http://circus.waddayano.org/blog/ All the fun of the circus, but the clowns are all real en Copyright 2008 Sat, 01 Nov 2008 18:03:20 +1000 http://www.sixapart.com/movabletype/ http://blogs.law.harvard.edu/tech/rss Darkness never fully retreats in the valleys of the high Hindoo Kush. Valleys so narrow, so steeply sided that the sky is a narrow slit in the rock walls. Even in the burning, thin air of arid summer Night barely withdraws to the shadows of overhanging cliffs. Boulders and even larger pebbles have hintergrounds of cold born fungi or primeval lichen. Where men can scrape an existence they will, without joy or ease, always envious of those whose tribal lands have soil enough to anchor grass or tree roots. No grain can grow above 14,000ft and few plants apart from taryark and charass. Those who live here are as hard and pitiless as their surroundings. All is prey, flora, fauna or man. Yet it was in an even higher valley, half beyond the snow line, that Zahir chose to abide. Here it was that they caused grain, nuts & fruit to grow. His beasts throve but he had only daughters and his daughters threw only females. Many men came seeking wives and most remained. The few who left were alone. Except once, the eldest daughter accompanied a man. She returned, decades later, wise of a strange science with shining tools, a woman whom even her mother, the Begum, consulted. Shots cracked through the rapidly returning darkness at the close of another grindingly arduous day. The livestock was already within the walls, rangy goats more useful for their matted coats than any meat or milk they might yield, some wild fowl and a dzo that never walked further from the compound than a boy can spit, hand fed, leaf by leaf, such sharp brittle grass as could be gleaned from the scree. Three shots, separate and distinct, in the icy evening air, a signal that strangers approached, seeking shelter, in the lee of the walls at least, if not within. The men within grabbed their rifles and climbed to the roof, the women and children withdrew to the innermost room, dark and windowless. Four men, leading six horses, come into sight, holding their rifles flat, high above their heads to indicate no threat. The men in the compound took aim at the approaching group, mostly AK47s, Landi Kotal made Lee Enfields and nameless local designs, shotguns choked down to rifle spreads, blunderbusses that could fire stones. Zahir favoured his 2 metre gazal, its barrel brass bound, delicately filigreed, the short triangular stock ivory inlaid, made a century before. His eyes were no dimmer than when he was a soldier, decades before, but prefered to ask Salda, his eldest son, what he thought of the nearing men. Salda, son of a third, younger wife, knew his father’s sight was not failing, as did all within the keep, but was pleased to be asked. He was well past his maturity, when he could have expected his ancient sire to pass on his blessing and control, but Zahir remained master of all. His father had got a boy child at last, on the Begum, his first, oldest wife and, like all old lions so blessed, was besotted with him. A precipitate move to usurp his father could end in his being banished or shot so he bided his time and held his tongue. The strangers stopped about a hundred metres short, their weapons still held high, awkward and uncomfortable and unthreatening. If they were lowered, the defenders would open fire in a heartbeat and shred the strangers. To Salda they looked like plains badmash, though anyone who been further south than the upper foothills were considered plainsmen. They were wearing store bought pesharwi cloaks and turbans. The horses were heavily loaded, and all were saddled. He directed three men to guard the rear of the fort in case there were others approaching secretly. The leader of the strangers gave his rifle to another and walked forward, arms held wide, hands spread open and empty. “We have our own food! We seek only fire and the shelter of your walls, O Lord of the Valley” he said formally, in an accent that placed him many hundreds of kilometers south. “We can pay gold or trade as you prefer.” Salda had never been further than Pesharwa but Zahir, in his far away youth, had learned the dialects of many tribes & regions. He had been to Karachi with his Raj regiment, even down into the subcontinent, where the barely clothed men were little more than moneys. “Let them come forward” he said to his son, “see that the men keep them in their sights.” This would be Salda’s first opportunity dealing with intruders, he was keen to make no mistakes. He stood up, his torso now unprotected by the wall and stepped onto the high platform to look beyond the horsemen. There was no-one else visible to the horizon. “Come forward in the peace of Allah” he called. “Al hamdul Allah” replied the stranger and turned to wave his companions forward. Now they were at their most vulnerable, approaching closer with a horse in one hand and their rifles slung or held backwards so they walked silently, meekly, eyes on the darkening ground to avoid stumbling or making sudden moves that could be deemed aggressive. They stopped a stone throw off, waiting as the small door beside the gates opened. Salda waved forward his two strongest cousins to meet and examine them closely - Abdul his mother’s brother’s older son and Ahmed, called Bakri – the Goat - for his wild, unpredictable nature. He was a dangerous man, honourable but given to strange moods. The leader slowly pulled aside his heavy cloak to reveal his large knife and indicated that his companions do the same, hands high away from the hilts. Abdul signed to Zahir that he was satisfied with their demeanour and behaviour. Salda ordered the main gates be opened and the cousins stood on each side as the horsemen walked through slowly, into the caravanserai. The defenders above still kept them in their aim as Zahir came down the steps to give final approval and formal welcome. As long as they were within the walls they would be under surveillance of one of the old warriors and two or three of the younger, unblooded boys, eager to kill at the first sign of threat. The strangers stacked their rifles along the far wall and approached the tall, wide shouldered patriarch, touching their foreheads and salaaming. Young boys began to emerge from the shadows, ready to tend the horses. The leader approached Zahir, bowed and said, “Allah be praised that you allow weary travelers to share your bounty. I am Muhammed bin Walid bin Sayyid, of the clan Makhan, sons of the Prophet in far away Sind. My companions owe me fealty and two are kinsmen.” Zahir recognized the accent of the far south western deserts, “You are Baluchi?” It was a deliberate provocation to an Urdu speaker claiming to be from Sind, on the other side of the country. His response would decide whether they died or sat by the fire. “My mother’s fathers were satraps in that heretic country, they killed Baluchii for sport. Many times in my youth I joined them. For my shame my tongue sometimes remembers those days civilizing the unworthy.” He turned and spat in showy distaste. Zahir nodded. Even if untrue, it was a sound answer, perhaps a bit too formal but the decorums were being observed. “Two you call kin – who is the wolf that stands by the pack horses?” Muhammed turned his head towards the fourth man, “He is a Punjabi, a family exiled from the land of djinn worshippers when the Ferangi Empress left. They were maulana but he was unable to wear the white yamul. I hold him dear and he owes me his life.” Zahir had been one of the King’s Rifles, as had his cousins for generations, serving the Ferangi Empress. He knew the djinn & idol worshippers, their near naked women and unclean meat. “You and your companions may shelter here tonight. See to your beasts and join us in bread & salt.” “Inshal Allah”, breathed Muhammed with a deep salaam. His men raised their hands to their turbans with relieved “Al hamdul Allah”s. They visibly relaxed and began to unload the horses as Zahir and Salda returned to the inner yard. The rifles on the walls above came away from shoulders but eyes remained fixed. The older boys began to move forward, eager to see what ever these strangers had, did or said. Some hours later, well enough fed on their own supplies and the meagre vivand that could be spared from the yield of Zahir’s land, talk began. The women of the family would be hungry for days to make up the largesse but it was a beneficial bargain. The travellers could barter ammunition, pretty ribbons of silk and that most prized of trade, news from beyond the hills. In the darkness of the edge of the firelight all but the youngest boys sat quietly, sleepy but wide eyed, taking in every detail of the visitors. Soon they would need to explain their presence in Zahir’s fiefdom, far from trade routes and surrounded almost entirely by the eternal snows of the Hindoo Killers. Salda began his examination of Muhammed. Zahir and the other men watched for signs of lies. “You came from the valley of the Waleeds, by the high pass. A difficult path even when the season is strong. ” It was not a question, there could be no affront. “They were not so hospitable as your Lord, no salt nor fair speech. We were six there and they levied us sorely for we had a blue eyes with us.” He spat into the fire in real disgust. A murmur went through the men, “..the extra horses..”, and the children, jostling each other, squirmed closer. This was news indeed, a ferangi where none had been in living memory, even in tales. “He payed us in gold to guide him to the Broken Tooth”. He lifted his face northwards to the jagged peaks beyond the walls, “but the Waleeds would not allow us to travel up to their highland. They forced us out of their valley, to yours or to die in the snow above.” Silently the men of Zahir waited; where was this infidel now? If these men had simply killed him for his wealth he would not have been mentioned. And still there was an extra saddle horse. “We did not kill him, we are honourable men,” grumbled Muhammed, anticipating their thoughts. “He came to us from a Hajji in Landi Kotal, with whom he was in alliance and now we must return there else they will think as you did.” Salda waved away such a suggestion but he could not resist asking, “He was allied to a Hajji, an infidel?” “He was ferang but a musselman. He had studied at Deoband with the Hajji’s son, or so it was said. He spoke urdu like a Khan and pushtu better than a kabulli. And he was stronger than any man I’ve ever known. On the pass into your land the path was blocked by landslide. As we cleared a way there was a boulder that three of us could not move but he pushed it aside. We rested a little after getting the horses across but when we prepared to descend he was gone.” “Had he fallen?” asked Salda, still suspicious. “He left us! He left his horse, even his knife -" he nodded at the large nepali triset on the better leathered horse,"- taking only his staff and a small pack of his own, strange, food, leaving all else. We knew that we would be accused of treachery and intended to bring all his possessions back to the Hajii to disprove this. That is why we have another saddled horse. One of our number did not agree and he wanted the ferangi’s property for himself. He would not yield, fought Ursa”, indicating the Punjabi, “and died. None will mourn him, let him rot nameless in dishonour.” Zahir leaned forward and said to Salda “The ferangi wanted to go to Broken Tooth. From that pass it is possible to follow the ridge to the summer meadow below its slopes.” Salda asked Muhammed, “Did it seem he knew the way?” “He was wise in such things, he carried the glass that is used to point the way to pray. When denied passage up the Waleed’s valley, we wanted to turn back but he looked to this thing and said we would climb the ridge. Yet he did not take it with him.” He withdrew from his vest a Zeiss emmascope, with its various lenses & compass. “What would he want at Broken Tooth? The food he took was only a few tola, no more than a sear. He took only enough for a week at most. Without a horse he could not even reach this land, or the Waleeds, before starving.” Salda had been to the summer meadow often as a boy, tending the evil eyed goats. It was a hard climb of many days and nothing lived there for a believer to eat, only scanty, short lived grass and purest snowmelt water. It was only enough for a week’s fodder and, after freezing nights with such fire as could be coaxed from the previous year’s droppings, it was a relief to return. He had seen dark caves high above of which the old men spoke in fearful whispers and, young and fearless, had tried to climb to them two or three times. He recalled his dilemma each time, never getting closer than two or three sling lengths. It seemed than he was always turning from the straight climb despite greater determination as he grew older. He’d last tried during his thirteenth summer and had kept his eyes on the dark openings as he climbed, not even looking down as he clambered over boulders but still he could not reach them. Since then the meadow grazing fell to younger boys as he grew into his man’s duties. He’d never spoken of these attempts for Zahir was a stern son of the Faithful and the dark tales were of djinns and worse. “Father, what do you think, should we seek this ferangi? Zahir, recalling his time in that meadow beyond the memory of any that now lived, except for the Begum - he would ask her to bring out her necklace this night - answered, "If he is lost he will be dead. If he is not he has gone beyond us." To Salda it seemed that his father was in reverie, and he waited. He had strange ways and sometimes Bakri seemed to be more his son than Salda or the chota wallah so often on his knee, still gurgling breast milk and uncircumcised. No-one knew, nor dared ask, Bakri's lineage. He had been brought to the keep by Zahir, when still a boy, after he had travelled south to the livestock markets many years before and that was the end of it. He would never lead but worked harder than any two of the clan. He had not sought a wife from the daughters of the valley, as if they were his blood kin but had found a wife elsewhere. Soon she would add to the numbers of children. A strange woman, closer to the Begum than