue, before being forced to bring in John Wheeler, an international aviation security expert. The Wheeler Report was scathing: "Policing at major airports in Australia is often inadequate and dysfunctional, and security systems are typically unco-ordinated," it said. Sir John proposed more police and additional security cameras at the busiest airports, plus integrated command structures to reduce the bureaucratic turf-fights and commonwealth-state conflicts that left airports inadequately unprotected. Mr McClelland, then Labor's homeland security spokesman, supported the report, saying something must be done. And the Howard government agreed, promising a raft of reforms in co-operation with the states. But while much was promised, little was delivered. Last May, by which time Mr McClelland had become one of the responsible ministers, Steve Creedy and Natalie O'Brien reported in The Australian that the co-ordinated security recommended in the Wheeler Report was not in place, and that state and federal police, plus the Australian Protective Service, were all arguing over who did what. And with the way Mr Keelty is trying to duck for cover and Mr Rees is promising more police for the state's gang squad, it seems certain everybody involved will again claim that if anybody is to blame, it isn't them. Certainly there are many issues to argue about in the aftermath of Sunday's brawl, including whether other states need South Australian-style legislation intended to stop bikies assembling, and whether the Australian Crime Commission, with just 15 full-time investigators, can provide enough over-arching intelligence on organised crime across state borders. But what happened on Sunday is straightforward. On a day when the media was reporting that warring Sydney gangs were bringing reinforcements from interstate, police at the airport were not watching for trouble.
Sunday's outrage does more than demonstrate how the authorities are not ready to protect airports, surely our prime terror targets. It also illuminates a police culture focused on back-covering. The only action undertaken with enthusiasm after the Wheeler Report was the prosecution of former Customs officer Alan Kessing, who still says he is innocent, for leaking the security warning. The AFP's persecution of Mohamed Haneef, unjustly alleged to be part of a terrorist conspiracy in 2007, similarly reflected a desire in the AFP to protect police reputations. Mr Kessing was convicted and Dr Haneef hounded out of the country, and all for nothing. Rather than pursuing people who may or may not be whistleblowers and searching for scapegoats, it is time for the agencies charged with protecting us from terror and organised violence to focus on the real risks. It appears no innocent Australians were hurt at Sydney airport - but it's no thanks to the people charged with protecting them.
CRIKEY Bikie Fracastag:circus.waddayano.org,2009:/blog//3.10252009-04-11T08:48:39Z2009-04-11T09:00:34ZAs we say at Qantas, there's no CCTV like no CCTV Canberra correspondent Bernard Keane writes: It’s a cosy world in the security industry. Steve Jackson is Qantas’s new General Manager of Security. With immaculate timing, he replaced the retiring...Scabious Knapweed
As we say at Qantas, there's no CCTV like no CCTV
Canberra correspondent Bernard Keane writes:
It’s a cosy world in the security industry.
Steve Jackson is Qantas’s new General Manager of Security. With immaculate timing, he replaced the retiring Geoff Askew this week, although Jackson has been Askew’s deputy for the last five years.
Jackson was previously a senior Australian Federal Police officer. He was operational commander during the 2000 Olympic Games and received the Order of Australia for his performance as Field Commander of the joint investigation with the Indonesians into the Bali bombings.
It’s fair to say that neither Qantas nor Jackson’s former colleague Mick Keelty have covered themselves in glory in the aftermath of last Sunday’s events at Qantas’s terminal at Sydney Airport.
In particular, the prosecution of the men involved in the incident may be endangered by the lack of CCTV footage, despite the brawl commencing in the departure lounge area and rolling into the check-in concourse. While having vision of every inch of an airport would be impossible, or prohibitively expensive, this failure of the CCTV system and its monitoring is remarkable. While not as ubiquitous as in the UK, the reliance on CCTV by security operations has increased massively in Australia in recent years. The average bank branch, for example, is covered by 12 cameras.
This is not the first time Qantas has had problems with cameras. In 2005 a Sydney baggage handler was sacked for taking a camel costume from passenger luggage, having been spotted by the owner wearing it on the tarmac. CCTV footage confirmed the theft, but Qantas promised to install more cameras both in baggage handling areas and in aircraft holds. The incident came at the time when Schapelle Corby’s lawyers were peddling a conspiracy theory that baggage handlers were using luggage to transport drugs -- a theory that couldn’t be disproven given security cameras were either not working or pointed in the wrong direction on the day she travelled.
Then-Qantas chief Geoff Dixon expressed concern about the lack of a single authority in charge of airport security, but suggested "as long as we are in charge of our own areas I think it's OK." Qantas may have a different view now.
Ex-Qantas sources say Steve Jackson was responsible for upgrades of Qantas’s camera system since 2005.
2005 was also the year that British expert Sir John Wheeler conducted an inquiry that concluded Australian airport security was "often inadequate and dysfunctional". The previous Government only began responding to the review after it was leaked to the press. One of its responses was to prosecute the alleged leaker, Allan Kessing.
As if to confirm that Jackson has absolutely immaculate timing, he recently gave an interview to Security Insider magazine. In words that have a particular prescience, Jackson observed that "one of the greatest enemies that private security ... face is complacency ... We need to be very, very careful in the Australian space, particularly, that we do not fall into a false sense of security, because at home, on home soil we might be going through a time where we are not experiencing the [same] degree of security incidents, security situations, that other countries might be."
But whatever its CCTV problems, Qantas’s role in the incident was purely incidental. The brawl could have happened anywhere. The more substantial problem is the lack of an appropriate law enforcement response to motorcycle gangs.
NSW Police and security industry sources have argued the NSW Government’s current “crackdown” on bikies will be hopelessly ineffective. Additional manpower has been sought from across Sydney for the operation, with station commanders -- in the finest bureaucratic tradition -- using it as an opportunity to offload their poorest quality officers, who are unlikely to trouble hardened gang members. Police veterans say that a more organised approach is required, due to the evolution of bikie gangs in recent years.
"The bikie structures have been taken over by Middle Eastern crime gangs," one former detective told Crikey.
"A lot of old-style bikies, who sorted out their problems without endangering the public, and mainly stuck to amphetamine production and distribution, are getting out. Middle Eastern criminal elements have moved in and use the gang structures as part of their drug importation and distribution operations. It’s very handy to have forty of your mates show up ready to rock and roll if you get into trouble. They don’t care about the police or the public. There’ll be another Milperra at some point."
Senator Nick XENOPHONtag:circus.waddayano.org,2009:/blog//3.10242009-04-11T08:47:50Z2009-04-11T09:00:34ZXenophon's push to improve shield laws http://www.theaustralian.news.com.au/business/story/0,,25281212-17044,00.html Chris Merritt, Legal Affairs editor | April 03, 2009 INDEPENDENT senator Nick Xenophon is working on a plan to force the federal Government to improve its proposed shield laws for journalists' sources. He...Scabious Knapweed
Xenophon's push to improve shield laws
http://www.theaustralian.news.com.au/business/story/0,,25281212-17044,00.html
Chris Merritt, Legal Affairs editor | April 03, 2009
INDEPENDENT senator Nick Xenophon is working on a plan to force the federal Government to improve its proposed shield laws for journalists' sources.
He hopes to mobilise Senate cross-benchers to force the Government to give more certain protection for journalists who seek to protect their sources.
Senator Xenophon is also planning to force changes on the proposed whistleblower protection laws that are being considered by the Government.
His warning about the need for change comes soon after he forced the Government to spend more money on the Murray-Darling to ensure Senate approval for its economic stimulus package.
"This is bedrock stuff in a democracy and we need to make every effort to get this right," he said.
Senator Xenophon said his tactics on shield laws and whistleblower protection were still being developed.
"But the Government knows that I am capable of being a pesky, persistent bastard. I want to be in their face on this because this is fundamental in a democracy," he said.
He said shield laws and whistleblower protection were "first-order isues".
"If you stifle the free flow of information you increase the potential for the state to abuse its power.
"If you don't protect sources and whistleblowers then the potential for maladministration, waste of public funds and abuse of power increases exponentially."
The proposed shield laws for journalists' sources, recently unveiled by Attorney-General Robert McClelland, have been criticised as "a flimsy umbrella".
The Government is also considering a report calling for a new system of whistleblower protection laws.
That scheme, which has been drawn up by a committee of the House of Representatives, would maintain a system of criminal penalties for public servants who reveal corruption and maladministration to the media.
It would give public servants protection from liability as long as they keep their concerns within an elaborate new complaint-handling system.
Legal protection would only be extended to leaks to the media if the information concerned an immediate and serious threat to public health or safety.
"We need to have effective shield laws and whistleblower laws to prevent the potential abuse of commonwealth power," Senator Xenophon said.
He believed the issue was so fundamental that he would be urging fellow cross-benchers in the Senate to take a similar approach.
Senator Xenophon said he was confident he would be able to improve both schemes. He said the proposed laws on both issues provided no more than an illusion of protection for whistleblowers and journalists' sources.
The shield law scheme would leave Australia out of step with New Zealand, Britain and the US which had more reliable schemes.
The whistleblower protection plan would have such a high threshold it would provide little real benefit for whistleblowers.
He said the whistleblower proposal and the shield law bill should be considered a failure because they would not have protected whistleblower Allan Kessing and Herald Sun reporters Michael Harvey and Gerard McMannus. All three received criminal convictions over newspaper reports that revealed lax administration or plans to shortchange war widows.
"These cases were clearly in the public interest," Senator Xenophon said.
He said one of the key failings in the shield law scheme was that it did not introduce a rebuttable presumption in favour of protecting journalists' sources.
"The legislation also fails to make reference to the right of people to the free flow of information -- which is a feature of the US and New Zealand laws," he said.
Senator Xenophon said it was anomalous that New Zealand had shield laws that were "immeasurably better" than the scheme that had been drawn up by the Attorney-General.
"If we can have a free trade agreement with New Zealand, we should take the same approach towards the free flow of information," he said.
ACCL Chris MERRITT 03/04/2009tag:circus.waddayano.org,2009:/blog//3.10232009-04-11T08:45:57Z2009-04-11T09:00:34Zhttp://www.theaustralian.news.com.au/business/story/0,28124,25281214-17044,00.html THE Australian Council of Civil Liberties supports an attempt by whistleblower Allan Kessing to have the High Court rule on the validity of his criminal conviction. ACC president Terry O'Gorman said he agreed with Mr Kessing's call for the...Scabious Knapweed
http://www.theaustralian.news.com.au/business/story/0,28124,25281214-17044,00.html
THE Australian Council of Civil Liberties supports an attempt by whistleblower Allan Kessing to have the High Court rule on the validity of his criminal conviction.
ACC president Terry O'Gorman said he agreed with Mr Kessing's call for the federal Director of Public Prosecutions to lift its opposition to Mr Kessing's application to appeal to the High Court. "I think what he is asking the DPP is both reasonable and common sense," Mr O'Gorman said.
It would be consistent with the Commonwealth's prosecution policy for the DPP to drop its opposition and clear the way for the High Court to hear the case, he said.
"If there is an issue of public interest then that should be litigated," Mr O'Gorman said.
Mr Kessing wants the High Court to rule on the constitutional validity of the criminal penalties that federal law imposes for leaks from the public service.
Those penalties, which are in section 70 of the Commonwealth Crimes Act, impose a general prohibition against unauthorised disclosures.
There are no defences, regardless of whether the information made public is trivial or in the public interest.
If Mr Kessing's challenge to section 70 is upheld it would force the Government to introduce whistleblower laws that are far more liberal than those recommended last month by a parliamentary committee.
The Government is considering a scheme that would continue to impose the section 70 penalties for all leaks from the public service except those that concern serious and immediate threats to public health and safety.
Mr O'Gorman said what Mr Kessing was asking the DPP to do was no more than what is regularly done in other cases that raise important questions of law.
If the DPP dropped its opposition, the High Court would still need to determine whether Mr Kessing's case came within the principles governing grants of special leave, Mr O'Gorman said. He said it would not be appropriate for federal Attorney-General Robert McClelland to instruct the DPP to change its approach to the Kessing case because the DPP is independent.
Mr Kessing, a former Customs officer, was convicted of leaking reports outlining flaws in airport security and given a nine-month suspended prison sentence.
He has consistently asserted his innocence.
AAP in SMHtag:circus.waddayano.org,2009:/blog//3.10222009-04-11T08:43:38Z2009-04-11T09:00:34Zhttp://news.smh.com.au/breaking-news-national/kessing-critical-of-whistleblower-laws-20090405-9soj.html Kessing critical of whistleblower laws April 4, 2009 SMH A former Customs official convicted of leaking confidential reports about failures in airport security to the media says the federal government's proposed new whistleblower laws are not enough protection. Allan...Scabious Knapweed
http://news.smh.com.au/breaking-news-national/kessing-critical-of-whistleblower-laws-20090405-9soj.html
Kessing critical of whistleblower laws April 4, 2009 SMH
A former Customs official convicted of leaking confidential reports about failures in airport security to the media says the federal government's proposed new whistleblower laws are not enough protection.
Allan Kessing was accused of leaking two highly-confidential Australian Customs Service reports to The Australian newspaper in 2005, sparking the biggest overhaul of airport security in the country's history.
Kessing was found guilty by a NSW District Court jury in March 2007 and given a suspended sentence.
Kessing denies being behind the leaks, but failed in a bid to have his conviction overturned in the NSW Court of Criminal Appeal and is now taking his battle to the High Court.
Kessing said the Rudd government's proposed laws would limit protection to whistleblowers who pass issues to their superiors and not those who go public, unless there was an imminent threat to public health or safety.
"First of all you take it to your immediate superior, they then pass it up to their superior, but what if it is your superior who is under threat? He's not going to pass it on," he told the Sunday Profile program on ABC Radio.
"Why would the person who has suppressed it be inclined to investigate it?
"It is laughable."
Kessing said whistleblowers should be allowed to take a concern to the media.
"When something is so blatant as in my case, security in an airport, when the documents have been suppressed for something so banal as a commercial reason, yes," he said.