her other women, all of whom knew that she was carrying a boy. He had reached the dark cave, a hundred years earlier and never spoke of it to anyone. The Begum had watched him struggle to the cave entrance. Zahir thought on his day in the summer pasture. Since then he had lived long with her and she had found him the other wives, who had sons not only daughters, but they had never doubted that their son would arrive in due course. Then, long after it should have ceased to be with her after the way of women, the princeling was … delivered. Salda and the other men joked in private about his love of the little prince, come from loins that had opened before any of them had been born. Some of the more curious had asked their wives how that was possible but had no answer that a man might repeat. Soon, Salda believed, Zahir must give up his command yet he was as sharp and knowing as he had been for decades. The Begum's complete control of the women, normal in such extended tribal societies, was unchallenged. Even when with their men, the usual time for powerplays, they did not wheedle and nag for added influence. It was one of the unusual strengths of Zahir's fort, there was no internal dispute. None could recall, in their lives or that of their parents, at time when he was not lord of all. The men who had come into his domain to take a wife but chose to stay gave him a loyalty unmatched elsewhere. They would not lead but nor would they ever want, even when old & toothless. Several of Zahir's elder daughters were widows. had always been so to the husbands of their younger sisters. http://circus.waddayano.org/blog/2008/11/another_night_1.php http://circus.waddayano.org/blog/2008/11/another_night_1.php Sat, 01 Nov 2008 18:03:20 +1000 The Australian - Freedom of speech has become a critical issue TODAY’S World Press Freedom Day is about much more than journalists being able to do their jobs unimpeded. It is about the public’s right to know the truth about how the governments they elect and the services they pay for, such as police and hospitals, operate. This year, the day comes at the end of an appalling week for press freedom. On Wednesday, armed police from the Major Fraud Squad raided the Perth office of The Sunday Times newspaper. They spent four hours trying to prise out the source of a story that had embarrassed the Government of Alan Carpenter, a former journalist. The story was in the public interest, relating to a request by Treasurer Eric Ripper for $16 million to pay for advertising for the Government’s re-election campaign. It was the second time in a month that police, whose stretched resources would be better employed fighting crime, had entered the Sunday Times offices to uncover the sources of political stories. Speaking on behalf of the media coalition, Australia’s Right to Know, News Limited chairman and chief executive John Hartigan said: “This is a disturbing reminder that governments in Australia will resort to legal muscle to redress political embarrassment. Do we now live in a country where whistleblowers and journalists can expect to be hunted down and charged if they reveal government information that is a matter of legitimate public interest? The answer, regrettably, appears to be yes.” The armed raid, reminiscent of those in countries such as Malaysia, erodes Australia’s credibility in speaking out against the intimidation again meted out to the media this week in Fiji. The Fijian Government, known for its brutality, corruption and totalitarian rule, arrested Evan Hannah, managing director of The Fiji Times on Thursday night, forcibly removing him from his home, pending deportation. The arrest came two months after another Australian, Russell Hunter, publisher of the rival Fiji Sun, was arrested in a night-time raid on his home and deported. Amid such repression, it should be reassuring to know that federal Labor, in the run-up to the November election, promised a mature and open approach to freedom of information. A Rudd government, the ALP’s policy document said, would “drive cultural change across the bureaucracy to promote a pro-disclosure attitude”. Information would be withheld only “where this is in the public interest”. The Australian community would be able to “properly access information in the possession of the commonwealth Government.” These fine commitments have already melted into hollow rhetoric with the federal Government using FOI laws to block the release of advice about the wage-push inflationary effects of its industrial relations changes. In response to an FOI request from the ABC, the bulk of the 38 pages produced this week were censored. A Treasury official’s lily-livered excuse was that full disclosure would “be contrary to public interest as they are internal documents containing information which could raise unnecessary debate on matters considered by cabinet”. This ridiculous mindset, reflective of Orwell’s Big Brother, deems economic debate “unnecessary” and against the public interest. In reality, Treasury concerns about Labor’s abolition of the Howard government’s IR reforms have been known for months. In August, Treasury secretary Ken Henry underlined the importance of flexible labour markets for sustaining full employment. Months after the triumphant abolition of Work Choices, full disclosure of the relevant Treasury advice would have been no more than mildly embarrassing for the Rudd Government. But a cynic might suggest it feared the advice could come back to haunt it in the event of an inflationary wages breakout. The public interest, however, demands openness rather than a cover-up and Mr Rudd’s silence on the subject yesterday was deafening. This penchant for secrecy pervades both sides of politics and much of the legal system, to the detriment of public life. This newspaper, for instance, spent much of the last parliament battling former treasurer Peter Costello’s blocking the release of data about bracket creep and the use of the First Home Buyers Scheme. The Australian lost the case in the High Court. In a report released at last night’s Australian Press Freedom Media Dinner in Sydney, the Media Entertainment & Arts Alliance noted numerous perturbing instances of censorship. These included the sentencing of former public servant, Allan Kessing, to a nine-month suspended jail term after he was found guilty of leaking a report on serious gaps in airport security to The Australian. The issue was vital to the public interest. In the US, freedom of speech is fundamental to national culture and guaranteed under the First Amendment. Australia’s establishment, in contrast, is increasingly embracing the censorious, “less is more” mentality of the taciturn British civil service. At every turn, civil libertarians battle to keep the public in the dark about lawyers’ clients facing charges. States such as Queensland keep pertinent school performance data under wraps, while Tasmania refuses to release details of secret proposals for taxpayers to subsidise pipelines to service the controversial Gunns pulp mill. Secrecy, control and spin have rendered free speech fragile. This is bad for democracy and the issue deserves elevating to the centre of national debate. http://circus.waddayano.org/blog/2008/10/the_australian_freedom_of.php http://circus.waddayano.org/blog/2008/10/the_australian_freedom_of.php Wed, 29 Oct 2008 19:15:15 +1000 Evan Whitton October 13, 2008 http://www.justinian.com.au/1229-article The Witchfinder-General We need a third verdict for people like Allan Kessing: guilty, but who cares … http://circus.waddayano.org/blog/2008/10/justin_an_evan.php http://circus.waddayano.org/blog/2008/10/justin_an_evan.php Wed, 29 Oct 2008 19:09:00 +1000 Let Customs whistleblower walk away a free man 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. John Bell, Lyneham ]]> http://circus.waddayano.org/blog/2008/10/walk_away_a_free_man.php http://circus.waddayano.org/blog/2008/10/walk_away_a_free_man.php Wed, 29 Oct 2008 19:05:35 +1000 ou d'Allan Kessing, fonctionnaire des douanes, au sujet des failles de la sécurité dans les aéroports - ont été contraints à la démission ou traînés devant les tribunaux. La haute fonction publique australienne, censée donner au gouvernement des avis « francs et courageux », a compris qu'il était dangereux d'exprimer des opinions que les politiques ne souhaitaient pas entendre et s'est donc auto-censurée. Selon l'organisation Reporters sans frontières, l'Australie se classait au 12e rang mondial pour ce qui est de la liberté de la presse en 2002, mais était dégringolée au 50e rang l'année suivante, passant derrière l'Albanie et le Ghana (4). Si l'on ajoute à cela le traitement indigne infligé aux demandeurs d'asile, systématiquement placés en détention - enfants compris - ou exilés sur l'île lointaine de Nauru, et le refus obstiné de Howard de demander pardon aux Aborigènes au nom de la nation pour les torts immenses qu'ils avaient subis, (refus qui avait fait échouer le grand projet de réconciliation des années 1991 à 2000), ainsi que le suivisme éhonté du gouvernement à l'égard de l'administration Bush aux États-Unis, on comprendra que les Australiens aient fini par s'apercevoir que les pratiques de l'exécutif donnaient de leur pays une image internationale de plus en plus négative. Même si ces questions ne les affectaient guère dans leur vie quotidienne, ils ne pouvaient rester éternellement indifférents à cette dégradation, qui fit dire à Paul Keating que, sous le régime de Howard, l'Australie avait « perdu sa boussole morale » (5). ]]> http://circus.waddayano.org/blog/2008/10/politique.php http://circus.waddayano.org/blog/2008/10/politique.php Wed, 29 Oct 2008 18:59:09 +1000 The AUSTRALIAN Chris Merritt | September 10, 2008 WHEN Allan Kessing endorsed the latest plan to protect public service whistleblowers, he was almost uninterested. Even if the federal Government gives immediate legislative form to the scheme that was unveiled yesterday, it will be too late to save this former Customs officer. Whistleblower Allan Kessing at his Blue Mountains home west of Sydney. Picture: Amos Aikman Kessing has already felt the full force of what the government of Australia can do to public servants who reveal ineptitude and maladministration. He has been investigated repeatedly by the Australian Federal Police, dragged into court and left with a criminal record and crippling legal bills, all for alerting the community to lax airport security. And his ordeal continues. Kessing is still clocking up legal bills in an attempt to overturn his conviction for leaking documents to this newspaper in 2005. At last count, he was expecting the appeal to cost $40,000 to $50,000. And he is still carrying a debt of $12,500 from his trial, despite a public appeal among journalists that helped defray $40,000 in legal costs. "Basically, my entire super is gone," Kessing says. A new law from a new Government may protect others but it will do nothing for Kessing, who is bitter about how he has been treated. "I have been made a scapegoat by a praetorian guard that was more interested in protecting the rat king than the citizenry," hesays. In Kessing's view, the "praetorian guard" is the Australian Federal Police. "As we saw in the (Mohamed) Haneef thing, it's a purely political body and it has been used in the most outrageous political manner," he says. To many, Kessing's bitterness is understandable. Even if he did what he is alleged to have done - which he denies - some would say he deserves a commendation, not a criminal record. When the documents at the heart of the affair remained inside the Customs bureaucracy, nothing was done to address lax security. Once they were published in The Australian, the former government spent $200 million trying to fix the problem. It also unleashed the AFP on Kessing. The affair was one of the factors that persuaded Labor to include whistleblower protection in its policy for the last year's federal election. That policy was explicit: "Where a person has exhausted all legitimate mechanisms and avenues of complaint, and still finds that through the force of extreme circumstances they are obliged to disclose information to third parties such as journalists, protection by a court may still be provided dependent upon the circumstances." The impact of this policy extends beyond the public service. If public servants are protected from criminal charges when they provide material to the media, journalists would also benefit. They would be far less likely to be roped into court cases and asked to reveal their sources in the public service. Media lawyers say the indirect effect of a new whistleblower law could be to do more to keep journalists out of court than the previous government's shield law for journalists, which is widely seen as ineffective. But the question of whether Labor's promised law will in fact protect public disclosures to the media will depend on how Labor fills in the gaps in its policy. And there are plenty of those. Does the policy's use of the word legitimate, for example, open the way for public servants to go to the media in certain circumstances before exhausting all internal appeal mechanisms? What are the limits on the type of concerns that whistleblowers will be permitted to raise with the media? And what happens to those whistleblowers who go to the media with concerns that they cannot prove or that later are found to be factually incorrect? The plan unveiled yesterday by Special Minister of State John Faulkner seeks to answer those questions. It has been drawn up by a team of academics led by A.J. Brown of Griffith University and is part of a three-year project backed by the Australian Research Council. It is contained in a report called Whistleblowing in the Australian Public Sector and it is already clear it will influence the type of legislation that is eventually introduced by Faulkner. A more important influence will be Labor's Mark Dreyfus QC, who is running a separate inquiry into whistleblower laws for the legal and constitutional affairs committee of the House of Representatives. The Dreyfus committee has been asked to prepare a preferred model whistleblower law. But Dreyfus is also aware of what Brown has been doing. The Brown report has been unveiled midway through that committee's public hearings, a fact Dreyfus described as "very, very convenient". What Brown has proposed is a three-stage system aimed at giving government agencies a strong incentive to address internal complaints about misconduct. If the scheme is implemented, agencies that ignore complaints by public servants about misconduct risk intervention by a powerful outside agency. That agency, which might be the Commonwealth Ombudsman, would be vested with extra powers and would need to be notified of all internal public interest disclosures by public servants. It would have the power to manage how an agency investigated each disclosure and could even take over the investigation. And if complaints remained unaddressed, public servants who took their concerns to the media would be protected from legal liability. But the scheme would not cover every complaint, only those that raised allegations of wrongdoing that were against the public interest. The sort of wrongdoing that could safely be disclosed to the media includes crime, corruption, abuse of power, breach of trust, conflict of interest, official misconduct, negligence, incompetence, financial waste and anything that poses a risk to public health, safety or the environment. In at least one area, Brown's proposal is even more protective of public servants than Labor's pre-election policy. Brown is not persuaded there is a need to ensure disclosures to the media are substantially true before they would gain the benefit of his scheme. Labor's policy required whistleblowers to first go through internal channels. It then would protect public servants whose accusations were eventually vindicated. Brown agrees whistleblowers should first try to have their concerns dealt with in-house. But he believes the second leg of Labor's test, which requires the disclosures to be true, is too restrictive. "Proving that an allegation of wrongdoing was 'substantially true' may also be a difficult challenge, particularly if the whistleblower has to satisfy a court or tribunal of this matter when seeking compensation or resisting criminal prosecution or civil action," the report says. Instead, the report proposes that whistleblowers should be protected if their disclosures are true or if they held an honest and reasonable belief that their disclosures revealed wrongdoing. Even before the Brown report was made public, some senior public servants had been worried about the prospect of a law that would protect whistleblowers who went to the media. The Attorney-General's Department and the Australian Commission on Law Enforcement Integrity even told the Dreyfus committee they preferred a system in which public servants would not be protected if they went to the media. On the other side of the debate, media lawyers and the journalists union are pushing for Faulkner to adhere to Labor's pre-election promise and - in some areas - to go evenfurther. Media, Entertainment and Arts Alliance federal secretary Christopher Warren says Brown's proposals appear to be a step forward. "This is the first time there has actually been any recognition that whistleblowers have any rights," Warren says. But he says there will be risks involved in requiring public servants to exhaust internal complaint-handling mechanisms before contacting the media. "Most people who contact the media have already made a judgment that there is no point going internally," Warren says. "Most whistleblowers who come to the media would have preferred to have their concerns dealt with internally." Faulkner, while launching the Brown report yesterday, skated over the issue of whether Labor intended to protect disclosures to themedia. "A particularly contentious issue is whether disclosures should continue to be protected public interest disclosures if they are made to third parties, including the media, and in what circumstances (if any) disclosures should be justified, protected and permitted," Faulkner says. "These are difficult, complex and challenging issues." Brown, however, is not so reticent. He says his scheme has been designed to ensure that government agencies are encouraged to deal internally with complaints about misconduct. The incentive to drive that outcome is legal protection for public disclosures to the media, Brown says. In practice, the proposed system would mean that the Commonwealth Crimes Act would continue to criminalise disclosures to the media that fall outside the definition of public interest disclosures. But the Crimes Act prohibition would not apply to public interest disclosures to the media. "A lot of government agencies, even at a commonwealth level, should already have systems in place for looking after their whistleblowers, and they don't," Brown says. "So the question is, what are the big drivers that will help make sure that happens? It's the risk of the public whistleblowing that helps create the driver for making organisations do it properly. You have to have that public whistleblowing recognised in order to have internal whistleblowing dealt with more constructively. At the moment, an organisation can sit back and say: 'We are going to sweep this under the carpet."' Brown believes public service managers are aware that complaints about misconduct can not be made public by public servants unless they are prepared to risk being prosecuted. Media lawyer Peter Bartlett told the Dreyfus committee of another reason there should be no requirement to exhaust internal complaint-handling systems before going to the media. He pointed out that several deaths and problems with medical procedures at Bundaberg Hospital had been the subject of internal complaint-handling for two years before they became public. "If they had been made public earlier, then things could have been a lot different for a lot of people," Bartlett says. All this is much too late for Kessing. But if Labor adopts the broad structure of the Brown report, Kessing may well be the lastpublic servant to be punished, rather thanlionised, for revealing serious flaws in public administration. Chris Merritt is The Australian's legal affairs editor. http://www.theaustralian.news.com.au/story/0,,24316296-2702,00.html The AUSTRALIAN Chris Merritt, Legal affairs editor | September 09, 2008 THE Rudd Government will today unveil a plan for a national overhaul of whistleblower laws, which would abolish criminal penalties for public servants who reveal crime and misconduct to the media. Instead of penalising whistleblowers for unauthorised disclosures, the scheme would protect them from liability and give them the right to legal redress and financial compensation if they suffer reprisals. By protecting whistleblowers from criminal sanctions, the scheme would reduce the risk of journalists being threatened with prison for refusing to identify their bureaucratic sources. The plan is outlined in a report to be launched this morning by Special Minister of State John Faulkner, who is overseeing the Government's promised introduction of whistleblower laws. The plan was welcomed yesterday by former Customs officer Allan Kessing who was convicted last year of revealing to The Australian airport security flaws - a charge he denies. "I fully endorse it. It is less about protecting the individual and more about protecting the public interest," Mr Kessing said. The report, by a team of academics led by AJBrown of Griffith University, calls for an extensive overhaul of public service management systems aimed at forcing the bureaucracy to be more responsive to internal complaints about maladministration. Dr Brown said that if the scheme had been in force last year it would have given Mr Kessing a powerful defence. "If Kessing did what he is alleged to have done, this scheme would have given him a fair day in court to argue that what happened was a public interest disclosure," he said. The scheme drawn up by Dr Brown's team is intended to provide the framework for a network of laws throughout the nation that would recognise the legitimacy of public interest disclosures. It would protect public servants who tell the media about a broad range of misconduct including crime, corruption, abuse of power, breach of trust, conflict of interest, negligence, incompetence, financial waste and anything that endangers public health, safety or the environment. Even if their disclosures turned out to be wrong, whistleblowers would still be protected from liability so long as they had acted in the honest and reasonable belief that they were revealing wrongdoing. The scheme aims to encourage government agencies to deal with maladministration internally by holding out the threat of public disclosure in the media if they fail to act. Agencies that fail to address internal complaints about maladministration would risk intervention by a powerful agency that would be responsible for administering the scheme. This oversight role could be vested in an existing organisation rather than a new institution, Dr Brown said. The report, Whistleblowing in the Australian Public Sector, is expected to influence the outcome of a separate inquiry into whistleblower laws by the House of Representatives committee on legal and constitutional affairs. Labor's Mark Dreyfus QC, who chairs that committee, said last month that the Brown report was "very, very convenient". "They have conducted a whole range of research that we will be able to make use of," Mr Dreyfus said. Dr Brown, who has led a three-year research project on reforming whistleblower laws, is the son of the late Wallace Brown, who worked in the Canberra press gallery from 1961 to1995. http://www.theaustralian.news.com.au/story/0,,23594070-30541,00.html The AUSTRALIAN Chris Merritt | April 25, 2008 http://www.theaustralian.news.com.au/story/0,,24139086-17044,00.html The AUSTRALIAN Chris Merritt, Legal affairs editor | August 07, 2008 MOVES to make governments more open and accountable gathered momentum this week when Attorney-General Robert McClelland called a third inquiry into government secrecy and the protection of public sector whistleblowers. "We are committed to open and accountable government and want to ensure that Commonwealth information is only protected where there is a legitimate reason for doing so," Mr McClelland said this week. The latest inquiry, to be run by the Australian Law Reform Commission (ALRC), has been convened just ahead of this month's launch of public hearings on whistleblower protection. Those hearings are being run by the House of Representatives committee on legal and constitutional affairs which is chaired by Labor's Mark Dreyfus QC. The committee's report is expected to outline the framework for the Government's promised new law protecting whistleblowers in the federal public service. The states are also about to come under pressure to improve their treatment of public servants who make unauthorised disclosures in the public interest. A team led by A.J.Brown of Griffith University will next month release a report on how to reform the nation's inconsistent network of whistleblower laws. This exercise, known as the Whistling While they Work project, is backed by the Australian Research Council, several government ombudsmen and five universities. It will be launched by special minister of state John Faulkner, who with Mr McClelland has responsibility for the Government's whistleblower project. The ALRC inquiry, which is intended to complement the work of the Dreyfus committee, is aimed at ensuring a consistent approach to government secrecy across all federal agencies. Mr McClelland has asked the ALRC to ensure that whatever options it develops are "balanced against the need to maintain an open and accountable government through providing appropriate access to information". The ALRC has specifically been asked to examine how the secrecy provisions of the Commonwealth Crimes Act -- the law that was used last year against airport security whistleblower Allan Kessing -- interact with other laws and practices "including those relating to secrecy, privacy, freedom of information, archiving, whistle-blowing, and data-matching". Mr Dreyfus said he was looking forward to the final report of the Whistling While They Work project. "It is very, very convenient," he said. "They have conducted a whole range of research that we will be able to make use of." Mr Dreyfus was also attracted to the idea of a consistent approach by all governments. "It is desirable to have a fairly consistent regime for all people in the public sector so the standards -- and I hope they would be high standards -- would apply in all jurisdictions," he said. The committee's terms of reference state that the type of disclosures that could be protected include allegations of illegal activity, corruption, official misconduct, breach of public trust, scientific misconduct, wastage of public funds, dangers to public health and safety and dangers to the environment. Mr Dreyfus said his inquiry would be a "short, sharp exercise". "We have the advantage that there is whistleblower protection legislation in many countries as well as in some states, so we are not needing to invent this from scratch," he said. "There is currently only very piecemeal protection in the Australian government sector." Mr Dreyfus said he hoped the report would lead to legislation next year, perhaps called the Whistleblower Protection Act or the Public Interest Disclosure Act. The committee will hold public hearings between August 21 and September 25. Submissions close tomorrow. Canerra Times PREJUDICE: AFTER being trounced in court by a mere journalist, it is completely understandable that the Commonwealth Director of Public Prosecutions has gone to ground. Nobody from that office is prepared to talk about how the DPP copped such a hiding in its prosecution of Elisabeth Sexton and Fairfax Media, publisher of The Sydney Morning Herald. All that the DPP was offering yesterday was a written statement pointing out that there had been no suggestion that the prosecution did not have a proper basis; they were considering whether to appeal; and Sexton was still criticised, despite being exonerated. It is to be hoped that somebody in government is able to extract a few more answers from the DPP, because, on the face of things, this case is screaming out for a little law reform. The public can only speculate about why the DPP came a cropper. But it looks