He said a fatal bikie brawl at Sydney airport's domestic terminal on March 22 was evidence the Wheeler recommendations were not being implemented.
He said all the different law enforcement arms did not communicate with each other and there was a turf war going on.
"Well, of course, if you had joined-up policing or joined-up enforcement, that would not have occurred because when those people were coming off the plane, there would have been uniformed and if necessary armed personnel waiting to greet them," he said.
He said the climate of fear within Customs about whistleblowing had not changed under the Rudd government.
"From what my ex-colleagues in Customs tell me, no, in fact just recently there have been problems at the airport and all my ex-colleagues have been told, 'say nothing to anybody otherwise the same thing will happen to you as Alan Kessing'," he said.
Kessing said the High Court was the end of the road for his fight.
"Well my legals tell me that I have a very strong case, but then I've been told that ever since this farrago began, so I don't know," he said.
"I've done my best, I've fought the government and they've broken me.
"Personally, no. But financially, yes."
He said he was not responsible for the leaks and did not want to ask the federal government for a pardon because to do so would admit guilt.
Mr Kessing said he knew but would never reveal who had leaked the reports.
"I wouldn't dream of doing such a thing," he said.
Kessing said subpoenas should have been enforced against the two journalists who broke the story, requiring them to appear in court.
"All they would have had to do was call them and say 'will you divulge your source?' 'No'," he said.
"'Next question, was it this person in the dock?' 'No'.
"End of discussion."
Julia GILLARD Deputy PM Alan JONES 2GBtag:circus.waddayano.org,2009:/blog//3.10212009-04-11T08:42:29Z2009-04-11T09:00:34ZScabious Knapweed
http://www.deewr.gov.au/Ministers/Gillard/Media/Transcripts/Pages/Article_090326_121819.aspx
The Hon Julia Gillard MP E&OE
TRANSCRIPT INTERVIEW 2GB 715AM THURSDAY 26 MARCH 2009 ISSUES: PM meeting with President Obama; temporary guarantee of state borrowing; whistleblowers protection; Fair Work Bill; Building the Education Revolution; Bradley Review
ALAN JONES: Right. Kevin Rudd, to his credit, has said yesterday in Washington, just on this Sydney Airport carnage, that there’ll be zero tolerance of this rubbish that we’ve seen in Sydney Airport.
Back in 2005, the Australian newspaper published details of two reports relating to drug trafficking by airport staff and gaps in anti-terror security. Then followed the biggest overhaul, allegedly, of airport security in our history, so you’d question today whether the $200 million didn’t go down the drain, but the Howard Government chased the author of those reports, Alan Kessing. He was alleged to have leaked them, he’s always denied that, but he was the author of these reports. He was accused of leaking them, he denied it, the Government pursued him. He’s now a criminal - a nine month suspended sentence and guilty.
Now, Kevin Rudd spoke to Kessing in the lead up to the 2007 campaign and used that incident to rightly promise new laws to protect whistleblowers, but this bloke’s exhausted his superannuation; he’s broke. Last Sunday proved yet again the validity of what his reports were arguing. No one’s ever demanded to know, from Canberra, why the customs reports were not acted upon by senior bureaucrats or the relevant ministers. No one’s tried to find out why they were buried, but this bloke’s life’s been systematically trashed. Should your Government at least remain consistent to your support for him before the election by pardoning this man?
JULIA GILLARD: Well, Alan, obviously that’s a legal matter that’s been dealt with before we came to Government and there’s a reason we’ve got a strict separation between what Government does and what the courts do. What we’ve obviously promised - we did promise in Opposition and we are working our way through - is whistleblowers protection. And we also promised a better era of Government openness and transparency through changes to our Freedom of Information arrangements and our colleague, who would be well known to you, Senator Faulkner, obviously an important figure in New South Wales, made some important policy announcements about this at the Your Right To Know conference, which was earlier this week. So we are moving through to deliver exactly what we promised: better access to information, great Government transparency and openness, and we will move through to the whistleblowers protection legislation that is obviously needed.
ALAN JONES 2GBtag:circus.waddayano.org,2009:/blog//3.10202009-04-11T08:40:14Z2009-04-11T09:00:34Zhttp://www.streetcorner.com.au/news/showPost.cfm?bid=9814 Whistle blower Alan Kessing exposed airport security 2005 Posted 27/03/2009 at 11:46 AM by Macquarie National News In all the kerfuffle about Sydney Airport, many things are forgotten. One of them happens to be the former Customs officer Alan...Scabious Knapweed
http://www.streetcorner.com.au/news/showPost.cfm?bid=9814
Whistle blower Alan Kessing exposed airport security 2005
Posted 27/03/2009 at 11:46 AM by Macquarie National News
In all the kerfuffle about Sydney Airport, many things are forgotten.
One of them happens to be the former Customs officer Alan Kessing.
Kessing is a former member of the Customs air border security unit based at Sydney Airport.
He had been instrumental in compiling two reports in 2003 and 2004 highlighting major glitches in the security net at the country's main airports.
This included surveillance blind spots and criminal activity.
And this was only a short time after the 9/11 tragedies in the United States.
The reports were leaked in 2005 and were front page news.
As a result, the Howard Government hired a British international aviation expert, Sir John Wheeler, to look into the claims.
Wheeler confirmed the threats and vulnerabilities outlined in the reports.
And the Howard Government allocated over 200 million dollars to rectify the problem.
It appears as if it's 200 million dollars down the drain.
But Alan Kessing was targeted, he was charged.
And he was convicted.
And he was given a nine month suspended sentence.
And he was put on a good behaviour bond for two years.
Remember the bloke in the Victorian bushfires to whom I spoke.
He built a fire break around his house.
He was criminally charged and found guilty.
His house survived the bushfires, but he is a criminal.
Alan Kessing has consistently denied leaking the reports.
Now what was leaked by whomever on airport security and confirmed by Sir John Wheeler, the British international aviation expert, has led to a brand new focus on safety in Australian airports.
Yet the man who was the author of the leaked reports, who denies leaking them, but they found their way to the front page of the Australian newspaper and resulted in a whole new focus on airport security which last Sunday's carnage demonstrates was justified, the man who wrote the reports has had his life systematically trashed.
The Rudd Government's been in office for nearly 16 months.
We still have not seen the whistleblower legislation or any inclination on the part of the Government in Canberra which might help Alan Kessing.
I might add, equally shocking is the lack of interest on the part of the media or the Parliament or the community as a whole.
No one has yet demanded, in the light of what happened last Sunday, why the two Customs reports authored by Alan Kessing in 2003 and 2004 highlighting major glitches in the security net of the country's main airports ... well, in the light of what happened on Sunday, why isn't someone asking why these reports were not acted upon by senior bureaucrats.
Why weren't they acted on by the relevant Ministers way back in 2003 and 2004?
Why were they buried?
And why, now, is this man Alan Kessing still fighting for his reputation, maintaining his innocence and tragically saying that he's exhausted almost all of his superannuation to pay for his legal bills but he'll continue to fight to clear his name.
He's simply run out of funds.
What happened on Sunday at Sydney Airport confirmed everything that Alan Kessing wrote about in 2003 and 2004.
I repeat, he denies leaking the reports.
But they found their way onto the front page of the Australian newspaper and this man has been pursued through the courts, to the point of being labelled a criminal, for being the author who documented lax security at Australia's airports.
The current Government supported Mr Kessing when it was in Opposition.
It now fails to help him.
The reports on lax security at the nation's airports have long been ignored.
No one asks why.
No one prosecutes the people who ignore them.
The prosecution of this man in the light of what we saw on Sunday at Sydney Airport is shameful.
It's a prosecution that should never have happened.
He should be pardoned, if only to enable the Rudd Government to remain consistent with its support for Mr Kessing while it was in Opposition.
ABC SUNDAY PROFILEtag:circus.waddayano.org,2009:/blog//3.10192009-04-11T08:37:38Z2009-04-11T09:00:34ZThis week Allan Kessing, the whistleblower who says he's been wrongly convicted of passing on information about the parlous state of Sydney Airport security to the media. As he prepares a final appeal to the High Court, he talks to...Scabious Knapweed
This week Allan Kessing, the whistleblower who says he's been wrongly convicted of passing on information about the parlous state of Sydney Airport security to the media. As he prepares a final appeal to the High Court, he talks to Sunday Profile.
Hello, Monica Attard here with Sunday Profile. Welcome to the show.
Today I'm talking to Allan Kessing, a whistleblower who, despite his criminal conviction, says he's not.
When Allan Kessing worked for Australian Customs he was charged with writing two reports on the state of airport security in Sydney.
He sent those reports to his superiors and heard no more.
Nearly two years later, some of the content of those reports ended up on the front page of The Australian newspaper, and in a state of great embarrassment, the Howard government did two things:
It brought to Australia a leading UK security expert to investigate Kessing's claims about lax airport security which resulted in confirmation of Allan Kessing's reports, and the government went on a witch hunt, looking for the person who leaked the reports.
In the wash up it fingered Allan Kessing, himself, who was charged, tried, convicted and sentenced.
Though his sentence was suspended, Kessing has a criminal conviction, and he's gearing up for a last ditch legal battle in the High Court.
In the meantime, there is - as we all know - a new government in Canberra; one which championed Allan Kessing's plight and promised a new era of openness.
That new era is yet to begin - but the groundwork is being laid with proposed whistleblower legislation, proposed shield laws to protect journalists who write what they are leaked - along with new Freedom of Information laws which will make it harder for government and public servants to hide from pesky, prying journalists.
But what exactly does Allan Kessing hope to achieve in the High Court if it grants him leave to appeal, and is he confident it will actually hear his appeal?
Allan Kessing: Well, my legals tell me that I have a very strong case, but then I've been told that ever since this farrago began, so I don't know. I mean, if you look at it in terms of natural justice, I would have said it should never have come to this in the first place. But I'm entirely in the hands of the legals.
Monica Attard: It is a really big ask, isn't it, because you want the High Court to rule that criminal sanctions against public servants that leak go beyond what is permitted in the constitution. So it's taking it one step further, isn't it?
Allan Kessing: Well, the Section 70 of the Crimes Act...
Monica Attard: Under which you were convicted.
Allan Kessing: Correct. Has no blanket, should have no blanket provision under the constitution, because it does not specify what leaks may or may not be actionable. I mean, if I was to tell you that we had Tim Tams for morning tea instead of Iced Vo Vo's, that would be technically an offence because it was information that I acquired whilst an officer.
Monica Attard: So because the legislation itself doesn't specify what constitutes...
Allan Kessing: None whatsoever, merely the fact that the information was disclosed, I mean, it was not authorised. Now even the aspect of not being authorised is up for debate, because there is a very clear decision by Lord Denning, the Master of the Rolls, when we still had access to Privy Council back in 1968. Now this was a British decision, but basically Lord Denning just said that there is no provision for a master to enforce silence upon the servant to cover up the master's criminality. And in my case, I was charged with unauthorised disclosure to two journalists; they were named - Martin Chulov and Jonathan Porter.
And at the trial, my barrister said, well, since the indictment is specifically to these journalists, why are the journalists not being brought for a witness? And a subpoena was issued, and yet the subpoena was not enforced because it was against News Limited.
Monica Attard: We'll come to that point, no we'll come to that point because that's a little bit later on in the story. But basically what you want to argue in the High Court is that because Section 70 of the Crimes Act - under which you received a conviction and indeed a sentence - because that Section 70 makes no distinction between levels of disclosure by public servants that appears to be unauthorised, it is therefore an invalid piece of legislation.
Allan Kessing: That is my contention, yes.
Monica Attard: If you lose that bid for special leave to the High Court ... effectively, I assume, that's the end of the legal road for you?
Allan Kessing: That is the end entirely.
Monica Attard: You'll give up?
Allan Kessing: I'm out of funds and there are no more legal avenues to take.
Monica Attard: So you will have to give up?
Allan Kessing: I will. I will just declare force majeure. I mean, I've done my best; I've fought the government, and they've broken me.
Monica Attard: Do you feel broken?
Allan Kessing: Personally, no. But financially, yes.
Monica Attard: But you'll end up with a conviction ... a criminal conviction?
Allan Kessing: This is true.
Monica Attard: Will you ask the government for a pardon?
Allan Kessing: I'm conflicted on that and I do not feel inclined to do so.
Monica Attard: Why not?
Allan Kessing: Because to ask for a pardon means that you are saying 'yes, I was convicted and it was right, but there are extenuating circumstances' and I dispute the conviction in the first place.
Monica Attard: Would you not consider asking for a pardon on the basis that the government states very clearly that in its view, what you did was actually in the public interest?
Allan Kessing: Well, the government hasn't stated that, in fact, the judge at the trial told the jury on several occasions that they must not take the public interest into account.
Monica Attard: Let's just recap because a lot of our audience may not be aware of exactly what happened to you. You worked for Customs, airport security, and in that capacity you wrote two reports on the parlous state of airport security in Sydney. You indentified a number of very serious problems which essentially were ignored by your superiors, that is to say, that there was no action taken on what you had put in these reports.
Allan Kessing: Well, I must say they weren't ignored, they were suppressed and they were suppressed for the most banal of reasons, the commercial cost to the privatised airport corporation. If they were ignored, that would be one thing and you could just say 'oh well, that was a bad judgment call'. But they were not ignored, they were actually suppressed and we were told why they were suppressed - because of the commercial cost.
Monica Attard: And your reports found all manner of security problems?
Allan Kessing: Oh, from the cleaners to, you know, to higher Customs officers, yes.
Monica Attard: Now some time later, information from those reports landed in the hands of The Australian newspaper and was published by the two journalists that you already mentioned. And in a state of great embarrassment, the federal government brings to Australia a leading British security expert to investigate the same issues, and he confirmed them essentially.
Allan Kessing: Yes, but don't forget that when the first newspaper reports came out, first of all the deputy prime minister at the time, John Anderson, denied that there were any such reports. The next day they said 'yes, there were some but they were a minor piece of internal documentation'. By the third day I think he'd resigned and, as you say, some time later the prime minister, well, in order to "quell public concern" was the actual phrase he used, brought out John Wheeler.