like the loss might have been due to a mixture of bad law and bad litigation. On the law, the DPP appears to have fallen victim to the inconsistency and lack of rigour that are hallmarks of the law of contempt. These problems have long infuriated the media. But taxpayers now have a quarter of a million reasons for lining up with the media and calling for a little more certainty about this body of law. After losing the Sexton case, the DPP was lumbered with legal costs that are likely to be about $250,000. Even if the loss is attributable to the confusing state of the law, rather than any failing by the DPP, the prosecutor should have been a shoo-in on legal costs. The case was before NSW Supreme Court judge Roderick Howie, a man with firm views about the media. Although he found Sexton and Fairfax not guilty of contempt, Howie is on record as longing for a change in the law to make the media pay for retrials triggered by negligent reporting. Even though he found the article at the heart of the case was not a criminal contempt of court, he didn't like it. It was "gratuitous and unfair". In an unauthorised early draft of his judgment, he had even referred to Sexton as being either arrogant or incompetent. He later expressed regret, but never apologised. So how could the DPP lose on costs? The simple answer is that they had a great opportunity to stick Fairfax with the legal bill - and they botched it. When the DPP applied for costs in its favour, it relied on the wrong law. They then left Howie nowhere to go because they neglected to include the standard fall-back argument inviting the judge to exercise his discretion when awarding costs. The Sexton prosecution has been ludicrous from the beginning. It started when Bob Sorby, a judge of the NSW District Court, objected to one word - literally - in an unremarkable article of Sexton's about a criminal trial before Sorby. Sorby aborted the trial and the DPP, which had been running the prosecution, took criminal contempt action against Sexton and Fairfax Media. Unfortunately, it looks like the DPP might have believed that once a judge had aborted a trial, it was almost certain that the author and publisher of the article in question would be easy meat. After all, the cost of aborting any trial runs into thousands of dollars and adds to delays in the criminal justice system. It is only logical to assume that the judge would not have made his order lightly. But here's where the inconsistency comes in. Sorby's reasons for the decision to abort the original trial relied on nothing more than his discretion. But a criminal conviction for contempt must be proved beyond reasonable doubt - a much more rigorous test. If the law had required Sorby's original decision to abort the trial to be based on the same test - or was at least made subject to appeal - much of the waste associated with this case could have been avoided. Sorby, according to Howie, was not wrong. It's just that his decision relied on a different test. Allowing judges to abort trials based on nothing more than their discretion is an indulgence that taxpayers can ill-afford. In the Sexton case, the exoneration of the man who was standing trial before Sorby was delayed; the Sexton prosecution will cost taxpayers $250,000; and even though Fairfax won, Supreme Court rules mean it will never be able to recover all of its costs. Help whistleblowers THERE is a precedent for pardoning convicted whistleblower Allan Kessing. On December 6, 1972, Gough Whitlam and Lance Barnard set free seven draft resisters who had refused to allow themselves to be conscripted into the army for service in Vietnam. Under the government of Billy McMahon, those draft resisters had broken the law. Whitlam had been elected to office four days earlier on a policy of ending conscription. He implemented that promise at the earliest possible time. Kevin Rudd was elected to office last year promising to protect whistleblowers in the federal public service. It's time to use that mandate. http://www.news.com.au/adelaidenow/story/0,,23640505-5006336,00.html WHEN 16 police officers raid a city building you might expect a dastardly criminal is inside – perhaps one of Australia's most wanted or even an al-Qaida suspect. At the very least you would expect they are looking for a villain who is a clear and present threat to public safety. Not in Perth. There, such a major raid is deemed appropriate to hunt down people who embarrass the State Government. In a disgraceful affront to Australia's right to know, the raid was not on a criminal headquarters but on a newspaper office. Sixteen police officers raided the offices of The Sunday Times on Wednesday, questioning journalists, commandeering paperwork and noting who left the building during the raid. The crime? The Sunday Times (a News Ltd publication and a sister newspaper of the Sunday Mail) reported on a State Government decision to spend $16 million on advertising, allegedly to support its re-election campaign. The four-hour raid, the second on the The Sunday Times in a month, aimed to find the source of the story. This outrageous intimidation is symptomatic of governments across Australia being paranoid about negative publicity and their obsession to control reports about themselves. Many times, they don't want you to know the truth – they want you to know their version of the truth. Which is why they hire ever-increasing armies of spin doctors to bury government negatives, amplify positives, control the flow of information and muscle any journalist who has the temerity to question the official line. While the public may have little sympathy for journalists, they should worry about politicians who are prepared to countenance police rifling through journalists' notebooks and desks. Such tactics were common to dictatorships but were anathema to Australia – until recently. Australian governments are feeling increasingly emboldened to intimidate those who would like to shine a light on government waste, stupidity and excess. It's not going to work. Last year, former Customs officer Allan Kessing was convicted of leaking long-ignored reports on lax security at Australian airports. He denies leaking the reports but their publication in The Australian in 2005 severely embarrassed the previous federal government and forced it to spend $200 million on improving airport security. In 2007, two Herald Sun journalists, Michael Harvey and Gerard McManus, were convicted of contempt of court for refusing to disclose the source of a story that the federal government planned to withhold $500 million of benefits to war widows and veterans. Two powerful stories in the public interest; three men with criminal convictions – is this right? Politicians must not trash Australia's proud tradition of free speech and a free press just because they do not like a headline. Australians will not tolerate this. ]]> http://circus.waddayano.org/blog/2008/10/ozs_merritt_on_kessing_et_al.php http://circus.waddayano.org/blog/2008/10/ozs_merritt_on_kessing_et_al.php Sun, 26 Oct 2008 10:49:47 +1000 REED Democracy Disconnect Democracy in Disconnect: Joining the Dots. If we are to protect the freedoms we have in Australia it is essential that we learn from our mistakes. But to do so, we need first to acknowledge that they’ve been made, then take responsibility for what went wrong. Regardless of who holds the Treasury benches in Canberra, the art of avoiding cleaning up the mess has become dangerously refined. The media, to its credit, often draws relevant incidents to the public’s attention, though we let each one pass as if it’s isolated and not part of a worrying pattern. An example came in The Australian on April 25 – normally a day for reflection – in an article, “Pardon this whistleblower, say the law’s big names”. Chris Merritt, the newspaper’s legal affairs writer, was looking at how some of the nation’s most influential lawyers were calling for retrospective legislation to be used to clear the name of convicted whistleblower, Allan Kessing. Kessing, a former member of the Customs Air Border Security Unit based at Sydney Airport, 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 such 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 of which then Prime Minister John Howard urgently hired British international aviation expert, Sir John Wheeler, to look into the claims. Wheeler confirmed the threats and vulnerabilities outlined in the reports and the Federal Government allocated over $200 million to rectify the problem. But as usual, a lethargic Canberra mugged by reality demanded a victim on whom to take out its scorn. Despite its own rhetoric and duty, the Government and the bureaucracy had been neither alert nor alarmed. Kessing was targeted, charged and duly convicted last year. He was given a nine-month suspended sentence and put on a good behaviour bond for two years. He has consistently denied leaking the reports and is currently in the process of lodging an appeal, following a drawn-out legal process that beggars belief. In the run-up to last year’s federal election, the Labor Party highlighted Kessing’s case when it committed itself to bringing in legal protection for public servants who made unauthorised disclosures in the public interest. What was leaked on airport security, and confirmed by Wheeler, has made all Australians inordinately safer, yet Kessing’s life is being systematically trashed. There’s no other way of putting it. The new Government has been in office for nearly six months and we still haven’t seen the whistleblower legislation, or any inclination on the part of Canberra to help Kessing. In a democracy, especially one in which there are increasing calls for a bill of rights, this is appalling. Equally as shocking is the lack of interest on the part of parliament and the community as a whole. Likewise, no one’s demanding to know why the two Customs reports were not acted upon by senior bureaucrats and their relevant ministers. Why were they buried? Who shirked responsibility? A second red light flashed on April 28 this year when the NSW Director of Public Prosecutions ordered police to drop charges against the ABC’s eleven-man Chaser team for breaching security in Sydney during last September’s APEC conference. You might recall that 21 world leaders were due in town for that talkfest, with the Canadian Prime Minister and President George Bush already here. At the time, the image of Chas Licciardello stepping out of a black car dressed as Osama bin Laden, only metres from the US President’s hotel, flashed around the world. While it is understandable that the police, who were left looking inept after that stunt, would want to pursue charges against the team, we still haven’t been told whether it was really their fault. We need to know about that, just as they deserve to have their name cleared. After all, the Howard Government made much of APEC security, which cost well over $100 million. You’d expect the Rudd Government to be interested in the nation’s wellbeing. Moreover, the Seven Network, The Daily Telegraph website and The Sydney Morning Herald all told us on September 13 last year that the Chaser team was able to reach the ‘red zone’ because security had been relaxed. This occurred, it was said, after the Prime Minister had a problem the day before with a locked gate. He had to wait for a duplicate key to be found. Later, the head of the APEC task force was stopped and searched when his accreditation was queried. Alan Henderson, the bureaucrat involved, had been appointed to the job from inside the Department of Prime Minister and Cabinet. A furious Henderson was reported to have lodged a complaint and demanded that the police ease off ministerial cars. To make matters worse, The Daily Telegraph followed up with a report that: “Officers were then ordered not to stop motorcades while they were in motion, which allowed the Chaser crew – complete with an Osama bin Laden lookalike – to pass unchecked, police sources confirmed last night. This was despite the fact that no official motorcades were scheduled to pass through the checkpoint that day.” The rest is history, and yet the Australian public has been given no explanation of the causes of a breakdown in the system that attracted worldwide media coverage. It’s easier, apparently, to let the police take the rap, even though public respect for them is vital – and for the police as much as for us. Nothing has been heard from the Rudd Government on this count. Add to this systemic complacency the brazen refusal of the last government to grant the Cole Royal Commission into the Iraqi food-for-oil scandal the power and obligation to look into not only the AWB’s culpability but also the role of the Federal Government. It was Canberra that had made a commitment to the United Nations to monitor and take responsibility for the AWB’s actions, but failed to do so, thereby tarnishing Australia’s international trading reputation. We were all demeaned in the process. Commissioner Terence Cole never asked for expanded powers. Likewise, John Clarke QC, the retired NSW Supreme Court judge who is leading the inquiry into the case of Dr. Mohamed Haneef, has no powers to require people to give evidence. That means he’ll be unable to protect those people who venture forth from the engine-rooms of the agencies involved to reveal the truth. Understandably, some might fear appearing because of the impact on their careers, if not because they’re afraid of Canberra’s renowned blowtorchings that shut decent people up. Clarke has been left by the Government to ask for extra powers if he needs them. Why not grant them to start with? In the minds of thinking Australians, all this begs the question, who’s got what on whom in the national capital? Who’s really calling the shots? Whatever the answers might be our democracy is diminished by constantly overlooking the failure to act openly and accountably. A Monash University scholar, Dr. Hugh Emy, hit the nail on the head when he wrote in 1972 about a major difference between Australians and the British. The latter, he said, had learnt over long, hard centuries to keep a sharp eye out for any abuse of state power, whereas Australians – despite their so-called healthy disrespect for authority – were largely indifferent to government as long as it provided most of what they wanted. Very little ever stirred them. Emy, who died young, would be aghast if he came back today. He wouldn’t fail to join the dots and warn of the pattern they described. Warren Reed is a former intelligence officer and commentator on security matters. Like Lemmings Over a Rhetorical Cliff. Australia stands a fair chance of losing itself down a chasm between rhetoric and action. We’re all responsible for this – not just politicians. We need to get serious fast about recognising the condition and then working out what to do about it. It might point to a flaw in our make-up that has implications for our democracy. Why? Because the widening gap causes anguish for too many of our fellow citizens and it’s about time we bothered to notice. Take for example the outpouring of sympathy over the fate of the 645 men on the HMAS Sydney that followed the recent discovery of the vessel on the seabed off the West Australian coast. Later, dignitaries, relatives and senior naval officers dropped wreaths over the site and just before Anzac Day a memorial service was held in the Anglican Cathedral in the fighting ship’s namesake city. Who wouldn’t be moved? But think for a moment how those 645 men would be turning in their graves if they knew how the Navy and the Commonwealth Government – in our name – has treated survivors of the 1964 Voyager disaster. For those who don’t remember, the Voyager was a destroyer captained by a man well known for being fond of brandy, even on the bridge. During a night exercise off the NSW coast he took the wrong turn and cut across the bows of the aircraft carrier, HMAS Melbourne. The Voyager was cut in two and 82 men lost their lives. The Navy shirked all responsibility, blamed the Melbourne’s captain and two successive royal commissions were required to establish anywhere near the facts and to clear his name. All these years later, 34 damages claims by Melbourne crew are still before the courts and there are seven outstanding appeals. Two claims by descendants of Voyager crew who died remain unresolved. Thankfully, through mediation and negotiation, 50 cases were resolved just last year. Can you believe it? We should all feel ashamed, especially those comfortable denizens of Canberra responsible for the long-running saga. They act in our name. You can be sure their lifestyle and superannuation is guaranteed, though not the sanity of the men involved and their families. Imagine those 645 men from the Sydney coming back for a day. After a brief reunion with their loved ones, you can see them heading for the capital and tearing strips off those responsible. Their catchcry might be, “For God’s sake, do your duty. Do it like we did, and like our colleagues on the Voyager and the Melbourne.” That might be enough fury for a day. That is, unless you told them about the crew of the HMAS Murchison patrolling the seas around the Monte Bello Islands off the West Australian coast on October 3, 1952. They were ordered on deck, wearing standard Navy uniform – shorts, thongs and no shirt – to witness Britain’s first detonation of an atomic bomb nearby (See Jonathon Dart, “British nuclear test photos challenge official findings”, The Sydney Morning Herald, April 21, 2008). In 2006, when health care assistance was finally granted to all participants in those bomb tests, two of the Murchison’s crew, Ken Palmer and Michael Rowe, applied. They were promptly told that they did not qualify because they had not been on the vessel and anyway, it was too far away from the blast to be affected. To be classified as a “participant”, the Department of Veterans’ Affairs (DVA) required applicants to prove that their vessel had been within ten kilometres of the site. Oddly, a royal commission into British atomic tests in Australia, held in 1984-85, claimed that the Murchison was 112 kilometres away from the blast. Now Palmer and Rowe have produced photos they took on board their vessel with a Box Brownie, which show not only the nearby mushroom cloud but also them and the crew scrubbing down the ship after the explosion – again, in shorts. Bear in mind that airborne radiation from the blasts was detected as far away as Townsville and Rockhampton. Now a class action against the Federal Government is being prepared, which could attract up to 500 people. Ken Palmer told The Sydney Morning Herald that, “It would be nice to think the Government would finally come out on our side for once.” You also wouldn’t want to mention to the men from the Sydney the story of Scott Nichols, the former Australian Air Force corporal who was one of only two survivors of the 2005 Navy Sea King crash on the Indonesian island of Nias. Nine Australians were killed in the crash, while on a humanitarian mission after the tsunami, because their aircraft had not been properly maintained. No one, by the way, has taken responsibility for that. Nichols revealed to the Sydney Sun-Herald in March 2008 (See Frank Walker, “Survivor fully compensated”, Sun-Herald, April 13) that his life had been turned into hell by DVA pen pushers making him “jump through hoops”. Bureaucrats had held up final payment of his $300,000 compensation, telling him to fill in papers proving he was in the helicopter when it crashed. He has already had to leave the Air Force because of his injuries and has lost his profession. Nichols only received his money because of publicity and because the Veterans’ Affairs Minister, Alan Griffin, who met with him, stepped in and expedited matters. A grateful Nichols said, “I told him that the DVA need to realise that they are dealing with real people who are hurting and not just numbers and forms.” That says it all, and the problems aren’t just in the Navy. They’re right across our Defence system and into our intelligence agencies, with each callous incident affecting recruitment and public trust more than you’d care to think. So, as the genuine fervour that Anzac Day arouses in us quickly recedes for another year, it might pay to stop and think for a minute. Why? Simply this: lest we forget why it was that fellow Australians laid down their lives for us. Warren Reed is a former intelligence officer with the Australian Secret Intelligence Service (ASIS). http://circus.waddayano.org/blog/2008/10/another_view.php http://circus.waddayano.org/blog/2008/10/another_view.php Sun, 26 Oct 2008 10:17:48 +1000 FIRST LINE. In 2002 and 2003 an officer with the covert Air Border Security Unit of the Customs Department, wrote two reports identifying serious breaches of security at Sydney Airport. The report documented, among other things, the employment of baggage handlers with criminal records, theft of luggage, and drug trafficking. K found that roughly 30 percent of all personnel working behind the ‘sterile line’ (airside) had questionable backgrounds – aside from workers with criminal records, there were illegal immigrants, overstays, and, in eight cases, workers with no form of documentation at all. ‘It was out of control,In these eight cases we couldn’t find any record of these people even being in Australia. I checked immigration records, police records, electoral roles, vehicle registration records, nothing.’ K was horrified that these people were allowed to work in what was the most sensitive area of the airport security wise. In addition K found other major issues like black spots in the spread of surveillance cameras. Kessing was worried that the security weaknesses and criminal elements behind the sterile line could be exploited by terrorist groups. K says he did what he thought he was supposed to. He took the first report to his boss $#@! *&^%$#@! Customs Manager for Sydney Airport, in February 2003, and the second report, which was more detailed, in September 2003. Given his findings K thought these reports should be brought to the attention of higher ups in Canberra and to the Sydney Airports Corporation, the majority of which is owned by Macquarie Airports, and which was then headed by former John Howard chief of staff Max Moore-Wilton. ‘Under statutory law, the private company that owns Sydney Airport is obliged to uphold the highest security standards. Clearly, they were in breach of that obligation. It posed a serious threat to the public.’ K was flabbergasted by the reaction of his boss whom he had expected to take immediate action. He recalls that it was something like: ‘This is going to cost Macquarie millions and millions. I can’t present this to them.’ K says that his boss was so worried about possible financial and political fall out – especially given that the airport was managed by a mate of John Howard’s – that the boss would rather jeopardise security than fulfil his duty as a Customs official. And so, K says, his reports were buried - not handed to government and not presented to the owners of the airport. ‘A typical bureaucrat, ameretricious mediocrity, head down, shut up, don’t cause a fuss and further your career by not rocking the boat. He now has a plush job in Canberra.’ K says that he and his six colleagues in the Air Border Security Unit were stupefied. He says his direct supervisor $%#* &%@#$ was especially outraged. ‘$%#* was the one who had invited me into the unit, asked me to write the reports then asked what we could do.’ According to K, $%#* had previously been made aware of plans )(&^#^@! was harbouring to disband the Air Border Security Unit, hence the refusal to act on the reports hit $%#* extra hard. K says he and she discussed the possibility of leaking the reports to the media, discussing whether newspaper coverage would spur the government into action. ‘I told her that the simplest way was to put the reports in a brown paper bag and anonymously mail them to the newspapers.’ He says he took the matter no further but that his colleague remained seriously upset and outraged about the affair. By mid 2004 the Air Border Security Unit had been abolished. K went on LSL & extended leave, returning in Dec 2004 and later retired from Customs. In May and June 2005, several weeks afterwards, The Australian newspaper ran a series of stories allegedly based on the reports. Someone had apparently sent the reports to journalists Martin Chulov and Jonathan Porter, who were running the stories with big headlines. Kenneth Nygen summarized it as follows in a later editorial in The Age: “The front page of The Australian carried the sort of headline that governments hate but that citizens commonly appreciate: "Airport staff 'smuggling drugs' - Secret Customs report exposes criminal links". The story, by journalists Martin Chulov and Jonathan Porter, suggested a failure by the Government in its duty to protect the public, but in turn represented a success on the part of the Fourth Estate in its duty to inform the public.” The government tried to play down the gravity of the situation. Senator Chris Ellison appeared on television to say the reports were "no cause for public panic in relation to traveling. In fact, I'd say to the Australian public that they should not panic and that they can rest assured we have safe and secure skies." [CHECK ARCHIVE] Nevertheless the government took action on several fronts. On 7 June 2005 it announced a review of security at Australia’s airports and appointed a UK security expert named Sir John Wheeler to conduct the inquiry. Wheeler was a big gun – in the UK he had established the National Criminal Intelligence Service and he had headed a major review of security at UK airports including Heathrow. Wheeler’s appointment was announced at a joint media conference by the Deputy Prime Minister and Minister for Transport and Regional Services, the Attorney-General, and the Minister for Justice and Customs. [CHECK ARCHIVE] Publicly, the government said that there was no connection between the Australian’s revelations and the appointment of Wheeler but this was widely dismissed in the media. Indeed, Wheeler himself would later refer to the reports as a catalyst for his appointment: “The context for the review of security and policing at Australia’s airports was community concern about reported instances of criminality and security weaknesses at major airports such as Kingsford Smith in Sydney. The media had highlighted the possibility that weaknesses exploited by criminals could also be utilized by terrorists. […] stories based on a report by a staff member of the Australian Customs Service which was classified ‘Highly Protected’ and released without authorization and included details of security and criminality vulnerabilities at Sydney Airport involving baggage handlers and other staff such as security screeners.” [page 1. #3/4, Wheeler Report] At the joint press conference Deputy Prime Minister John Anderson stated that: “We’re conscious that the community now understandably wants the issue of criminality addressed because they think that’s where there’s a potential for terrorism ... they want any overlap addressed. ... I think it is right that governments respond to community concern. ...We want a quality overview. I think public confidence is obviously very important”. [CHECK ARCHIVES] K is highly skeptical of Anderson’s statement. “The government states it was responsive to ‘community concerns. [B]ear in mind that they arose from the reporting of a 30 month old assessment.” Wheeler took 3 months to finish the job. In September 2005 he presented his report which is publicly available. The conclusions were scathing, highlighting bureaucratic turf wars and calling the policing of Australian airports ‘often inadequate, dysfunctional and uncoordinated.’ With regards to the report’s findings he noted: “Intelligence material, particularly from Customs, confirmed significant threats and vulnerabilities at major airports that are consistent with the reporting by The Australian on 31 May and 1 June 2005 of the unauthorized release of a classified Customs staff-level assessment at Sydney Airport.” Wheelers’ numerous recommendations led the Howard government to commit to a massive overhaul of airport security measures throughout Australia – to the tune of anywhere between 200 and 300 million dollars. A recent story in the Australian (June 20) suggested that as much as $886 million has been spent since the Wheeler report on upgrading security. At the same time that Wheeler received his instructions the Australian Federal Police was instructed to track down the person who had leaked the Customs reports that had so embarrassed the government. The man ultimately fingered for the leak was K. If it was indeed K who leaked the reports he had chosen the wrong time to do it. According to several newspaper reports the AFP has spent 30,000 man hours hunting down leaks from the civil service and government in the last decade, targeting both whistleblowers and journalists. While the AFP went after the Customs' leaker, the DPP for instance was also prosecuting journalists Harvey and McManus of Melbourne’s Herald-Sun newspaper for not revealing the source of a story about veteran allowances. Both journalists escaped jail terms but were fined $7000 dollars. It was against this backdrop that on 6 September 2005 six AFP officers raided a shack, in K's absence on a bush shack in the Blue Mountains and a Customs' Internal Affairs allegedly found a copy of one of the reports, then went to the home of his recently deceased mother in Marickville and, the same IA officer allegedly found the other report. as well as a business card with Chulov’s name on it [AFP VIDEO of SEARCH AVAILABLE in BOTH CASES DO NOT SHOW the EUREKA MOMENTS]. The police would later, in court, also reveal that they pulled phone records from the local phone booth which showed that calls had been made to The Australian shortly before the publication of Chulov and Porter’s stories. K admits to having spoken to the reporters but says that they had contacted him after they had received the reports. ‘I have always been the ‘go to’ guy in Customs, and of course they called me since I was the author or the reports.’ K maintains though that he did not leak the reports to the Australian. He says that there are alternative ways in which he thinks the material could have been leaked to the Australian. 1) A colleague leaked the report. The Unit had often discussed leaking it after Custom’s refusal to act. A couple said they were were going to do it. All denied under oath that they were the source of the leak. 2) The Hon $%#@^*&% A()*&$@#@ MP or one of his staffers leaked the report. S/he was asked to raise questions about it in parliament. .......though was unresponsive and unwilling to ‘go there.’ but decided to leak the reports regardless. In court, the prosecution admitted that the case against Kessing was circumstantial but maintained that Kessing was the source of the leaks. He denied this. In addition Kessing’s barrister made the point that he could see nothing wrong with exposing our government agencies to criticism if the criticism was justified through maladministration and/or incompetence. Under oath Kessing’s former boss John Velastro testified that there was nothing of any value in the reports which was why he didn't act upon nor pass them on. This despite the fact that Wheeler in the meantime had come to quite a different conclusion. The problem for Kessing though was that notwithstanding the above the jury had been instructed by Judge James Bennett that there was no ‘public interest’ defense available to Kessing. He either didn’t do it or did do it – in the latter case the fact that he had brought to light a report that had been buried for 30 months and publication of which had led to a major overhaul of airport security was to be of no significance. ON 27 March 2007, after three days of deliberations, the jury found Kessing guilty of leaking a classified Customs report in breach of the Commonwealth Crimes Act. The Crown Prosecutor, Lincoln Crowley argued that "...a custodial sentence was necessary to deter other potential whistleblowers amongst the public service..". On 22 June 2007 Kessing was given a nine-month suspended jail sentence. Said Judge Bennett: "Whether or not it is appropriate to view the offender in the heroic light in which he has been bathed by some ... there is no justification for communicating the contents of the reports." Kessing can only shrug his shoulders: “It basically shows that anybody who knows of maladministration or corruption either in the private or the public sector, would be well advised to say nothing, do nothing, keep your head down and look after your career and your mortgage. It takes away the individual's responsibility and participation in what was once a constitutional democracy. We are being governed by fear at the moment. I would not have thought it would happen in a country like Australia.” Kessing says that the trial has taken a tremendous toll on him and his family. at least for the duration of the trial. He says the pressure was too much for them to handle. He says that they were particularly shattered when during trial they found out that the police had been tapping their personal phone conversations for six months. ‘My mother was dying during that time. Our calls were intensely personal, and the Australian Federal Police just sat in and listened to everything. What on earth were they hoping to get? I was retired. The reports had already been leaked.” As an example of the personal toll this was taking on the family, Kessing also mentions the AFP calling his brother's wife seeking a key to his mother's home so that they could search it. "We know that your mother-in-law has just died, we'll be discreet,” Kessing quotes the AFP as saying. “Otherwise we'll be there for a while waiting for a locksmith." When Kessing’s sister in law asked, "How did you know that," they wouldn't answer, says Kessing. “They just hung up.” Kessing has been heartened though by the support he got from sometimes unexpected corners. Journalists rallied to raise money to help cover his legal costs. Upon Kessing’s sentencing, former Australian Secret Intelligence Service officer Warren Reed told the press who’d gathered outside the court: "If anybody should have been in the dock today, or at least in the court, it should have been the Prime Minister and other ministers responsible for this area saying 'we're very sorry Mr Kessing', and 'we're sorry' to the court for wasting taxpayers' money in this way. They've insulted the integrity of a fine Australian public servant." [CHECK IF THERE IS VIDEO OF THIS] In October last year, then Opposition leader Kevin Rudd said Mr Kessing's conviction was one of the reasons a Labor government would introduce "best practice" laws to protect whistleblowers. "Access to government information and decision-making are keys to a healthy and vibrant democracy," Mr Rudd said. "It also means that members of the community can obtain reasonable access to government records and documents that affect their lives." Apparently not much has changed since Labor came to power. On May 12, 2008, New Matilda wrote: “In the run-up to last year's Federal election, the Labor Party highlighted Kessing's case when it committed itself to bringing in legal protection for public servants who make unauthorized disclosures in the public interest. What was leaked on airport security, and confirmed by Wheeler, has made all Australians inordinately safer, yet Kessing's life is being systematically trashed. There's no other way of putting it. The new Government has been in office for nearly six months and we still haven't seen the whistleblower legislation, or any inclination on the part of Canberra to help Kessing.” Kessing has appealed his conviction. The appeal will be heard on 2 October 2008. ]]> http://circus.waddayano.org/blog/2008/10/kafka_facts.php http://circus.waddayano.org/blog/2008/10/kafka_facts.php Sun, 26 Oct 2008 09:29:38 +1000 'Kessing evidence based on hearsay' Lex Hall | October 03, 2008 A CUSTOMS whistleblower who leaked information that prompted the biggest overhaul of airport security in Australia's history was convicted on the strength of hearsay evidence, his lawyer has told an appeals court. Allan Kessing was given a nine-month suspended jail term last year by NSW District Court judge James Bennett for the 2005 leak of two confidential Australian Customs Services reports. The 60-year-old is challenging his conviction in the NSW Court of Criminal Appeal. The top-secret documents outlined serious gaps in anti-terror security at Sydney airport, as well as claims of drug trafficking by staff. Following reports in The Australian in 2005, the Howard government spent $200 million trying to address the problem. Bernard Glennon, for Mr Kessing, yesterday told the court the verdicts were unreasonable and could not be supported by evidence at the trial. Dr Glennon said there was no direct material put before the court that his client had spoken to both Martin Chulov and Jonathan Porter, two reporters from The Australian. "Mere suspicion alone will not suffice," he said. "There may have been phone calls ... but there's no direct material before the court that my client had been in contact with the two reporters. There's no material before the court that any conversation in fact took place." He argued Judge Bennett might have confused jurors by urging them to find Mr Kessing had contacted both reporters, before a "significant shift" in which he said it only mattered that Mr Kessing had contacted one of the men. The initial case was brought on the basis that Mr Kessing had spoken to both men, but was broadened late in the trial to an "either/or" basis, Dr Glennon said. But Tim Game SC, for the commonwealth, said the arguments were procedural in nature and did not outweigh the strong circumstantial case against Mr Kessing. The evidence showed Mr Kessing had access to the reports, had taken them outside of his workplace, and made contact with Chulov, he said. "That combination is the combination that made the case what it was," Mr Game said. He accused Dr Glennon of trying to mount an "excessively restrictive" definition of communication, and said Mr Kessing's intention in allegedly leaking the information to Chulov was clear. "He intends to communicate it directly or indirectly to whoever can be found that will read it," Mr Game said. He said that since the names of both reporters appeared above articles, it was reasonable to assume they had both read the stories and that the information "had been communicated to them". "There was communication to him (Porter) because he read the article," Mr Game said. Dr Glennon challenged the admission of the article as proof of a relationship, labelling it "hearsay". But Mr Game said it was one piece of circumstantial evidence in a circumstantial case. "This document is the case," he argued. "It's white (mental asylum) uniforms and things, to be saying it doesn't get into evidence." Judges Virginia Bell, Stephen Rothman and Derek Price will hand down their decision on a date to be fixed. ]]> http://circus.waddayano.org/blog/2008/10/appealing_to_justices.php http://circus.waddayano.org/blog/2008/10/appealing_to_justices.php Sun, 26 Oct 2008 09:27:18 +1000 Airports left with very thin blue line Natalie O'Brien and Peter Wilson | May 02, 2008 ALMOST a quarter of the extra police promised to tighten security at Australia's major airports are still not in place, three years after a scathing review warned that security was inadequate and dysfunctional. At least two states with international airports - Western Australia and Queensland - will not have the full complement of police numbers in place until the end of the year at the earliest. Other promises that have not been met in the wake of the review by British aviation expert John Wheeler include the upgrade of closed-circuit television systems, better security checks and training for private security guards, and an intelligence system to share information regarding crime and terrorism. And claims by the Department of Infrastructure that the X-ray screening of cargo being loaded on to passenger flights within Australia had been expanded have been contradicted. Scott Connolly, the national aviation officer for the Transport Workers Union, yesterday said only a very small volume, if any, of domestic freight was being X-rayed before being loaded on to passenger jets. "This is an ongoing issue. What are we waiting for?" he said. Sir John last night said the failures pointed to the need for a further review. "It is always a good idea to independently check that things are actually happening," he told The Australian in London. "You have to go back and unblock the processes sometimes. "I believe the outgoing prime minister (John Howard) was implementing the recommendations and that Mr (Kevin) Rudd is just as keen and believes my recommendations are important. "But the relationship between the states and the commonwealth is always more difficult and there may be obstacles to things like actually putting in place the required number of police. That is the sort of obstacle you need to look at." Sir John's review was commissioned after the Howard government was forced to take action following reports in The Australian about security breaches at Sydney airport. Despite his denials, former Customs officer Allan Kessing was last year convicted of leaking information about lax security to The Australian. Sir John's report highlighted a string of flaws in security, including a culture of under-reporting and tolerance of theft at airports compounded by a lack of on-site police to do anything about it. The report recommended the formation of specially trained on-site police units to overcome problems with "inadequate and dysfunctional" security. Sir John pointed out the need for co-operation between state and federal police, including the appointment of airport police commanders. Those commanders, provided by the Australian Federal Police, are in place, but the full complement of staff is not. According to AFP figures, there is a shortfall of 80 police needed to make up the total force of 334 police officers to be deployed at the 11 major airports considered by the Wheeler review. AFP commissioner Mick Keelty has blamed a national shortage of trained officers. The problem is most acute in Queensland. At Brisbane and Cairns airports, there are fewer than half the 118 police promised to safeguard the aviation hubs. A Queensland police spokeswoman said 53 police were in place and the force was still recruiting the remaining 65 men. Sir John made 17 recommendations, with four of them still not in place. A Customs spokesman said the upgrade and expansion of the CCTV coverage would be completed by