And the only reason there was any public concern is because of the newspaper reports.
Monica Attard: But all of this, of course, occurred in a particular environment, a very sensitive political environment. There were several things that had happened. I mean security, national security, is a big issue because of 9/11, there's the Schapelle Corby case that's raging at the time as well. So it all kind of comes out at a very sensitive time as far as the government is concerned. Would you concede that?
Allan Kessing: Well, purely embarrassment, yes, and in fact the government actually said at my sentencing hearing "one of the reasons we seek a custodial sentence is because of the embarrassment to the government". And this was in the submission ... 'embarrassment to the government' - when did that become a political statute?
Monica Attard: In the end result you were charged with leaking information and you were convicted. What did you feel at the time that you realised, or you were told, that you were to be charged under Section 70 of the Crimes Act?
Allan Kessing: I didn't believe it would go ahead because to me, as I said, it was just so obvious that it was a political embarrassment aspect and I thought it would blow over like so many other things. I mean the AWB scandal, look how that blew over. The children overboard.
That previous government had so many political embarrassments and they all just passed, and I imagined this one would, because at no point was I ever arrested formally or questioned or anything else. It was purely a bureaucratic behemoth moving along inexorably.
Monica Attard: But why did you choose to fight on?
Allan Kessing: That's like asking why does one breathe? I mean in principle I would fight on until my last cent, which you know is rapidly approaching. After the conviction, the MEAA - the Media Alliance - and News Limited both raised between them $40,000 to pay for my initial costs, which almost met my initial costs.
And everybody, my family, my friends, all said 'look leave it, you've won a moral victory, you're almost recouped your losses, don't go on'. And I said 'look, I have to go on, because if I don't then the next poor bugger this happens to will probably not have such an obvious clear cut case of public interest and no evidence whatsoever'.
The Crown in their opening and closing addresses said 'this is an entirely circumstantial case, we make no claim as to how, when or under what circumstances the information was passed, merely that it was passed'.
Monica Attard: A lot of people have the view that as a society, we really shouldn't be encouraging people to leak confidential reports to the media. Can you see the merit of that argument? Particularly in an age when government agencies are dealing with very, very major issues like collecting information about matters that concern national security, for example.
Allan Kessing: As a general principle I would agree with that totally, but that was not the case here. This was a matter of public interest; the bureaucracy, as Dreyfus made clear in his report, had failed to act upon it and it was in the public interest.
So whoever did leak those reports, you know, everybody says has done a public service. I mean otherwise the government wouldn't have agreed to set up the Wheeler enquiry and throw 200 million bucks at ... allegedly throw 200 million bucks at the problem, which clearly hasn't been resolved, as was demonstrated a couple of weeks ago.
Monica Attard: Well, we'll talk about that in a moment as well, but I assume that you see why a situation where people leaking sensitive information might be counterproductive, regardless ...
Allan Kessing: Of course, of course.
Monica Attard: ...regardless of the public interest argument.
Allan Kessing: Ah well no, no, you must distinguish between the public interest and government embarrassment, and in most cases you will find it is purely political embarrassment, and in this case it was both. It was both public interest and it embarrassed the government, and which takes precedence? Well obviously, political embarrassment.
Monica Attard: But political embarrassment can be survived, I mean governments often...
Allan Kessing: As demonstrated, yes, with so many far greater scandals, the government just sailed on regardless.
Monica Attard: Are there any circumstances, do you think, Allan Kessing, where exposing a government agency to the criticism of, you know, maladministration or incompetence, might not be justified?
Allan Kessing: No, if there's maladministration or incompetence, no, I think it is not only justified, it is actually essential that this happens. Otherwise the maladministration and incompetence will carry on and on and on.
Monica Attard: I think at the time you couched what was happening to you as the product of an environment of fear which you believed was cultivated during the previous administration of John Howard. Do you think that's changed, that environment of fear?
Allan Kessing: Well, from what my ex-colleagues in Customs tell me, no, in fact, just recently there have been a couple of problems at the airport, and all my ex-colleagues have been told, 'say nothing to anybody, otherwise the same thing will happen to you as happened to Kessing'. I'll become something of a byword now as, you know, 'keep your head down' and otherwise, yes.
Monica Attard: So you're being held up within the organisation itself, within Customs, as being an example of somebody who did the right thing, but got busted for doing it.
Allan Kessing: This is correct, I mean, even when I was in training in 1990, there was another whistleblower, Peter Bennett, who in almost exactly the same words we were told 'whatever you do, cover your backside cause Customs won't do it for you', and we were given the example of Peter Bennett. Now Peter Bennett like me fought on and on and on, and he finally won.
Monica Attard: Is that where you're getting your inspiration from? Is that why you're doing it?
Allan Kessing: No, well personally no, I would do this no matter what happened, but Peter Bennett has been very supportive and, you know, he said 'you just have to go on and on because if you don't, who will? If not you, who? If not now, when?'
It's the old story of, you know, all the mice are sitting afraid of the cat and somebody says 'oh, let's stick a bell on the cat, great idea. Who's going to do it? Oh, not me.'
Monica Attard: And I'm talking to Allan Kessing. My name is Monica Attard and you're listening to Sunday Profile, thanks for being with us.
Allan Kessing, do you think that at an executive level, at a government level, Canberra's desire to plug leaks has diminished at all? And I'm not talking at a departmental level, but at a government level.
Allan Kessing: I don't see why it would. What government really wants their incompetence exposed? You know whoever you vote for the government still gets in and the government is held up by a bureaucracy, and a bureaucracy by definition is there to ensure that everything runs along and no waves are caused.
Monica Attard: But this is a government that has pledged itself, indeed using your case, to more openness in government. Now we have new whistleblower legislation that's on the table. You don't like this whistleblower legislation, can you just briefly tell me why you don't like it?
Allan Kessing: Well, as on one of your sister programs, The National Interest, a couple of weeks ago, Mark Dreyfus was interviewed and Peter Mares put to him exactly the point, he said what about the Kessing case?
And he said 'well yes, if he'd gone through the department and if this and if that' ...
Monica Attard: OK, so at this point we should bring our audience in on what you're talking about here, because this legislation, if it passes, will essentially protect whistleblowers who confine their complaints to their superiors in the public service. It doesn't protect public servants who necessarily, as a first course of action, go public.
Allan Kessing: This is correct.
Monica Attard: Right. Now of course unless they're exposing something ... an imminent threat to public health or safety.
Allan Kessing: Life threatening or public safety.
Monica Attard: Now to me that sounds fair enough, why doesn't that sound fair enough to you?
Allan Kessing: Well, think about it, why if something has been buried, it's been buried by a superior officer who is afraid of the consequences for his job. So how is it going to aid public safety, which you know surely is something that is constantly imminent, to go through a bureaucratic process?
I mean, bear in mind that these reports that I wrote, I wrote them in 2002 and 2003. They were rejected then and I went on to do other things. And what is it, two and a half years later they come to light, the government jumps up and down about them ...
Monica Attard: But times change and so do cultures within big organisations like government departments. What's to say that under a new government in Canberra that that feeling of fear that is alleged to have existed then hasn't dissipated, and that bureaucrats will feel more inclined to expose maladministration or incompetence or corruption, and to take it through the steps that are outlined in this new whistleblower legislation before going public?
Allan Kessing: Well, look at the steps that are outlined. First of all you take it to your immediate superior, they then pass it up to their superior, but what if it is your superior who is under threat? He's not going to pass it on.
Monica Attard: But presumably the legislation will outline some course of action, which will encourage public servants to actually take it to somebody who they know is not directly involved?
Allan Kessing: No, no, but you have ... no, you don't take it to somebody who's not involved.
Monica Attard: Or to the Public Service Commissioner?
Allan Kessing: No, that is a final step after you've taken it first of all to your immediate superior, and they have passed it up the line within your department.
Now if it's the health department, if it's the RTA or no matter what it is, why would the person who has suppressed it be inclined to investigate it? It is laughable.
Monica Attard: So can I take it from that, that you think public servants should be able to sidestep their immediate superiors and go to the media?
Allan Kessing: When something is so blatant as in my case, security in an airport, when the documents have been suppressed for something so banal as a commercial reason, yes,, I think that is culpable incompetence or, if not, corruption.
Monica Attard: OK, what if the defences in this legislation were strengthened? Would that allay your fears?
Allan Kessing: Well, I mean yes, that would be better, but I cannot see any wording that would cover that case. And bear in mind that when the Attorney-General McClelland was asked about the implications of the Dreyfus report, and whether they would be implementing the recommendations he said 'oh, perhaps later this year or maybe next'. He didn't seem to be, you know, too keen on it.
Monica Attard: We of course continue to see airport security breaches. Another just a few weeks ago when a bikie leader was bashed to death at Sydney Airport. It seems the problems are still not fixed. Has anything changed as far as you can see from the outside?
Allan Kessing: Well, not from the outside, as you allude to, and as my ex-colleagues tell me, there've been two new spiffy new titles for some senior seat warmers and no other differences that they can detect, and bear in mind they are on the inside.
Monica Attard: So they can see no evidence of any implementation of any recommendation made by Wheeler?
Allan Kessing: That's correct.
Monica Attard: Or anybody else?
Allan Kessing: That's correct.
Monica Attard: In relation to security.
Allan Kessing: Well, take the incident a couple of weeks ago. The CCTV cameras, there are at least four systems at the domestic, there are seven or eight at the international, they are not compatible.
The various uniform services, the AFP, the APS, the NSW Police and Customs. They all carry different radios, they're on different channels and they not only cannot communicate, they are not allowed to communicate. You must go through your own control room first who then passes on to the other control room, and five or ten minutes later down the track A gets to know what B wants.
So at all times there is a turf war between the various areas of responsibility, whether it's Customs or police or the commercial entities. Bear in mind that Sydney International Airport especially is merely the largest shopping centre in Australia with some runways attached. And at all times, the prime consideration is to keep the passengers moving through, preferably through the duty free areas and to buy, buy, buy. And anything that's going to slow down or stop people feeling free to spend money is going to be stomped on, and at no point will all of those entities come together and agree on a specific overriding authority.
And in fact we already have the overriding authority and that is the Customs Act, Section 16 in the Customs Act says quite clearly that the controller of Customs may declare any region or any area a controlled area, and all operations within that area must conform to the Customs Act.
And they clearly don't because of commercial considerations.
Monica Attard: But this is an area that has already been indentified at least by the Federal Attorney-General Robert McClelland; the fact that there are so many authorities involved in airport security, none of which are talking to each other currently.
Allan Kessing: That's correct, but Wheeler made exactly the same finding in 2005 and I made exactly the same recommendations in 2002. So what has changed?
Monica Attard: And is that the reason that you believe what happened a few weeks ago at Sydney Airport happened? Is that why it happened?
Allan Kessing: Well, of course, if you had joined up policing or joined up enforcement, that would not have occurred because when those people were coming off the plane, there would have been uniformed and, if necessary, armed personnel waiting to greet them.
If they - and at that time bear in mind they hadn't committed any offence except perhaps using their mobile phones whilst landing - and I can't see the fracas occurring with uniformed and armed personnel around.
Monica Attard: OK, let's move on and let's go back a little bit to your own case. You've always said that you didn't leak those reports or information from those reports, but you know who did.
Allan Kessing: Yes.
Monica Attard: As you stand preparing to go to the High Court. You know, lofty ideas of democracy transgressed aside, why don't you name that person or those people?
Allan Kessing: I wouldn't dream of doing such a thing. I can't believe that you would ask me a question. What - I would throw somebody else to the lion to save my own neck? Not a chance.
Monica Attard: The two journalists who wrote the story based on your report in The Australian were never called as witnesses as you said, and had they been presumably they wouldn't have divulged their source either. But in protecting the sanctity of the source, of course, someone's got to hang, don't they?
Allan Kessing: No, I think what should have happened is the matter should have been examined; the subpoena should have been enforced and the journalists should have been called.
Monica Attard: What good would that have done if the journalists had been called?
Allan Kessing: Well, it would have shown that the charge was fallacious. Bear in mind, the charge was that I had leaked, I personally had leaked the information to those two journalists personally. And all they would have had to do was call them and say 'will you divulge your source?' 'No'. 'Next question, was it this person in the dock?' 'No'. End of discussion.
Monica Attard: Are you angry that they didn't come forward?
Allan Kessing: Of course I am, a subpoena is one of the most powerful legal instruments we have. It was issued by the Court, the Court of NSW, it was served on News Limited and it was not responded to.
One week later when the judge said 'well, the subpoena has not been answered, what does the Crown wish to do?' The Crown stood up and said 'I have been directed by the Commonwealth Director of Public Prosecutions not to seek enforcement of the subpoena'.
I defy anybody to ever find an example of a subpoena issued by the Crown which was not enforced. It has never happened.
Monica Attard: Have you ever had a conversation since your charging with those two journalists?
Allan Kessing: No, I've never had a conversation with them at any time.
Monica Attard: Had you never considered asking them to simply front?
Allan Kessing: Well no, it's like when you ask me why won't I name the person who did leak it, I'm just ... sorry, perhaps I belong to an older generation, but there are such things as honour and integrity. No, I wouldn't dream of doing such a thing.
Monica Attard: And that was Allan Kessing, who's fighting still to clear his name after being convicted of leaking sensitive government information on the lax state of airport security in this country.
And that ends the show...thanks for listening. Thanks also to our producer Belinda Sommer.
If you'd like to see a transcript of this interview with Allan Kessing or download a podcast, just go to our website at abc.net.au/sundayprofile.
I'm Monica Attard. Rear Vision is up next, so stay with us on ABC Radio National.
John Hartigantag:circus.waddayano.org,2009:/blog//3.10072009-02-15T10:34:28Z2009-02-15T10:36:17Zhttp://www.theaustralian.news.com.au/story/0,25197,25050452-28737,00.html John Hartigan | February 14, 2009 Article from: The Australian IN Australia we cherish the freedom to tell it as it is. It's part of our heritage, and now ingrained in our culture: we like our facts unfettered so...Scabious Knapweed
http://www.theaustralian.news.com.au/story/0,25197,25050452-28737,00.html
John Hartigan | February 14, 2009 Article from: The Australian
IN Australia we cherish the freedom to tell it as it is. It's part of our heritage, and now ingrained in our culture: we like our facts unfettered so we can form opinions in our own way, and speak up when things aren't right. It's what we call freedom, and to a large extent we have it in this country. We take it for granted. But my warning is: don't.
There is increasing evidence that we cannot afford to be complacent. Our freedoms are not as robust as they should be. This is not some alarmist or far-off theory.
The threats are real, they are already with us and I see them every day.
As a journalist, my perspective on democratic freedom is largely through the prism of the media. Briefly, here's what I see: increasing intimidation, including a police raid last year on one of our newsrooms; journalists - approximately a dozen last year alone - being interrogated in the star chambers of state crime commissions to force them to reveal their confidential sources, or face jail; journalists' phone and bank records being intercepted to find the sources of their stories; courts being difficult - and sometimes obstructive - when it comes to releasing information and documents that should be freely available; unprecedented levels of spin from government, a pervading culture of secrecy and a deep resistance to, and fear of, allowing people to know how they are governed.
In my 45 years in journalism it has never been more difficult for a journalist to get and verify a news story than it is today.
Is this a bad thing? I'm aware that some people think the press has too much freedom. Certainly our media is imperfect and its journalism sometimes flawed. By the nature of its role, it can be noisy and brash; by design of the speed at which it operates, it can be inaccurate or even unfair. Although we enjoy generally excellent standards of journalism, the media, like most industries, has room for improvement.
The media remains our primary source of information about decisions that politicians make on our behalf, how governments spend our taxes and how courts operate and deliver us justice.
Certainly technology has given us access to more and more sources of information. Comment and opinion has become more plentiful with the internet and the rise of blogging, but the starting point for this information - the news and the facts - hasn't changed. It almost always originates with a journalist in a newsroom, usually working for the traditional media of television, radio and newspapers. Professional journalists employed by companies such as News Limited have the time and the resources to research, interrogate and publish. They also have access to the front-row seats at any historical or important event so they can be the eyes and ears for the vast public who cannot be there.
Without journalists, there would be plenty of information, as there is now. Governments, big business and political organisations would continue to churn out their press releases, putting most of it on the web for all to see, but there's the rub. When organisations self-publish, they release only what they want you to see. A democracy requires that someone independent can challenge that information to test that it's right, find the missing bits, unearth the things they're hiding, tell everyone what's really going on. If the media doesn't shine a bright light on those dark corners where corruption and wrongdoing might otherwise fester, who will?
Free people need the opportunity to criticise, debate and challenge what's happening. Information is the tool that allows us to freely make up our own minds, to decide whether politicians should be re-elected, to speak up when we're offended, angry or worried. We can do this individually, but in practice most of us don't have the time. The media does it for us.
But freedom of the press has been increasingly battered and damaged. Our basic rights to information have been chipped away. The creep toward secrecy has been gradual, but it has been constant. The problem is not isolated to one level of government: it is endemic across local, state and federal arenas and across the political divide. It's been happening relatively unnoticed for several decades, but lately the pace of the slide has increased.
In its independent survey of nations according to their levels of free speech, the French-based organisation Reporters Without Borders put Australia in 28th place in 2008, behind Namibia, Lithuania and the Czech Republic. We trail behind most of Europe and far behind New Zealand in ninth place. I have to ask: what is it about the people of New Zealand that they are so trusted by their government to have information, while Australians are not? It is an appalling indictment on Australia that we are not alongside countries such as Canada, Germany or Ireland when it comes to free speech.
As a measure of how anxious the Australian media has become about this, the industry came together in May 2007 to form a coalition called Australia's Right to Know. Its aim is simple: we want reform so this country can be as free as it deserves to be.
The members of the Right to Know coalition include Fairfax, the ABC, SBS, the commercial television and radio networks and News Limited. Although its members are traditional media rivals, the coalition was surprisingly easy to broker; everyone jumped on board quickly and no one declined the invitation to join. Individually, all of us had struggled against the tide, but overwhelmingly we had failed.
We saw no option but to become a united, and hopefully stronger, front. Together we have commissioned independent research, raised awareness of the erosion of freedom of speech and lobbied governments for reform. None of us is under any illusion that this action will increase ratings, circulation or revenue, because it won't. We're doing it because we all believe passionately that we must.
So how did Australia get into this regrettable situation? For starters, we are unusual among Western democracies in not having any constitutional protection of free speech as they do in the US, in European Union member countries, Canada and New Zealand. This means there's no guaranteed presumption of free speech. Rather, we have only those freedoms that our politicians allow us to have. They can take them away, and we have no constitutional right to stop them.
We must also understand that it is fairly natural for a government to be secretive. It's easier to face voters if you give them only the nice glossy bits and hide incompetence and mistakes. Secrecy is, by and large, in a government's interest. The problem is, it's not in the interests of the people.
Unfortunately, a government's taste for secrecy is addictive. The desire to hold on to power overwhelms the mandate to be open and accountable to the citizens it serves. Secrecy and spin become the norm. The fear that some information might be embarrassing, or held against them, leads to a default of secrecy that effectively denies Australians even the most benign, but still useful, information.
I think any consumer of news and current affairs would be astounded by the type of information we cannot get easily, if at all. The list is huge: statistics from hospitals and schools about their standards of care and education; government-commissioned reports about everything from the economy to the environment and industry. We have struggled in the past to get information about the travel expenses claimed by MPs, or the background to how government contracts have been allocated. Our access to information about crime has been seriously curbed. And right across the board, government-employed workers, from nurses and police officers, to bus drivers and bureaucrats, have been left in no doubt that if they ever talk to the media they will face losing their jobs, and possibly prosecution, even for releasing the simplest and most harmless information. The message is clear: if you don't work for the press office, shut up or else.
Of course, the media should not have open slather to report everything. No one wants to jeopardise national security by publishing intelligence reports, or to compromise justice by exposing an accused's criminal record during their trial. It serves no one to identify a rape victim, or an undercover police officer. These are not the issues. At issue is the vast amount of information that rightly belongs to the Australian public, but which is simply not available to them. Secrecy when it is necessary should be in the best interests of the people, not in the interests of a government seeking to avoid pesky scrutiny or embarrassment.
Our governments generally work on the premise that all information is secret unless there's a good reason for it not to be. It should be the other way around: the default being that everything is automatically open and available, unless there is a sound reason why it should not be. This is a very successful model in several countries such as Sweden, without ill-effect.
This has bred a culture of secrecy in the bureaucracy. Rather than a shifting, vague notion of transparency and openness, the limits on what we have the right to know should be clearly defined and understood. They should be debated, not just imposed without question.
Freedom of information: On a daily basis the media relies on freedom of information laws to access information about government. These laws were introduced by federal, state and territory governments in the 1980s in an attempt to make governments more transparent and accountable to the public.
The rationale for the Freedom of Information Act was spot on. Speaking in 1976, before the new law was introduced, prime minister Malcolm Fraser said:
"If the Australian electorate is to make valid judgments on government policy it should have the greatest access to information possible. How can any community progress without continuing and informed and intelligent debate?
How can there be debate without information?"
Under the FOI Act, individuals (including journalists) and companies can apply for copies of documents held by government departments, giving access to information on tax, statistics on government programs, analysis of government policies, advice provided to ministers, details of politicians expenses, money spent and to be spent on government programs such as pensions, and so on. The aim was to allow people to get personal information; for example, tax records about themselves, and to make sure the public either directly or through the media is able to see the mechanics and decision-making of their governments.
Unfortunately 32 years later we are still waiting for that promise to become a reality. Despite good intentions by some, all too often the information sought is either not available, or accessible only after lengthy, costly negotiation with the department holding the information.
Freedom of Information has become an oxymoron: it is not free - in fact, FOI searches can be absurdly expensive - and too often it fails to provide information. FOI has become so difficult that most major newsrooms now employ specialists for it. It is achingly slow - some searches can take years - and even when they succeed, journalists frequently receive documents that are covered in the blocked-out lines of the censor.
Governments tell us that the vast majority of requests for information are met. The Victorian Government, for example, claims 97 per cent of all FOI applications are satisfied. Like the promise that your margarine is 97 per cent fat free, it's really the 3 per cent that counts. The 97 per cent refers to the thousands of requests from private citizens for non-controversial information. The 3 per cent is the bit that really matters: that's where you'll find the information about government policy decisions that politicians don't want us to know about.
Whistleblowers: A secretive culture in government creates pressure for information to be released in ways other than through official channels, such as bureaucrats leaking to journalists. As the people closest to the workings of government, public servants are the most likely people to discover cases of maladministration, or in the most extreme cases, corruption, within their ranks. It is clearly in the public interest for a public servant to bring such problems to light, but it has been made difficult and even risky to do so.
Most whistleblowers have already taken their concerns to superiors in their own department, or to a watchdog agency such as the ombudsman or a corruption commission. If this fails, a whistleblower will sometimes turn to someone else as a last resort, usually the media.
But when a government employee does this in Australia, they are usually committing a crime as well as breaching their employment contract. Increasingly, whistleblowers are being hunted down by police or state-based integrity commissions, and charged. They can be jailed. Some lose their life savings or superannuation defending themselves. Others lose their jobs, or are silently ostracised and victimised at work; their careers effectively over.
In 2005, The Australian published details from an internal Customs report that revealed lax security and drug-smuggling rings at a number of airports, leaving the country vulnerable to terrorism. The report had been ignored by internal officials for two years before it eventually leaked to the newspaper.
Less than a week after the reports in The Australian, federal cabinet met to discuss it and later announced a $200 million airport security upgrade. It seems unlikely this would have gone ahead if the Government hadn't been embarrassed by the report and shamed for putting the Australian public at risk for so long.
But what became of the alleged whistleblower whose conscience and desperation led to leaking the report in the interests of public safety? Did the Government thank him for his courage? No. An internal witch hunt was conducted and a Customs official, Allan Kessing, was accused. Despite his denials, Kessing was charged, convicted and sentenced to nine months' jail, later suspended when he put up the money for a good-behaviour bond. He lost his job and is now fighting an appeal, which has cost him his savings.
In 2004, two journalists from the Victoria's Herald Sun published a story about a secret plan by the federal Government to deny pension entitlements to war veterans. Their report was 100 per cent correct. Nevertheless a public servant, Desmond Kelly, was charged with leaking information to the newspaper and convicted. Reporters Michael Harvey and Gerard McManus were called to give evidence in the case and, rightly, refused to disclose the source of their story. They were convicted of contempt of court. Even when Kelly's conviction was quashed on appeal, the journalists were still punished. They were spared jail - just - but were fined $7000 each and both now have criminal records. The law ignores the fact that their story was in the public interest.
In another case, Toni Hoffman, a nurse at Bundaberg Hospital in Queensland, repeatedly raised concerns about one of the medical staff, Jayant Patel, with her employers, the police and the Queensland Coroner. Despite her repeated complaints, Patel was allowed to continue working. In despair, Hoffman went to her local MP and ultimately the media. Patel was later extradited from the US to face criminal charges. Hoffman's action was a crime. Since then, whistleblowing to a MP has been legitimised, but whistleblowing to the media has not.
In Western Australia alone last year, six journalists have been hauled before that state's Crime and Corruption Commission and asked to reveal their sources. The heavyhanded commission has considerable secrecy powers. If a journalist tells their employer or even their family that they have been interviewed by the commission, they are committing a crime.
In Queensland, parliament has just passed legislation that will compel journalists to disclose their sources to their corruption commission or face jail if they refuse. There is no legal basis on which the journalist can refuse and avoid prosecution.
In September last year, six Australian Federal Police officers raided the Gold Coast home of a public servant suspected of leaking a story about rural Australians possibly losing their TV signals when analog signals are switched off.
And last April, officers of the Major Fraud Squad spent five hours raiding the offices of The Sunday Times newspaper in Perth. The major fraud they were investigating? The source of a (true) story that the WA government planned to spend an extra $16 million of taxpayers' money on advertising to secure its own re-election.
These are hardly stories that may threaten Australia's national security or the safety of the public.
Edited extract from an essay in Perspectives, edited by Helen Sykes.
Let Customs whistleblower walk away a free man tag:circus.waddayano.org,2009:/blog//3.10062009-02-11T10:34:50Z2009-02-11T10:40:01Z6/10/2008 http://www.canberratimes.com.au/news/opinion/letters/general/let-customs-whistleblower-walk-away-a-free-man/1325862.aspx Every Australian citizen should be concerned for the outcome of the court appeal by Customs whistleblower Allan Kessing (''Customs case back in Court'', October 3, p9). Kessing received a suspended jail sentence after being convicted of leaking confidential...Scabious Knapweed
6/10/2008 http://www.canberratimes.com.au/news/opinion/letters/general/let-customs-whistleblower-walk-away-a-free-man/1325862.aspx
Every Australian citizen should be concerned for the outcome of the court appeal by Customs whistleblower Allan Kessing (''Customs case back in Court'', October 3, p9).
Kessing received a suspended jail sentence after being convicted of leaking confidential Customs reports to a newspaper relating to drug trafficking by staff and lax anti-terrorism measures at Australian airports.
Despite the fact that Kessing's public revelations pinpointed serious problems in Customs, and despite the fact that it led to the biggest overhaul of airport security in Australia's history, he was punished and became the victim of the letter of the law, rather than the beneficiary of the spirit of the law.
Confidentiality legislation is just and proper when it protects the national interest.
However, when confidentiality legislation hides issues that threaten the public interest at the highest level the protection of citizens' lives, then it is unjust and seriously improper.
No Australian citizen who takes an oath of confidentiality should be expected to keep quiet under pain of punishment when conscience identifies wrongdoing.