June 30. Additional reporting: Paul Maley Airport policing units in disarray Natalie O'Brien | June 02, 2008 THE $300 million specialised policing units set up to protect the nation's international airports in response to the scathing Wheeler review of airport security, are on the verge of collapse. Plummeting morale, operational conflicts and officers "clamouring" to get out, have undermined the attempt over the past three years to tighten security at Australia's 11 main airports. An investigation by The Australian has revealed government agencies that have contributed staff and services to the joint airport intelligence and investigation teams are also reviewing their position in the policing teams. Police Federation of Australia chief executive Mark Burgess has called for an urgent review. "It just has not worked," he said. "It has always been an obligation of the AFP and, when you put it on to eight different agencies, this is the outcome." Federal Police Association president Jim Torr said the unitsrepresented a "band-aid response". Mr Torr said international airports were the responsibility of the federal Government and its policing agency. British expert John Wheeler was commissioned in 2005 to review airport security after the Howard government was forced to take action when The Australian exposed a string of breaches at Sydney airport. Sir John's 17 recommendations included the formation of specially trained on-site police units to overcome problems with "inadequate and dysfunctional" security. The report called for co-operation between state and federal police assigned to patrol the airports. The Australian revealed last month there was a shortfall of about 80 police in making up the total cohort of 334 police officers. Since the Wheeler report, the federal Government has spent $886 million upgrading security, with $354 million for the specialised Unified Policing Models. However, police sources say the situation is worse than ever, with many state police officers clamouring to get out and others unable to be convinced to replace them because of infighting between law enforcement agencies, and discontent over entitlements, equipment and training. The Board of Airline Representatives of Australia is seeking another audit of airport policing, saying key areas have seen little improvement since the Wheeler review. It is feared the problems will be exacerbated by federal cuts in last month's budget of $1.5 million to the AFP's airport liaison officers network, and the $2.5million funding for the AFP's surge capacity. It is understood the situation with airport security teams is so parlous that the federal Government is considering suggestions to withdraw the AFP-led teams from the airports. The Department of Infrastructure, Transport, Regional Development and Local Government, which is responsible for overseeing the implementation of the Wheeler report, did not respond to questions from The Australian. The Victorian Police Association says its members who are involved in the airport policing teams have a range of grievances, including their members not receiving the same pay and entitlements as their AFP counterparts, even though they are working as AFP officers. NSW Police Association secretary Peter Remfrey said the issues had been mounting and also included complaints about operational issues and equipment, including lockers, guns and even provision of raincoats. "All the issues contribute to the lack of attraction of police to join," Mr Remfrey said. "There is a level of frustration over what ought to be bread-and-butter issues for the union which can be resolved." AFP 'ignores' requests for police review Natalie O'Brien | September 26, 2008 THE Australian Federal Police has "studiously ignored" requests by the nation's peak airline group to review its new airport policing model, amid concerns little has improved since the scathing Wheeler study of security three years ago. Warren Bennett, executive director of the Board of Airline Representatives of Australia, said the organisation had taken its request to senior AFP levels but nothing was done. "We have repeatedly asked the AFP to undertake a review of all policing models," Mr Bennett said. "But we find it difficult to get a response ... in terms of getting them to discuss the issues -- there's nothing." The AFP was given the job of running the new $300 million airport policing units, recommended by the Wheeler review in 2005. The Australian understands the force has undertaken a review to determine how its operations measure up to the Wheeler recommendations, but refuses to release it. Mr Bennett said he was unaware of the report. An AFP spokesman said it had communicated regularly with Mr Bennett. He said the force had offered to speak to association members but Mr Bennett had declined the offer. "The aviation review was produced to inform a planned review of the unified policing model, which was due to start after a full 12 months of operation," the spokesman said. British expert John Wheeler was commissioned to review airport security after the Howard government was forced to take action when The Australian exposed breaches at Sydney Airport. Sir John's recommendations included integrating state and federal police at airports, and forming specially trained on-site police units. Despite the changes, airlines have been complaining of in-fighting between state and federal police officers and poor emergency response times. Earlier this year The Australian reported that the police units set up to protect the international airports were on the verge of collapse. Plummeting morale, operational conflicts and a shortage of police had undermined the attempt to tighten security.Under the Wheeler plan, 334 police were to be deployed to the main airports. At least two states with international airports, Western Australia and Queensland, will not have their full complement until the end of the year. September 27, 2008 09:13pm ]]> http://circus.waddayano.org/blog/2008/10/oz_stands_1.php http://circus.waddayano.org/blog/2008/10/oz_stands_1.php Sun, 26 Oct 2008 09:22:32 +1000 ALP Proclamation of SUPPORT. 26th October 2007 KRUDD & JLUDWIG A Freedom of Information Commissioner will replace the Administrative Appeals Tribunal in the FOI review process. Federal Labor will preserve the role of Privacy Commissioner and also complete the existing review of the operation of the Privacy Act so that protection and access to personal information across both the Privacy Act and FOI Act regimes are consistent. Federal Labor is proposing a significant restructure of information laws. A Rudd Labor Government will: Bring together the functions of privacy protection and freedom of information in an Office of the Information Commissioner – to streamline and fast-track information policy across government; Preserve the existing role of the Privacy Commissioner – to protect individual privacy; Abolish conclusive (non-reviewable) certificates from the FOI process – which stymie genuine requests by allowing Ministers to arbitrarily deny the release of information – For example, Treasurer Peter Costello refused to release information on income tax bracket creep and data on the First Time Home Owners scheme; Support reasonable changes to current journalist shield laws to protect their sources and ensure that a responsible journalist is never again prosecuted for a story that is “merely embarrassing” to a government; Pursue national reform of suppression orders in court proceedings through the Standing Committee of Attorneys-General; and Provide best-practice legislation and expansion of protection for public interest disclosure whistleblowers protecting them from retribution – such as the customs officer, Mr Alan Kessing, who blew the whistle on organised crime, lax airport security and inadequate policing. This is about breaking the code of silence that has developed after 11 years of the Howard Government. Access to government information and decision-making are keys to a healthy and vibrant democracy. It also means that members of the community can obtain reasonable access to government records and documents that affect their lives. Indirectly, strong FOI laws mean bureaucrats will provide advice to their ministers without fear or favour – knowing that they may be held to account and their decisions could made public. The current FOI regime allows the Howard Government to escape real transparency and genuine accountability. For 11 years, the Howard Government has shrunk away from the light of public scrutiny and transparency – by abusing the current FOI laws. A more open system for obtaining reasonable access to government records is the mark of a strong democracy. In addition, it is essential that we keep a strong system in place to protect the privacy of individuals. Background – FOI refusals – full or in part In the period 1997-98 to 2005-06, the Howard Government refused full access to 75, 064 information requests; of those 57,975 were refused in part and 17,089 refused completely. In the period 2005-06, the Howard Government refused full access to 8,655 information requests; of those 6,298 refused in part and 2,357 were refused completely. http://circus.waddayano.org/blog/2008/10/krudd_ludwig_fairweathered_opp.php http://circus.waddayano.org/blog/2008/10/krudd_ludwig_fairweathered_opp.php Sun, 26 Oct 2008 09:17:23 +1000 XENOPHON maiden http://www.aph.gov.au/senate/senators/homepages/first_speech/sfs-8IV.htm Nick Xenophon, Senator South Australia First Speech 27/08/2008 Mr President, before I begin, let me offer you my sincere congratulations on your election to the office of President of the Senate. I look forward to your independent, wise and even-handed guidance in this chamber. Whilst this is my first speech in federal parliament, it is not actually my first speech in a parliament. ….. Good governance is also about the freedom to speak out when it is in the national interest. In 2007 News Ltd journalists Michael Harvey and Gerard McManus were convicted of contempt of court. Their ‘crime’ was refusing to testify in a matter relating to senior public servant Desmond Kelly. Mr Kelly had been accused of leaking cabinet documents that showed the then government intended to short-change war veterans’ entitlements to the tune of hundreds of millions of dollars. The story was in the national interest. The public had a right to know. The journalists and any source should never have been charged. Nor should Allan Kessing have been charged and convicted. He was a Customs official accused of leaking the report on security breaches at Sydney airport that lead to a $200 million emergency upgrade in airport security. For democracy to work we need to know not just the good things about a government but also the things that do not reflect well on it. If you really believe in a citizen’s right to exercise democratic choice, surely we must all agree this has to be an informed choice. http://circus.waddayano.org/blog/2008/10/xenophons_maiden_the_stranger.php http://circus.waddayano.org/blog/2008/10/xenophons_maiden_the_stranger.php Sun, 26 Oct 2008 09:14:13 +1000 BRISBANE Times Oct12th 2008 Richard ACKLAND. http://www.brisbanetimes.com.au/articles/2007/10/11/1191696078363.html No mercy should be shown to bureaucratic leakers. For a government that likes everyone to stay "on message", leakers are the naughtiest of the naughty. They distract from the pure stream of truth we receive from Canberra. As the secretary of the Prime Minister's department, Peter Shergold, reminds us: "If some people seem surprised that I have called in the police to deal with leaks, they shouldn't be - I always have and I always will." Yet the Trent Smith leak case has some important distinguishing features. Smith has succeeded in challenging his sacking from the Department of Foreign Affairs and Trade for allegedly breaching the public service code of conduct. In fact, the Smith case was one of Canberra's nastiest witch-hunts and as the judgment of Commissioner Barbara Deegan in the Australian Industrial Relations Commission makes clear, his sacking was "harsh, unjust and unreasonable". It has got to be in the pantheon with other recent celebrated leaking cases. There was a report in the Herald Sun in 2004 over proposed cuts to war veterans' entitlements. The Commonwealth Director of Public Prosecutions charged an employee of the Department of Veterans Affairs, Desmond Kelly, with that leak. Kelly was found guilty, only to have his conviction overturned on appeal. Causing even more indignation in some quarters was the Commonwealth's prosecution of the two journalists who were the recipients of the information. They were convicted of contempt of court and fined. Allan Kessing, a former customs official, was convicted for leaking material damaging to the Government about inaction on airport security. The News Limited journalists who were the recipients of that startling information were not prosecuted. The purported complaint against Smith was that he responded, in 2002, to a request from one of Kevin Rudd's staffers, Ashley Wells, as to where a list of consultants involved in a Foreign Affairs white paper might be found. Smith replied by email that the information could be obtained by asking questions in the relevant Senate estimates committee. It was a non-controversial response, containing no classified or sensitive information. Yet that did not stop a massive departmental and police investigation involving the inspection of 8000 emails and outside "arms-length" investigators and reviewers. The investigation took four years and cost more than $1 million, with the department remaining stoutly of the view that Smith's email to Wells was politically loaded. He was sacked in July last year and applied to be reinstated in December. On September 28 Deegan found his dismissal had been unlawful. Such was the force of her findings that the department says it will not appeal and Smith can have a job, subject to passing a security clearance. Something else must have been at play here. Sure enough, the gun started smoking in early 2003, the year Smith was suspended on full pay while another investigation was under way into who leaked an embarrassing conversation that occurred the previous October between the Foreign Affairs minister, Alexander