Star chamber processes of oppressive governments are underpinned by such laws and have no place in Australia's democratic society.
Let's hope that the NSW Court of Criminal Appeal makes the right decision and Kessing walks away a free man and a citizen of conscience.
Judgement Dismissing Appealtag:circus.waddayano.org,2009:/blog//3.10052009-02-11T10:30:38Z2009-02-11T10:40:01ZDec 19th, 2008 Allan Robert Kessing v R Judgment 1 BELL JA: On 27 March 2007 the appellant was convicted in the District Court following a trial before Bennett DCJ and a jury on an indictment that charged him with...Scabious Knapweed
Dec 19th, 2008
Allan Robert Kessing v R
Judgment
1 BELL JA: On 27 March 2007 the appellant was convicted in the District Court following a trial before Bennett DCJ and a jury on an indictment that charged him with communicating the contents of a document which had come into his possession when he was a Commonwealth officer and which it was his duty not to disclose. The offence is provided in s 70(2) of the Crimes Act 1914 (Cth). The maximum penalty for the offence is imprisonment for two years. On 22 June 2007 his Honour entered a conviction upon the jury’s verdict and sentenced the appellant to imprisonment for nine months, to be released forthwith on a recognizance under s 20(1)(b) of the Crimes Act that he be of good behaviour for nine months.
2 The appellant appeals against his conviction.
3 The offence was particularised as that between 10 and 31 May 2005 the appellant having been an officer of the Australian Customs Service (the ACS) communicated to Martin Chulov and Jonathan Porter the contents of documents, the “Threat Assessment of Airport Security Screening Personnel Sydney Kingsford Smith Airport” (the Threat Assessment report) and “Sydney Airport – Air Border Security – Risk Analysis 2003” (also known as “Tarmac Report 2003”) (the Risk Analysis Report), which had come into his possession as a Commonwealth officer.
4 The appellant had been a member of an intelligence unit with the ACS, which was located at the Sydney Kingsford Smith Airport, the Air Border Security Team (the ABS Team). The Threat Assessment report contained a security assessment of an organisation that had been contracted to provide security services at the airport. The Risk Analysis report replicated the text and contents of the Threat Assessment report in the section dealing with the security organisation and contained security assessments of a wide range of persons working at the airport. Both reports were written by Caterina Magni, the leader of the ABS Team. The ABS Team office was located in a secure area within the airport and Ms Magni and the other six members of the ABS Team including the appellant worked in it. Ms Magni provided electronic copies of parts of the report to other team members for their comment. The appellant received copies of parts of the two reports by email. Hardcopies of both reports were kept in a locked security cabinet in the ABS Team room and members of the ABS Team had access to them.
5 On 10 May 2005 the appellant resigned from the ACS.
6 On 31 May 2005 two articles were published in The Australian newspaper under the by-line “Martin Chulov” and “Jonathan Porter”. Each article included material paraphrasing the reports and, in some instances, direct quotations from the reports. Since the Risk Analysis report reproduced the Threat Assessment report the quotations and other material may have been drawn from the Risk Analysis report alone.
7 The ACS and the Australian Federal Police (the AFP) conducted an investigation to determine the source of the “leaked” report/s. All of the persons who had had access to the reports were interviewed in the course of the investigation.
8 On 6 September 2006 the AFP executed search warrants at the appellant’s home and at his mother’s home at which he stayed from time to time. A copy of the Threat Assessment report was found at his home together with a piece of paper with the name Martin Chulov and a telephone number written on it. A copy of the Risk Analysis report was found at his mother’s home together with a business card on which was printed the name Martin Chulov and contact details.
9 Telephone call charge records established that in May 2005 a number of calls had been made from the landline at the appellant’s home to telephone numbers subscribed to by News Ltd (the proprietor of The Australian). These included calls to the number allocated to Martin Chulov in the offices of The Australian and to a mobile telephone number allocated to Martin Chulov. At around the same time, telephone calls had been made to telephone numbers subscribed to by News Ltd from the landline at the appellant's mother’s home and from a public telephone located about 70m from her home.
10 On 10 May 2005 the appellant signed documents including an “Official Secrets” form in which he acknowledged his understanding that all official information that he had acquired in the course of his duties for the Commonwealth was not to be published or communicated to any unauthorised person after his service with the Commonwealth. He certified that all information acquired by him in the course of his employment with the Commonwealth had been returned to an appropriate Commonwealth representative.
11 The appellant did not give or call any evidence at the trial.
The grounds of appeal
1. The verdict in all the circumstances was unreasonable or could not be supported by the evidence.
2. The trial judge erred in directing the jury that it was sufficient if they were satisfied that the appellant had communicated to either of the journalists named in the Indictment, namely Martin Chulov or Jonathan Porter.
3. The trial judge erred in permitting into evidence exhibit F (copy of the Australian newspaper dated 31/5/2005), this being a hearsay document.
4. The trial judge erred in refusing defence counsel request to give a warning under sec. 165 of the Evidence Act in respect of exhibit F.
5. The trial judge erred in not giving a Jones v. Dunkel direction when sought by defence counsel.
6. The trial judge mis-directed the jury when answering questions posed in MFI 46.
7. The trial judge erred in directing the jury the Crown was not obliged to prove all the contents of the Reports were communicated and that the communication could have been done “directly” or “indirectly”.
8. The trial judge erred in his re-directions to the jury concerning their questions posed in MFI 52.
9. The trial judge erred in permitting into evidence over objection exhibit M, the evidence of Donna Scattolin.
10. The trial judge erred in admitting into evidence exhibit E (series of e-mails from the appellant to various individuals at the Australian Customs service concerning his position whilst on leave and after having suffered an injury).
12 The first ground contends that the verdict cannot be supported having regard to the evidence. It is convenient to defer consideration of this ground.
The directions concerning the elements of the offence
13 The indictment charged the appellant in these terms:
That Allan Robert Kessing having been a Commonwealth officer, namely an officer of the Australian Customs Service, did between about 10 May 2005 and 31 May 2005 communicated to Martin Chulov and Jonathan Porter, without lawful authority or excuse, contents of documents, namely two reports, “Threat Assessment of Airport Security Screening Personnel Sydney Kingsford Smith Airport” and “Sydney Airport – Air Border Security – Risk Analysis 2003” also known as “Tarmac Report 2003”, which came into his possession, by virtue of having been a Commonwealth officer, and which, at the time when he ceased to be a Commonwealth officer, it was his duty not to disclose.
14 The issue raised by ground 2 concerns whether it was incumbent on the Crown to prove that the appellant intentionally communicated the whole of the contents of the two reports to each of Martin Chulov and Jonathan Porter. Towards the end of the Crown case the jury asked whether it was necessary that the Crown prove communication to both journalists. The Crown Prosecutor submitted that it was sufficient that it establish communication to either Martin Chulov or Jonathan Porter. The trial judge accepted this submission and directed the jury accordingly. Dr Glennon submitted that the direction was wrong in law and that it involved a fundamental change in the way the Crown put its case, which was unfair. It is necessary to refer to the course of the trial in order to deal with the second aspect of this complaint.
15 The Crown Prosecutor said this in opening, (T’cpt 6/3/07 21.54-22.10):
So the next element, ladies and gentlemen, is, on the second line you’ll see, “did between about 10 May 2005 and 31 May 2005 communicated to Martin Chulov and Jonathan Porter without lawful authority or excuse contents of documents, namely two reports” and then the names of the reports are particularised. What is critical about this particular element, ladies and gentlemen, is that the accused, the Crown says, did communicate two documents, two reports. So the second element that the Crown must prove is the accused did communicate those reports. The Crown says those reports were communicated to two persons that are named there, Martin Chulov and Jonathan Porter, and by way of particularising or identifying the reports the Crown has set out what they are.
…
So, just to recap, ladies and gentlemen, there are four crucial elements. … Second, the Crown must show that the accused did communicate the contents of the two reports known as “Threat Assessment” and “Risk Analysis” to the persons named in the indictment. (T’cpt 6/3/07 22.47-53)
16 The Crown Prosecutor went on to outline the evidence that he anticipated leading, which included the publication in The Australian of the two articles under the by-line “Martin Chulov Jonathan Porter”, the execution of the search warrants and finding of the documents with the name “Martin Chulov” and contact details and the call charge records that revealed contact between telephone services associated with the appellant and telephone services associated with a person named “Martin Chulov”.
17 Mr Lowe opened to the jury immediately after the opening address of the Crown Prosecutor, saying: (T’cpt 6/3/07 34.48-55):
Now, what is of course in dispute is that my client disputes that he communicated the contents of the document, that is, either of the two documents referred to by the Crown, to Martin Chulov or Jonathan Porter, who were journalists from The Australian. Someone else, perhaps, from Customs, but not necessarily so, must have leaked that report or communicated the contents of that report. (Emphasis added.)
18 Towards the end of the Crown case, the Crown Prosecutor applied to amend the indictment to delete the words, “the Threat Assessment of Airport Security Screening Personnel Sydney Kingsford Smith Airport. (T’cpt 20/3/07 720.11-28) He explained that he anticipated that defence counsel may invite the jury to acquit the appellant on the basis of the Crown’s inability to prove communication of both reports since the contents of the Threat Assessment report were reproduced in the Risk Analysis report. The trial judge indicated a preliminary view that there was no need for the amendment. (T’cpt 20/3/07 729.19-29) His Honour went on to ask the Crown whether it was sufficient if the jury were satisfied beyond reasonable doubt that the communication was either to Martin Chulov or to Jonathan Porter. The Crown’s position was that communication to either was sufficient. (T’cpt 20/3/07 730.48-52)
19 Mr Lowe submitted that the Crown had assumed the burden of proving communication to the two named persons. (T’cpt 20/3/07 732.44-49) His Honour observed that the appellant's case had been run on the basis that there had been no communication of the contents of the documents by the appellant. Mr Lowe acknowledged that this was so, conceding that “nothing has changed overnight”. (T’cpt 20/3/07 734.55) His Honour determined that communication to either person would be sufficient.
20 In the course of the Crown Prosecutor’s closing address the jury asked a question (MFI 31) in these terms:
Is proof (beyond a reasonable doubt) needed that the defendant communicated the contents of the documents to both Martin Chulov and Jonathan Porter?
21 The trial judge stated that he proposed responding to the question saying, “the Crown will have succeeded if it has persuaded you beyond reasonable doubt that the contents of the documents were communicated directly or indirectly to one of or both of these two reporters”. (T’cpt 21/3/07 22.24-28) Mr Lowe maintained the submission that he had earlier made that it was incumbent on the Crown to prove communication to both.
22 The Judge directed the jury in answer to their question (T’cpt 21/3/07 25.13-19):
This is something that I will need to direct you upon in the course of my summing-up to you, but in response to your specific question I can say this. The Crown will have succeeded in respect of the second element to the charge if it does satisfy you beyond reasonable doubt that the contents of the documents were communicated to either or both of Mr Chulov and Jonathan Porter.
23 Mr Lowe put the appellant's case in this way in his closing address (T’cpt 22/3/07 26.41-27.19):
So if there are other reasonable or rational hypotheses consistent with innocence, if you sit down in your deliberations and you think that there are rational or reasonable inferences such as there might have been a discussion by my client with somebody from “The Australian”, not about the contents of the report, or that somebody else might have had access to the report and provided it “The Australian” (sic) because of issues associated with Schapelle Corby or God knows what, for whatever reason, then you would be bound to find my client not guilty because there are other - the Crown hasn’t proved its case beyond reasonable doubt. In a circumstantial case the only inference that you would have to draw is one of guilt if you excluded all those other competing hypotheses consistent with innocence. Now the real issue in this case is in fact whether my client is the person who communicated the contents of the report. Now if you are of the view that there was a document that was in the possession of “The Australian” such as a hardcopy report, a copy of that report, the police could have executed a search warrant, they could have, they didn’t. They could have made a comparison between the two documents. For instance exhibits A, there’s evidence in this case exhibit A had handwritten notations on it. I’m not just saying one page but a number of pages. There are also in relation to exhibit B nicks in pages, creases, dog tagging particular pages and the like and even I think there’s a mark that was identified on the front cover of exhibit B. Well we know what was seized from my client’s house both at Marrickville and at Mount Victoria. Surely the best evidence in this case would have been to execute – if there was, if “The Australian” did have those reports, execute a search warrant, obtain a copy, make a comparison between what they had and what my client had, wouldn’t that be the best evidence you might well think. (Emphasis added.)
24 The elements of the offence which the Crown was required to prove beyond reasonable doubt were:
(a) the appellant having been a former Commonwealth officer;
(b) intentionally communicated a document/s;
(c) which document/s had come into his possession as a Commonwealth officer; and
(d) the appellant was under a duty not to disclose the documents.
The fault element for (a), (c) and (d) being recklessness.
25 The indictment pleaded the offence in the words of the statute and contained particulars of the offence which included that the documents had been communicated to Martin Chulov and Jonathan Porter. The failure to establish a particular does not mean that a conviction based on the indictment is bad in law: R v VHP (Court of Criminal Appeal, 7 July 1997, unreported BC9702876 at 15); R v Dossi (1918) 13 Cr App R 158 at 159-160. The requirements of procedural or substantive fairness will on occasions require that the Crown not be permitted to depart from the particulars: VHP. This was the case in VHP: the date on which the offence was alleged to have been committed had become essential, due to the way the trial was conducted.
26 The first directions that the jury were given on this aspect of the proof of the Crown case were those given in answer to the jury’s question. They were directions given before the commencement of closing addresses. There was in reality no change in the Crown’s position. It was at all times the Crown case that the articles published in The Australian contained material drawn from the reports and that it was the appellant who had intentionally communicated that material. The Crown sought to prove its case by proving circumstances which included that copies of the reports and Martin Chulov’s contact details were found at that appellant’s and his mother’s home, call charge records showing contact between telephone services connected with the appellant and services connected with Mr Chulov and that the articles were published under the by-line “Martin Chulov Jonathan Porter”. The Crown had not opened a case on communication to Jonathan Porter based on any circumstance other than that the name “Jonathan Porter” appeared in the by-line.
27 Following the asserted change in the Crown’s position Mr Lowe did not ask for the recall of any witness. There was no suggestion that he would have conducted the appellant’s case differently had Jonathan Porter’s name not been particularised in the indictment. Mr Lowe met the case in exactly the way he had outlined in his opening before any evidence had been led, which was to put in issue that the appellant had communicated the contents of the documents to either Martin Chulov or Jonathan Porter.
28 The direction that the Crown would establish the second element of its case if it proved communication to either of the journalists was not wrong in law. There was no unfairness in the circumstances of this trial in permitting the Crown to depart from the particulars pleaded in the indictment in this respect.
29 I turn now to the contention that it was necessary for the Crown to prove that the appellant communicated by direct means the whole of the contents of the two reports.
30 The trial judge directed the jury in the course of his summing up (T'cpt 22/3/07 18-19):
I ask you to note the emphasis that I just placed upon the words “contents of”. The wording of the charge regarding the matter of which you must be satisfied beyond reasonable doubt in this element is that the accused communicated the contents of the two documents there named. It may be the case that you are satisfied beyond reasonable doubt that the reports were communicated in their entirety, that is to say by the provision of copies of those documents. If you were so satisfied, it would mean that the Crown has succeeded in respect of this particular aspect of the case it presents. However, the Crown does not allege that this is what the accused has done. The Crown alleges that he communicated contents of the two documents, whether or not actual copies of the document were provided. The question you must decide is whether or not you are satisfied beyond reasonable doubt that the accused communicated contents of the documents. In this regard you will note that the second document in time, that is the second report of which exhibit B is a redacted copy, incorporated in its text the content of the first report of which exhibit A is a redacted copy. Thus, the Crown would succeed upon this aspect of the case it presents if you were satisfied beyond reasonable doubt that the accused communicated the content of the reports, whether he did so by communicating the content of one or both of the documents.
31 The indictment charges the appellant with the communication of the contents of the documents. The words of the section refer to, “a person who … publishes or communicates … any fact or document which came to his or her knowledge or into his or her possession … .” Where two or more subjects are qualified by two or more matters the qualifications may attach to the subjects in the order in which they appear: see, generally, DC Pearce and RS Geddes Statutory Interpretation in Australia (Aust: Butterworths, 2006, 6th ed) at 146, [4.34]. If the provision were framed in terms that, “a person who … communicates or publishes … a fact or document which came to his or her knowledge or possession” it may have been open to construe it as creating two ways in which the offence could be committed: (i) communicating a fact in the person’s knowledge or (ii) publishing a document in the person’s possession. The order of the words “publishes or communicates” does not suggest such a construction. There is no reason to conclude that one cannot “communicate” a document. This seems to have been accepted by Calloway JA in R v Kelly [2006] VSCA 221 at [8]. To “communicate” is to transmit or to impart knowledge or make known (Macquarie Concise Dictionary, 3rd ed.) One may “communicate” a document by communicating the contents of the document. This is how the Crown particularised this case. Generally, to publish connotes to make publicly known, however, in the law of defamation publication applies to making the matter complained of known to any person other than the person defamed. This appeal does not raise the distinction between publishing and communicating for the purposes of the offence created by s 70.
32 Dr Glennon’s submission was that communicating the “contents” of the document is to be understood as requiring the communication of the whole of the document. He cited Webster’s New Twentieth Century Dictionary, (unabridged, 2nd edition), in which “content” is defined to include:
1. Usually, all that is contained in something; everything inside; as the contents of a jar, trunk etc; (b) all that is contained or expressed in a writing or speech; as a table of contents is a list of chapters. (WS 1080)
In addition to the above meaning, Webster’s New International Dictionary (Springfield, Mass: G&C Merriam Co, 1959) defines “content” to include:
3. The sum and substance; the gist, as of a document or discourse; - formerly sometimes in pl., or in pl. construed as a sing. Essential meaning or significance.
The Macquarie Dictionary, (Australia: The Macquarie Library Pty Ltd, 2nd revision, 1987) definition includes:
1. (Usu.pl.) that which is contained: the contents of a cask, room, or book.
2. (Usu.pl.) the chapters or chief topics of a book or document; a list of such chapters or topics.
3. Substance or purport as of a document.
33 The purpose of the provision is to criminalise the unauthorised intentional disclosure of material that has come into a Commonwealth officer’s knowledge or possession by virtue of their office. The appellant’s construction of the provision would produce an absurd result in that a person might remove the coversheet from a confidential report and hand the balance of the report to a journalist with impunity since the whole of the report would not have been communicated. As a matter of ordinary English usage one communicates the contents of a document by conveying the substance or purport of the document or some part of it. Questions of degree may arise in determining whether the contents of a document have been communicated to another. In this case the articles in The Australian drew on material portions of the Risk Analysis report. It was not an error not to direct the jury that the Crown was not obliged to prove all the contents of each report had been communicated.
34 Dr Glennon’s next challenge was to the direction that it was sufficient that the communication of the contents of the document be by indirect means. The Crown submitted that indirect means were sufficient: Kelly per Callaway JA at [11] and Redlich JA and Coldrey AJA at [23]. The point was not raised in Kelly although it does appear that it was assumed that the communication of a document may be by indirect means. In Kelly the Crown case was that the document had been physically handed over to the journalist. Here the Crown did not confine its case in this respect. It was the Crown case that the articles demonstrated that the author/s had been informed of the contents of the reports (or at least the contents of the Risk Analysis report).
35 The Crown Prosecutor in his closing submissions put it this way (T'cpt 25.54-26.14):
The Crown doesn’t need to prove to you that the documents themselves were handed over to any particular person. The Crown doesn’t have to prove to you that there was communication by some particular means, either verbally or given a copy to a particular person. The Crown doesn’t need to prove to you that the communication was directly to either of those journalists. It could have been indirect. For example, a copy might have been sent in to a journalist. A copy might have been left at a location. There could have been communication over the telephone by speaking to one of the persons and reading out some parts of the reports. The Crown doesn’t need to prove that. All you need to be satisfied of is that the Crown has proven beyond reasonable doubt that there was in fact communication. What the Crown says is that you can see that there has been because when you look at the newspaper articles and the reports, you can see that the contents of each of those appears in some parts within the newspaper article.
36 Dr Glennon’s submissions did not develop the distinction between direct and indirect communication. On one view, acceptance of his submission would mean that the offence would be committed by handing a copy of a document to another, but not by posting it to that other. Communication of the contents of a document requires no more than that the contents be conveyed or transmitted to another. This may be done directly by handing the document to another or by reading the document to another. It may be done indirectly by leaving the document on a park bench for another to collect or in any of a variety of ways. The essential feature of communicating a fact or document for the purposes of s 70 is that the communication is intentional. There was no error in the trial judge directing the jury that communication of the contents of the document may be by indirect means. Grounds 2 and 7 are without merit.
The hearsay challenge
37 At the trial Mr Lowe objected to the admission of a copy of The Australian dated 31 May 2005 (exhibit F) on the basis that it was “absolute hearsay”. (T'cpt 12/3/07 269.54) Dr Glennon submitted that the trial judge erred in admitting the document over objection. He supported this submission by reference to a number of authorities dealing with the hearsay rule at common law, including Myers v DPP [1965] AC 1001. In Myers the House of Lords declined to create new exceptions to the hearsay rule, observing that such a task must be left to the legislature. Following the decision the Criminal Evidence Act 1965 (UK) was enacted to overcome some of the restrictions of the operation of the rule.
38 The trial judge was correct to admit exhibit F. The newspaper was received in order to prove the words that appeared in the two articles. This was relevant to proof of the Crown case. The newspaper was not received to prove the existence of a fact that the author or authors of the two articles (or of any other of the material) intended to assert by the representation: Evidence Act 1995 (NSW), s 59.
39 The assertion in the written submissions filed on the appellant's behalf that the trial miscarried because the trial judge directed the jury to compare the copy of exhibit F with the copies of the redacted reports, exhibits A and B, is misconceived. A circumstance in the Crown case was that the article contained quotations from the reports and paraphrased parts of the reports (or at least the Risk Analysis report). The invitation to compare the two did not involve an invitation to use the articles for a hearsay purpose.
40 The Crown did seek to have the by-line “Martin Chulov Jonathan Porter” admitted for a hearsay use. The Crown Prosecutor submitted that the by-line was admissible under s 70 of the Evidence Act as evidence of the fact that Martin Chulov and Jonathan Porter were the authors of the articles. Mr Lowe objected to the reception of the by-line as evidence of the fact of authorship. His Honour did not give reasons for the admission of the newspaper, but he appears to have accepted the Crown Prosecutor’s submission with respect to the operation of s 70. (T'cpt 13/3/07 341.38-39)
41 Section 70 provides:
The hearsay rule does not apply to a tag or label attached to, or writing placed on, an object (including a document) if the tag or label or writing may reasonably be supposed to have been so attached or placed:
(a) in the course of a business, and
(b) for the purpose of describing or stating the identity, nature, ownership, destination, origin or weight of the object, or of the contents (if any) of the object.
42 The Crown submitted that the inclusion of the names, “Martin Chulov” and “Jonathan Porter” under the headings of the newspaper articles was writing placed on the document that may reasonably be supposed to have been placed in the course of business for the purpose of describing or stating Mr Chulov’s and Mr Porter’s ownership of the articles in the sense of their authorship of them. I am not persuaded that is so. In my opinion, the text of an article printed in a newspaper or magazine is not writing placed on an object (including a document) within s 70. Moreover, without addressing consideration of such rights as employed journalists may have in their work published in a newspaper, magazine or periodical it is straining the language of s 70 to hold that the by-line has been placed on the document to state the ownership of the article.
43 Exhibit F was admitted in the course of the evidence of Federal Agent Read on 14 March 2007. (T'cpt 496.1) His Honour directed the jury at the time of its admission that (T'cpt 14/3/07 496.34-55):
Just while that’s being distributed ladies and gentlemen [copies of exhibit F] I want to say something to you about the document which is about to be read to you, and I’ll be going into some detail when I give my directions to you at the end of the evidence and after counsel have addressed. But the document, that is the article which you’re about to hear contains in it a number of representations. Some person has written the article and in that article there are assertions of facts. At this stage you should note that the document is being tendered to prove the fact that those matters were published, that is to say that the fact that the article was written in those terms. The truth of what is said within the article is a completely separate matter, and the document is not to be used at this stage as to the truth of what is said in the article. Simply it’s still a fact that the article was written. When I’m dealing with concepts of hearsay evidence it can be a little complex and difficult to understand. I can tell you a lot of lawyers don’t really understand this concept sometimes. But if you can just note that distinction at the moment and I’ll be dealing with it hopefully in a way that will make it all clear to you at the appropriate time.
44 Mr Lowe addressed the jury on the basis that exhibit F contained an assertion that the authors had obtained a copy of the reports. His Honour referred to this submission in the course of the summing up. He directed the jury that (SU 22/3/07 39-40):
Now I should say something to you about that submission by Mr Lowe because of the principles relevant to what lawyers refer to as hearsay evidence. By embracing the representations to which he invited your attention and which he asked you to accept as evidence of the fact that the report was with News Limited, he is inviting you to accept those particular representations as evidence of the existence of that fact, that is, that there was a hardcopy of the report with The Australian at the time. Now in exhibit F in the first article, those passages upon which he would rely are in the first column about half way down and I quote.“ According to a classified Customs report” and then in the second column of the first article in exhibit F, the first full paragraph and I quote, “The report obtained by The Australian”. Now implicit in the submission that Mr Lowe has made to you is this proposition that he would have you accept that representation as evidence of the fact that it asserts. Well you may do so, but there a number of other representations in the document that you should not approach in the same way. Indeed, the balance of the article in its entirety and the balance of the other article, all of the other article rather, in exhibit F, you should simply view as evidence of the fact that those words were published in the newspaper on that day, for the purposes of comparing what was said and the passages quoted with what appears in exhibit A and B, so that you may draw, if you wish to do so, the inference that at the time those articles were prepared and written they had that text from those reports. That is the basis upon which the Crown tendered the articles and that is the way the Crown invites you to make use of the evidence. Mr Lowe has sought to make the greater use of those particular passages to which I have referred so that you might, in his submission, come to the view that the newspaper had a copy of the reports which would make redundant or unnecessary any need for the accused to communicate by telephone with the journalists or News Limited about the content of the reports.
45 Despite his Honour’s indication that he proposed to admit the by-line “Martin Chulov Jonathan Porter” under s 70 as evidence of the authorship of the article, he does not appear to have done so. Neither the direction given at the time the exhibit was tendered nor the direction in the summing up admitted of the by-line being used as evidence of the fact of authorship. The only assertion in exhibit F which his Honour left to the jury as capable of being used by them as evidence of the fact were the two assertions relied upon by Mr Lowe to establish that that author had a hardcopy of the reports.
46 His Honour summed up on the basis that the Crown case was circumstantial. One of the circumstances that his Honour pointed out the Crown relied upon was that the names of the journalists, Martin Chulov and Jonathan Porter, appeared in the by-line for the articles “allowing the inference the Crown says that they were the authors of those articles”. (SU 22/3/07, 27) The suggestion that the jury might infer from the by-line that the persons named in it were the authors of the article is an approach which has been applied in this State and in Victoria by judges hearing charges of contempt: R v Nationwide News Pty Ltd (Supreme Court of Victoria, 22 December 1997, unreported) Gillard J observed that:
[I]n the normal course of things, a person is not described as the author of an article in a well-known national newspaper without his permission. In my opinion I am entitled to infer from the photograph and name appearing in the rectangular box on p24 as being some evidence that he was responsible for the article.
47 In Director of Public Prosecutions (Cth) v Sexton [2008] NSWSC 152 Howie J adopted a similar approach:
It seems to me that the overwhelming inference to be drawn from the appearance of the by-line in the context of the newspaper as a whole is that the person named in the by-line is the author of what follows and the person responsible for its contents. This is so whether or not some other person within the papers’ organisation also had responsibility for what was published, at least so far as the internal management of the newspaper is concerned.