Downer, and the New Zealand high commissioner in Canberra, Kate Lackey. This record of conversation found its way to Channel Nine news on February 4, 2003 and caused huge consternation in the Government. The record had Downer saying that Australia would prefer United Nations backing for taking action in Iraq, but if the UN processes broke down and a resolution was not forthcoming, then Australia would not withdraw its forces already stationed in the Persian Gulf at the time. A fair interpretation was that regardless of what the UN did, Australia was already committed to military action in Iraq. Downer denied it with the same vigour he brought to his denials during the investigation into the AWB scandal. He insisted no decision on deployment of troops to Iraq had been made at that time. It was "completely absurd". Certainly it would be a deceitful thing for the Prime Minister and the Foreign Minister to be telling the Australian people in October 2002 that any commitment of troops to Iraq was "hypothetical" when all the time they knew it was going to be a reality. Smith was put in the gun for this leaked record of conversation by another Foreign Affairs officer, Matthew Hyndes, whose career, to say the least, had been colourful. For a time Hyndes took leave from his diplomatic post in Bangkok to work for a finance company that gave loans to drug-dealing Thai officials, although he says he was unaware at the time they were corrupt. Hyndes was also a committed supporter of the National Party, although he insists that didn't mean he had "contacts with the Government". At present he is Australia's deputy high commissioner in Sri Lanka. After he gave his now discredited evidence to the industrial relations commission, the Government extended his appointment to Colombo. Deegan said Hyndes's evidence "was not given frankly or, in my view, truthfully". Asked by Craig Skehan of the Herald's Canberra bureau how many times Downer had been briefed about the Smith affair, the department replied: "The minister has been kept informed of significant developments in the matter as appropriate." I bet. The department could find no evidence that Smith had leaked Downer's record of conversation to Channel Nine or anyone else, yet he was sacked for a harmless and professionally responsible email reply to one of Rudd's staff. What does that tell you? That they were just desperate to "get" him? justinian@lawpress.com.au http://circus.waddayano.org/blog/2008/10/no_mercy_for_whistleblowers.php http://circus.waddayano.org/blog/2008/10/no_mercy_for_whistleblowers.php Sun, 26 Oct 2008 09:07:22 +1000 Australian Press Council Submission to to the Australian House of Representatives Standing Committee on Legal and Constitutional Affairs Inquiry into Whistleblower Protection within the Public Sector. 12 August 2008 Executive Summary The Australian Press Council calls upon the Commonwealth government to introduce legislation to provide protection for individuals who make public interest disclosures. In order to ensure this legislation is effective, it should include the following: It should be an offence to penalise, discriminate against, harass, victimise or retaliate against an individual who makes a public interest disclosure. The legislation should establish an immunity from internal disciplinary action for making a public interest disclosure, including disclosures made to the public via the media. The legislation should establish an immunity from criminal prosecution for breaching any secrecy or confidentiality requirements in the course of making a public interest disclosure, including disclosures made to the public via the media. The legislation should establish an immunity from civil action for making a public interest disclosure, including disclosures made to the public via the media. The legislation should establish a right to claim compensation for loss or injury suffered as a result of making a public interest disclosure, including disclosures made to the public via the media. Government employees who do not fall under the Public Service Act should be included in the scope of any legislation dealing with public interest disclosures. Provision should be made for public interest disclosures by contractors who provide services to government and their employees. The legislation should make provision for disclosures to be made to the media in certain specified circumstances. Where a public interest disclosure has been made to a designated government agency or officer, that agency or officer should be required to investigate promptly and to publish the results of that investigation, together with any recommendations for rectifying action, when it is complete. Submission In a perfect world, where every administration is efficient and effective, where every public officer is completely honest, and where every politician is sincere and willing to reveal error no matter how embarrassing, there would be no need for whistleblowers. Unfortunately, such a world exists only in the realm of fantasy. The whistleblower performs a service to the public every bit as important as that performed by the police officer or the soldier. By reporting instances of maladministration, the whistleblower facilitates their rectification. Yet, in response to this service, whistleblowers are often severely punished, suffering damage to their careers, possibly receiving criminal convictions and even imprisonment. Recent history gives many examples of whistleblowers whose actions have brought to light instances of malfeasance or structural inefficiencies and, in so doing, have resulted in positive action to address problems or improve procedures. The information which was alleged to have been disclosed by former officer of the Australian Customs Service, Allan Kessing, ultimately led to a review of airport security. Reporting of problems at the Bundaberg Hospital by nurse, Toni Hoffman, to a member of parliament resulted in a commission of inquiry and the extradition of Dr. Jayant Patel to Australia to face charges of manslaughter, grievous bodily harm, and fraud. The Australian Press Council recognises that there is a need for confidentiality in both government and private administration. However, mechanisms that enforce confidentiality must be balanced by mechanisms that protect the rights of whistleblowers where they act in the public interest. At present, there is no balance between the high level of regulation that seeks to protect confidentiality on the one hand and the minimal amount of protection provided for whistleblowers on the other. On the contrary, the potential penalties set down in the Commonwealth Crimes Act 1914 for breaching secrecy or confidentiality provisions are severe, involving custodial sentences of up to two years for breaching s.70 or up to seven years for breaching s.79. On the other hand, section 16 of the Public Service Act 1999, which is the primary mechanism for whistleblower protection at the Commonwealth level, only applies to about half of all Commonwealth employees. Furthermore, the protection afforded by s.16 is limited, both in terms of the individual or agency to whom information may be disclosed and the nature of the protection provided. Similarly, the extent of whistleblower protection at the state level can hardly be considered to be adequate. Several of the states have enacted legislation that aims to facilitate protected disclosures, but only the NSW Protected Disclosures Act 1994 extends the protection to include disclosures made to the media. The Australian Press Council accepts that there may be sound reasons for requiring a public interest disclosure to be made to government officers rather than to the public. However, there are often instances where disclosure to a government officer according to prescribed procedure fails to result in action to address or prevent the conduct which is the concern of the disclosure. This was so in the case of NASA engineers who raised safety issues relating to the Space Shuttle. Failure to act on those concerns ultimately resulted in the Challenger disaster and the deaths of seven people. Similarly, the failure of health administrators to act on the concerns of Toni Hoffman in relation to events at Bundaberg hospital resulted in the deaths of patients treated by Jayant Patel. In such instances disclosure to the public, via the media, will often provoke positive action on the part of the government. This occurred, for example, when the media reported on security issues at Sydney airport, subsequent to which security was upgraded. Consequently, it is vital that any legislation which aims to facilitate the making of public interest disclosures make provision for such disclosures to be made to the media. In order to facilitate public interest disclosures there are a number of features which any legislation must include. Omission of any one of these features has the potential to render the legislation ineffective. These features include immunity from prosecution for breaching obligations of secrecy or confidentiality; immunity from civil litigation, such as actions for defamation, breach of confidentiality or privacy infringement; immunity from internal disciplinary action; protection against reprisal or victimisation; and provision for compensation, including reimbursement of medical or legal expenses and compensation for injury in employment or injury to health. Perhaps the most problematic aspect of any attempt to formulate an effective protection for public interest disclosures is the need to identify when a disclosure qualifies for the benefit of being protected. The kind of information which may constitute a public interest disclosure should include, but not be limited to, maladministration, corruption, misappropriation of public funds or public assets, wastage of public funds or resources, conduct which poses a threat to health or safety or the environment, any breach of a law of parliament, injustice, or any breach of a code of conduct. However the test is formulated, the emphasis must be on the public interest. For the purposes of making internal disclosures, or disclosures to the Ombudsman or to an officer designated to receive public interest disclosures, it should be a sufficient test that the employee honestly believes, on reasonable grounds, that it is in the public interest that the material be disclosed and honestly believes, on reasonable grounds, that the material is substantially true. The Council is strongly of the view that a whistleblower should be able to make a disclosure either to a member of parliament or directly to the public via the media and that the test to be applied in order to determine when disclosures to the media are protected should be framed as widely as is practical. A whistleblower should be free to approach the media to make a public interest disclosure in the following circumstances: Where they honestly believe, on reasonable grounds, that to make the disclosure along internal channels would be futile or could result in victimisation, OR Where the they honestly believe, on reasonable grounds, that the disclosure is of such a serious nature that it should be brought to the immediate attention of the public, OR Where they honestly believe, on reasonable, that there is a risk to health or safety, OR Where internal disclosure has failed to result in prompt investigation and corrective action. The NSW legislation specifies that whistleblowers must wait for a period of six months after making an internal disclosure and then, only if no investigation has been completed and recommendations made, are they able to make a disclosure to the media. Six months is an excessive length of time to impose as a precondition to disclosing material to the media. Even a short interval could result in a continuation of any malfeasance or threat to health or safety. It should also be recognized that delay may be a deliberate attempt to frustrate the progress of any complaint or investigation. For that reason the Press Council urges that any waiting period be as short as is practical. When determining who should be able to make a protected disclosure, it is important that the legislation extends well beyond the scope of the current protection available under the Public Service Act. Any public disclosure legislation should make provision for disclosures by government employees who fall outside of the Public Service Act and former employees, as well as contractors who provide services to government agencies and their employees. The importance of extending the scope of public interest disclosure protections to contractors has been greatly increased by the high levels of outsourcing which have characterised government workplaces in recent years, particularly where "temporary" employees, hired through an agency, may carry out duties in a government office for months or even several years. The protection should also be available to the families and close associates of whistleblowers, who may be subject to reprisal action if they are employed by the government. Governments frequently see whistleblowers in a negative light, as a nuisance or even as a threat. Irritating though they might sometimes be, whistleblowers should be regarded as a valuable resource that has the potential to ensure that problems are rectified before they become intractable. The conservative view, that whistleblowers should be restricted to making public interest disclosures only to government officers, fails to recognise the fact that the whistleblower is often a product of an organisation that has failed to operate as it should, with both efficiency and integrity. In a dysfunctional administrative environment, the whistleblower may be justified in the view that internal reporting mechanisms are not only fruitless, but their utilization would jeopardise his or her personal position. In such circumstances, only the ability to approach the media can ensure that the disclosure will result in action prompted by public debate. For this reason a public interest disclosure legislation that does not provide for disclosure to the media will be unsatisfactory. http://circus.waddayano.org/blog/2008/10/press_council_whistleblowe_sub.php http://circus.waddayano.org/blog/2008/10/press_council_whistleblowe_sub.php Sun, 26 Oct 2008 09:02:10 +1000