48 The fact that the name Martin Chulov appeared in the by-line was a circumstance that was relevant to proof of the Crown’s case and did not depend upon proof of the asserted fact, that Martin Chulov was an author of the article. The article could have been written by a sub-editor. The significance, when taken with the other circumstances, was that the name “Martin Chulov” appeared in association with the articles.
MFI 46
49 Following their retirement the jury sent a note (MFI 46) asking:
Does confirmation that the reports are genuine constitute communication of the contents?
Does answering questions raised by Chulov in relation to the contents of the reports constitute communicating the contents of the reports?
50 During the course of the discussion concerning the directions that the trial judge might give in answer to the questions that the jury asked in MFI 46 there was the following exchange (T'cpt 22/3/07 54-55):
HIS HONOUR: It may be that they are looking at what’s contained in the text of the articles to infer that there has been some representation by – or that there has been some investigative role played by Chulov to elicit the information that is recorded in the articles.
LOWE: It’s the no speculate rule that would apply.
HIS HONOUR: I think I’m just going to re visit – the simple answer to those two questions, in my assessment, is “yes” but it should be accompanied by, I believe, a further or a reminder that they should not be using the article for a hearsay purpose beyond that which was advanced by Mr Lowe and that they should not embark upon speculation as to what might or might not have been said by witnesses who are not called. It just seems to me that if they are undertaking that exercise to which I’ve alluded, it may be they’re trying to look at the representation or a representation in that article or one of the articles or both and from that taking the view that it is evidence of the existence of that fact and then saying, “well, if that is the fact, is that an act of communication” which is contrary to what I’ve told them about the hearsay principles.
LOWE: It may be a section 165 direction is required, your Honour. It may be, because it’s hearsay evidence, 165(1)(a).
HIS HONOUR: But it’s not unreliable because they’re only looking at it as to the fact of the publication and they’re asked to compare – and I’ve told them that they should look to the quoted passages for comparison with the content of exhibit A and exhibit B, to see whether they can infer communication from those facts.
LOWE: Yes but it’s the pernicious effect about the third question that’s been posed.
51 Section 165(2) of the Evidence Act requires a trial judge in a case in which there is a jury to give a warning about evidence of a kind that may be unreliable if requested to do so by a party. Section 165(1) (a) – (g) lists the kinds of evidence that may be unreliable including hearsay evidence. Accepting for present purposes that the exchange above can be characterised as a request for a warning under s 165, it was a request for a warning that exhibit F may be unreliable because it was hearsay. A judge is not required to give a warning at the request of a party that evidence is of a kind that may be unreliable if there are good reasons for not doing so. The discussion which followed Mr Lowe’s statement that “it may be a section 165 direction is required” makes plain that the Judge did not give such direction because the jury had been directed not to use the newspaper article for a hearsay purpose. His Honour’s failure to give a direction that the copy of the newspaper article, exhibit F, may be unreliable because it was hearsay was not an error: the only hearsay use which his Honour directed the jury they might make of the contents of the article was the use that the appellant's counsel invited them to make.
52 Neither Martin Chulov nor Jonathan Porter gave evidence in the Crown case. Mr Lowe asked the trial judge to give a “full Jones v Dunkel” direction ([1959] HCA 8; (1959) 101 CLR 298). (T'cpt 21/3/07 74.39)
53 Federal Agent Read gave evidence of inquiries made by himself and by another officer concerning Mr Chulov and Mr Porter. Neither journalist had been willing to provide a statement or to assist the AFP in the investigation of the matter. Officer Read had been informed that Martin Chulov was overseas as at January 2006. He sent an email to Mr Chulov on 26 February 2007, to which he received a response from Mr Chulov on the same date advising that Mr Chulov’s position had not changed. The emails were in evidence, exhibit J. Mr Porter was in the jurisdiction. The Crown had served a subpoena on him to attend and give evidence at the trial. The Crown Prosecutor informed the Court that it was not his intention to call Mr Porter.
54 In Dyers v R [2002] HCA 45; (2002) 210 CLR 285 at 291 and 295 Gaudron and Hayne JJ observed:
Further, as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution’s failure to call the person in question was in breach of the prosecution’s duty to call all material witnesses.
55 There was an explanation given for the circumstance that neither Mr Chulov nor Mr Porter were called at the trial in the Crown case.
56 Dr Glennon pointed to the reasons given by the Crown Prosecutor in the absence of the jury, for the decision not to call Mr Porter (T'cpt 8/3/07 151.49-54):
… the Crown’s position at the moment, as I indicated yesterday, the Crown does not wish to call Mr Porter, the Crown has had a subpoena issued and served so that he may be made available should the defence require him. We don’t know what he will say, he won’t assist, he won’t cooperate, he is an unknown quantity, your Honour.
In Dr Glennon’s submission, the Crown made a “nakedly tactical” decision not to call Mr Porter and called for a Jones v Dunkel direction.
57 This evidence was that neither journalist wished to cooperate with the authorities in the prosecution of the appellant. On the hearing of the appeal the Crown submitted that the prosecutor’s forensic decision not to call Mr Porter was reasonable. This was because it was highly probable that if called Mr Porter would decline to disclose his source. There was no reason to consider that Mr Porter’s evidence would tend to exculpate the appellant. As a matter of practical reality, calling Mr Porter was likely to be a distraction in that time would be taken up with consideration of the scope of the “protected confidence” privilege under s 126B of the Evidence Act and in the event that such a claim were unsuccessful with the prospect of Mr Porter nonetheless refusing to identify his source. The latter course, it was suggested, might occasion further delay arising out of consideration of contempt. In light of the results of the AFP’s inquiries and the ethical obligations of journalists with respect to the protection of the identity of sources, the Crown Prosecutor’s assumption that Mr Porter’s evidence was unlikely to advance either the Crown’s or the appellant’s case was reasonable. There is no basis to characterise the decision as a tactical one reflecting a view that Mr Porter’s evidence was unlikely to accord with the “Crown case theory”: cf R v Kneebone [1999] NSWCCA 279; 47 NSWLR 450. The trial did not miscarry as the result of the decision not to call Mr Porter in the Crown case. There was an explanation for the fact that the Crown did not call either journalist in its case. No occasion arose for the Judge to give a Jones v Dunkel direction.
58 The trial judge raised with counsel the response to be made to the jury’s two questions contained in MFI 46. (T'cpt 22/3/07 53-60) The questions are set out at [49] above. In the protracted discussion that followed, Mr Lowe’s submissions ranged from the suggestion of a s 165 warning to a renewed request for a Jones v Dunkel direction. They fastened on the concern that the jury may be engaging in impermissible speculation. It was not clear how Mr Lowe suggested that trial judge should answer the questions. The answer that the Judge gave is set out as follows: (T’cpt 22/3/07 62-63, 65):
In simple terms, one might answer both of those questions with “yes” but it is a little more complex than that and I need to go into some of the matters that I have already spoken about to you. “Confirmation that the reports are genuine” may involve a range of communications that in some instances may amount to a confirmation or rather amount to a communication of the contents, or it might not quite get across that threshold, depending upon what was said. The fact is there is no evidence of precisely what was done to communicate the contents of the report. The Crown has said to you that the evidence allows as the only rational inference that the accused communicated the contents of the report and communication of the contents of the report may have taken various forms, the precise nature of which is just not known. For example, the communication of the contents of the reports may have been by way of the document or documents in their hardcopy. The communication of the contents of the reports may have been by reading parts of the reports out to the person to whom the information is being communicated. The contents of the reports may have been communicated by way of an intermediary, or by an indirect route, to those to whom the Crown has said that the reports or the contents of the reports were communicated; from the accused to another person through a chain, as it were, with the purpose eventually to reach the journalists for the purposes of their publication. The Crown is not in a position, and indeed you are not in a position, to say one way or the other how that communication actually took place, but the Crown says that the evidence establishes that beyond reasonable doubt, and by way of the only rational inference, that the communication did take place, that is a communication by the accused to the journalists, directly or indirectly. Now, it may also be communicated, that is the content of the reports may also be communicated in circumstances where the report or reports have been provided to the journalists and one or both of them have engaged the accused in conversation to discuss the contents of the reports, as you have asked, to confirm the accuracy or the bona fides or the veracity of some or all of the contents of the reports. The Crown is not obliged to prove that all of the contents of the reports were communicated. Any part of the contents of the reports would satisfy that particular element of the charge, if they were communicated directly or indirectly by the accused to the journalists.
…
As I told you earlier, Mr Lowe said, there are two passages in that newspaper article that would lead you to the view that The Australian had copies of the reports, a hardcopy of the reports, and therefore the telephone calls, the contacts, the particulars of the phone numbers found in the possession of the accused are really neither here nor there because why would he need those if there’ve already got a copy of the report? Well, if they do have a copy of the report and there is this telephone contact and there are communications between the accused and the journalists, to confirm or discuss the content of the report, that may be a communication of the content of the report for the purposes of this provision and this charge and if that was something of which you were satisfied beyond reasonable doubt as an inference, the only rational inference to draw from the evidence that is before you, that is a finding that you may come to.
59 After giving this direction the trial judge asked counsel if they wished him to revisit any aspect of it. Mr Lowe responded, “No I don’t think they’re shy from coming forward your Honour”. (T’cpt 22/3/07, 73)
60 The submissions filed by Dr Glennon contended that his Honour’s initial answer “yes” to the jury’s question was wrong. The submissions went on to assert that the great vice in the directions was “the potential for speculation and great confusion leading to a miscarriage of justice”. (WS [96])
61 The jury’s questions raised whether it was sufficient for the Crown to establish that the appellant had confirmed the accuracy of material that the journalists had obtained from another source. His Honour directed the jury that it was. The direction was wrong. The offence under s 70 may be committed by publishing or communicating a fact which came to the knowledge of the accused by virtue of having been a Commonwealth officer or by publishing or communicating a document which came into his or her possession by virtue of having been a Commonwealth officer or by both. This was a case in which the offence charged was the communication of the documents. To confirm the accuracy of a document leaked by another to a journalist may be to communicate a fact, but in my opinion it is not to communicate the document. In any event, the Crown case was that the appellant was the person who was the source of the “leak”.
62 In written submissions the Crown acknowledged that the opening words of the direction at [58] above was wrong, but the Crown submitted the opening words were to be understood in the context of the whole which was said to have emphasised the need not to focus on what the nature of the communication might have been but rather on whether the Crown had established that it was the appellant who had communicated the contents of the reports.
63 The Crown’s submission is to be assessed against the highlighted parts of his Honour’s direction set out at par [58].
64 Dr Glennon submitted that defence counsel had repeatedly “voiced objection to the many areas of speculation that his Honour touched upon” during the exchanges before the direction was given. (WS [102]) This submission has the same opacity as the submissions made at trial. At the commencement of the discussion the trial judge expressed the provisional view that confirming the genuineness of the reports would amount to communicating the contents of the documents. (T'cpt 22/3/07 53) At no point in the lengthy discussion that followed did Mr Lowe submit that to answer the jury’s question in this way was wrong in law and was not the case that the Crown had run. He did not request any re-direction after the answer was given. On the hearing of the appeal the Crown did not submit that leave should not be granted to allow the appellant to rely on ground 6 by reason of r 4 of the Criminal Appeal Rules. As noted, the matter was argued on the appellant's behalf on the assumption that leave was not required because counsel, “made clear his objection to his Honour’s course of proposed directions, which touched upon the questions posed by MFI 46”. (WS [103]) This overstates the position. However, since the question of leave under r 4 was not agitated on the hearing it is not appropriate to refuse leave to permit the appellant to rely on a ground of appeal that has been made good. The trial judge’s directions given in answer to the two questions asked by the jury were wrong. The consequences of this error will be addressed after dealing with the remaining grounds of appeal.
The directions concerning MFI 1 and MFI 2
65 Exhibits A and B were redacted copies of the reports. Full copies of each report were MFI 1 and MFI 2 respectively. During the course of their retirement the jury sent a note (MFI 52):
We have found extracts in The Australian (31 May 05) articles that indicate they could only have come from the draft “Tarmac Report” (exhibit 2). We wish to be sure that these extracts do not exist in MFI 1 and/or MFI 2, example exhibit F, second column, second para – “it says baggage handlers, etc” and relates to exhibit 2 page 4. Also the reference to Operation Barina does not exist in MFI 1 or MFI 2.
66 Exhibit 2 comprised an email with an attachment being another redacted version of one of the reports.
67 The trial judge directed the jury that MFI 1 and MFI 2 were not exhibits and that they could not be given access to either of them. His Honour’s directions in this respect are not the subject of complaint. The Crown Prosecutor asked the Judge to give the jury a further direction to the effect that it was not necessary that they be satisfied beyond reasonable doubt that everything in the articles came from the reports. His Honour gave the jury this further direction (SU 26/3/07 9):
It is not necessary for you to be satisfied beyond reasonable doubt that everything appearing in the newspaper fell from the reports. If some of what appears in the newspaper is established by the Crown to be content of the reports that would be sufficient for the Crown to have established that particular aspect of its case, because we are not talking about the question of who was the person who did the communication, we are just talking about whether or not there had been communication by some person. But relevant to that question, it is not necessary that you look at the newspaper article and be satisfied beyond reasonable doubt that all that you read there came from the reports before you could find that the Crown succeeded on that one particular aspect of the case. If you came to the view beyond reasonable doubt that there was some content from the reports, of which exhibit A and exhibit B are the redacted copies, were published or found their way into the newspaper articles in exhibit F, that would be sufficient for that particular aspect of the Crown case.
68 In the written submissions filed on the appellant's behalf it was contended that the redirection was unnecessary and not responsive to the issues raised by the question in MFI 52. The answer to the question asked was that the material was not in evidence. The further directions, so it is said, had the potential to cause “further confusion to the jury”. Beyond this assertion, the submissions do not identify any error in the direction or expound on the respects in which the direction is said to have been susceptible of causing confusion. It was open to his Honour to consider that simply informing the jury that they could not have recourse to material that was not in evidence was an insufficient response to their query. There is no merit to this ground.
The admission of the appellant's emails
69 Mr Lowe objected to the tender of a printed copy of an email dated 9 June 2005 from “Allan Kessing” to “Donnata Scattolin” (exhibit M). The subject of the email was stated in the heading as “Out at Last”, the body of the email read as follows:
Donna, perhaps you have heard on the grapevine that I finally quit. After all the argument with Beach over time off for my mom’s leukaemia needs, he had the gall to smarm at me on the first morning back “how’s your mum”. It was all I could do from flattening him then & there so I just typed out I RESIGN sent it via email and dropped a hardcopy on his desk before taking my place on the Line. Do you reckon I feel light & free???? I walked out of that air conditioned hellhole feeling like a 20 yr old and haven’t given it a moment thought since.
Except when I open my email and see your last so I shall ring you when I next have a window ‘twixt Mum and Margaret.
It feels so good I thoroughly recommend you pull the plug too, esp with the latest bullshit from John Anderson, $200M to upgrade airport security but we need a Pom to figure out how! I’d love to know who leaked the report to the press because there aren’t that many who would be privy to it, surely less than a dozen. I had to laugh when first all & sundry were denying it, then running for cover and now blowing the budget. Typical arse covering without actually doing anything effective, wotta surprise!
70 Mr Lowe submitted that the email was not relevant and, in the alternative, that it should be excluded in the exercise of the discretions under s 135 or s 137. (T'cpt 15/3/07 591.35-58) His Honour considered the relevance of the email to be its capacity to demonstrate that the appellant entertained feelings of acrimony towards the ACS. He asked Mr Lowe what unfair prejudice would be occasioned by its admission. Mr Lowe responded, “because in the scheme of life one is entitled to lose your temper”. (T'cpt 15/3/07 593.29-30)
71 Dr Glennon submitted that it was an error to admit exhibit M, since while it was capable of showing the appellant's hostile feelings towards Mr Beach, an individual, it was not capable of demonstrating acrimony towards the ACS as an organisation. While the contents of the email evidenced the appellant's resentment of Mr Beach’s attitude concerning his leave, it was capable of being understood as evidencing a wider disillusionment with the ACS at the material time. It was relevant to the question of whether the appellant had a motive to seek to embarrass the ACS by the exposure of the matters that were the subject of the Risk Analysis. It was not incumbent on the Crown to prove a motive, however, this is not to say that evidence capable of establishing a motive was not relevant. No danger of unfair prejudice was identified in the course of the submissions at the time the objection was taken. His Honour did not err in concluding that the probative value of exhibit M was not outweighed by the danger of unfair prejudice to the appellant.
72 A bundle of emails relating to the appellant's unauthorised absence from work were admitted (exhibit E). Dr Glennon submitted that it was an error to admit these documents because they were not relevant to any issue in the trial. The emails were capable of establishing that in the period leading up to his resignation the relationship between the appellant and his superiors within the ACS was a poor one. In the Crown’s submission, they were evidence demonstrating that the appellant was a disgruntled and insubordinate employee, possessed of a motive to embarrass the ACS. Dr Glennon submitted that this construction was not supportable. Rather, he submitted that the emails showed the ACS accommodating the appellant by the provision of extended leave. This was a question for the jury. The correspondence was plainly capable of bearing the complexion which the Crown advanced. There is no substance to grounds 9 and 10.
The proviso
73 The appellant has established that there was a wrong decision on a question of law within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW). The Crown submitted that in the event the Court found error, the appeal should nonetheless be dismissed under the proviso in s 6(1) in that no substantial miscarriage of justice actually occurred.
74 In deciding whether a substantial miscarriage of justice has actually occurred the Court must make its own independent assessment of the evidence and determine whether, making due allowance for the “natural limitations” that exist in proceeding wholly on the record, the guilt of the accused was established beyond reasonable doubt: Weiss v R [2005] HCA 81; (2005) 224 CLR 300. As the Court explained in Weiss, this task is undertaken in the same way as the determination of whether the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence: at 316 [41].
75 In some cases the nature of the error made at trial is such that regardless of the assessment of the strength of the evidence it would be inappropriate to apply the proviso. Cases involving a significant denial of procedural fairness or where the consequence of the failure of process at trial has been to deprive the appellate court of the capacity to justly assess the strength of the case against the appellant provide examples of such instances: Weiss at 317 [45]; Nudd v R [2006] HCA 9; (2006) 80 ALJR 614 per Gleeson CJ. This is not a case involving error of those kinds. The erroneous direction did not involve such a departure from the essential requirements of the law as to go to the root of the proceedings: Wilde v R [1988] HCA 6; (1987-1988) 164 CLR 365 per Brennan, Dawson and Toohey JJ at 373.
76 The appellant contends that the verdict was unreasonable and cannot be supported by the evidence. The Crown submits that the case overwhelmingly established the guilt of the appellant, such that the wrong direction was not productive of a substantial miscarriage. Both contentions require this Court to undertake an independent assessment of the evidence. The Court is required to undertake the same exercise, but the questions to be determined are different. The appellant's ground requires the Court to decide whether upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty: M v R [1994] HCA 63; (1994) 181 CLR 487 per Mason CJ, Deane, Dawson and Toohey JJ at 493. The application of the proviso involves consideration of the negative proposition stated in Weiss, which is that it cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved beyond reasonable doubt the appellant's guilt of the offence: at 317 [44].
77 In Gassy v R [2008] HCA 18; (2008) 82 ALJR 838 Gummow and Hayne JJ at 848 [35] noted that the jury in that case had deliberated for a relatively lengthy time. Their Honours observed that the difficulties the jury experienced suggested a need for caution on the part of an appellate court before concluding on a review of the record that the offence charged was proved beyond reasonable doubt. That is a caution which is to be borne in mind in assessing the Crown’s submission in this case that the appeal should be dismissed pursuant to the proviso. There was a lengthy retirement in this case.
78 Dr Glennon’s submission in support of the ground that the verdict could not be supported on the evidence did not descend to an analysis of the evidence. The submissions were focussed on what were said to be the factual and legal similarities between this case and Kelly. In Kelly the Court of Appeal, by majority, directed an acquittal. An assertion that a verdict cannot be supported by the evidence necessarily turns upon the facts of the case and is not helpfully advanced by reference to the outcome of an appeal in a case involving different facts. It is to be noted that in Kelly there was evidence of telephone contact between Mr Kelly and the journalist who had received a leaked copy of a draft ministerial statement. That circumstance may be thought similar to one circumstance in this case. Some dissimilarities between the two include that the draft ministerial statement had been furnished by email to about 300 employees of the Department of Veterans’ Affairs throughout Australia. No security was attached to the emails and hardcopies of the attachments had been printed. After the decision to withdrawn the information there had been no systematic recovery of the hardcopies. The journalists to whom the statement had been leaked were based in Canberra and Mr Kelly was based in Melbourne.
79 A comparison of the copy of The Australian for 31 May 2005, exhibit F, with the redacted copies of the Risk Analysis and the Threat Assessment reports clearly demonstrates that the author/s of the articles had access to the contents of at least the Risk Analysis report. The central question is whether the Crown established beyond reasonable doubt that it was the appellant who communicated the contents of the report/s to the author/s of the articles.
80 The Crown relies on the following circumstances to prove the intentional communication of the contents of the Risk Analysis:
(a) The appellant was a former ACS officer who had worked in the secure area known as the Air Border Security (ABS) team.
(b) Each of the reports had been authored by his superior officer, Ms Magni, during the time when the appellant was a member of that team.
(c) The appellant, with other members of the ABS team, had worked collaboratively on certain parts of the reports during their compilation. He had worked as a researcher for the first report, the Threat Assessment report (exhibit A).
(d) As a member of the ABS team, the appellant received, or had access to, copies of both reports for reading and review. These were provided in electronic and hardcopy. He had received electronic versions of the reports from Ms Magni and in respect of the Risk Analysis report had replied to Ms Magni via email with suggested amendments and comments.
(e) Copies of the reports, containing the text and content that was published in The Australian on 31 May 2005, were found in the premises in which the appellant was residing, his home residence and his mother’s residence, during the execution of search warrants on 6 September 2005. The Threat Assessment report (exhibit A) was located in a box in the bathroom of the appellant's home at 100 Darling Causeway, Mount Victoria and a copy of the Risk Analysis report (exhibit B) was located in an envelope on the floor, in the spare room of the appellant's mother’s home at 30 Lilydale Street, Marrickville.
(f) The appellant resigned from the ACS on 10 May 2005.
(g) There was evidence from which it was open to conclude that the appellant was a “disgruntled employee” with a motive to seek to embarrass the ACS or to publicly expose what he perceived to be its inaction regarding the subject matter of the reports.
(h) The business card bearing the name Martin Chulov was located during the search of the premises at XXXXX on the floor of the room in which the Threat Assessment report had been located. The business card bore the contact telephone numbers for Mr Chulov and an email address chulovm@theaustralian.com and the business address of The Australian printed on it.
(i) A notepad (exhibit N) on which were written Mr Chulov’s mobile telephone number and email address was located on a dresser next to the bed in the main bedroom of the appellant's home at Mount Victoria.
(i) Call charge records for the appellant's home land line service connected at 100 Darling Causeway, Mount Victoria revealed telephone calls made from that service to telephone numbers allocated to The Australian on seven occasions between 26 March and 28 May. The telephone calls varied in duration. A call on 24 May 2005 at 6:40pm was of 21 minutes 49 seconds duration.
(j) Call charge records for the land line telephone service connected to the appellant's mother’s home revealed a telephone call to a telephone number allocated to The Australian on 28 March 2005.
(k) Call charge records for a public telephone located in Lilydale Street recorded a call at 12:26pm on 30 May 2005 to the mobile telephone service identified as Martin Chulov’s service, the number recorded on the notepad found in the appellant's bedroom. The public telephone was approximately 70 metres from the appellant's mother’s home.
(l) The article published in The Australian on 31 May 2005 bore the name Martin Chulov in the by-line.
Each of these circumstances was established by unchallenged evidence that did not depend on an assessment of the credibility of witnesses. As I have noted, there is an issue concerning whether the evidence of the email communications established that the appellant was a person with a motive to seek to embarrass the ACS. In my opinion, the contents of the emails is eloquent of the fact that he was.
81 Ms Magni and each of the officers in the ABS Team at the time the two reports were prepared gave evidence at the trial. Each denied being the source of the communication. Ms Magni was cross-examined to establish that she was disgruntled in the way the ABS Team and the reports had been treated. She agreed that she had been unhappy about the fact that her small ABS Team was being subsumed into a larger group. She explained that her unhappiness arose from the lack of communication about how this transition was to take place. (T'cpt 19/3/07 646.19-27) At the time of giving evidence Ms Magni was still in the employ of the ACS. Members of the ABS Team who had been given access to the reports at the time of their preparation each stated that they had not forwarded electronic copies to anyone outside the ABS Team, nor had they made hardcopies of the reports. None had taken copies of the reports outside the secure ABS Team room.
82 Each officer who had worked within the ABS Team, between the time the reports were created and 31 May 2005, was called to give evidence, save for one officer, Peter Anastasi, who had left the ACS and who was understood to be out of the country. Each of these officers denied communicating the content of the reports to any person outside the ACS. Each gave evidence that they had access to the reports within the secure ABS Team room and that they had not made any copies of the reports nor taken copies of the reports out of the ABS Team room.
83 Ms Magni had supplied hardcopies of the Threat Assessment and Risk Analysis reports to her immediate supervisor, Mr Pappas. Copies of the reports had been furnished to Mr Pappas’ superiors. Copies had been sent electronically to identified senior officers of ACS. Each of the officers who had received a copy of one or more of the reports was called and gave evidence denying that they had communicated the contents of the reports to person outside the ACS.
84 Contrary to the appellant's submissions, the evidence did not establish that prior to 31 May 2005 copies of the reports had been distributed to the AFP, other law enforcement agencies or the Airports Corporation. Ms Oderberg, the ACS liaison officer attached to the AFP, had been supplied with a document, but this was not a copy of either of the reports. The document that Ms Oderberg had communicated to the AFP was authored by Jess Hemmings. Mr Max Moore-Wilton, of the Airports Corporation was supplied with a copy of the reports, but this did not occur prior to the publication in The Australian on 31 May 2005.
85 The evidence showed that a number of persons within the ACS had been given hardcopies or electronic copies of one or both of the reports. It did not establish that no person other than the appellant could have communicated the contents of the reports to Martin Chulov or any other person at The Australian. The fact that the appellant had taken home copies of each report demonstrated that the security measures adopted by Ms Magni and her superiors were not failsafe.
86 The evidence established that the Threat Assessment and the Risk Analysis reports were treated within ACS as confidential documents with restrictions on the circulation of each. The evidence of the security measures adopted with respect to the reports was a circumstance to be taken into account in considering as a rational hypothesis that another officer within the relatively small group of persons who had access to the reports had also taken a copy of each, or at least the Risk Analysis report, from the secure ACS offices at the airport. It was not without significance that the appellant undoubtedly had taken copies of each report from the secure ABS Team room and kept them at his places of residence, notwithstanding his obligation to return material at the time he ceased his employment with the Commonwealth.
87 This was a powerful circumstantial case in which the overwhelming inference was that the appellant was the person who communicated the contents of the reports (or at least of the Risk Analysis report) to Mr Chulov. I am satisfied that the Crown established the appellant's guilt of the offence beyond reasonable doubt. Notwithstanding the erroneous direction given by the trial judge in answer to the questions asked by the jury, I have concluded that no substantial miscarriage of justice actually occurred and, accordingly, I propose that the appeal be dismissed.
88 ROTHMAN J: I agree with Bell JA.
89 PRICE J: I agree with Bell JA.