Christine Milne (Tasmania, Australian Greens) Share this | Hansard source

I rise today to discuss the issue of whistleblowers and the Public Interest Disclosure Bill 2013. The Greens have long had a keen interest in seeing that we advance the national interest by having strong whistleblowers legislation. It has been a frustration of ours for a considerably long time that we have failed to have that, and Australian democracy has not been served well by the fact that people who blow the whistle end up being the victims in those circumstances and subject to a shoot-the-messenger strategy rather than others actually learning from the messages that they have to convey.

Our view is that whistleblowers are essential to advancing our national polity. When police officer Col Dillon spoke out, he caused the Fitzgerald commission, which in turn changed the entire system of governance in Queensland. Similarly, there were years of political resistance to examining the scourge of institutionalised child sexual abuse until Peter Fox broke ranks and spoke out last year. His actions are already changing the course of history in Australia in relation to that particular issue.

The Greens are concerned about the needless complexity of the bill that is in front of us, particularly when a template for best practice and simplicity already exists in the ACT legislation that was introduced under the Greens-ALP agreement. Nonetheless, we will support this bill because it improves workplace rights for public servants and it will increase efficiency and minimise public expenditure waste. I have to say that I was really disappointed that, after the government said it would act on whistleblowers, it did not do so for a very long time and that the bill that was brought forward was in fact a pathetic piece of legislation. I congratulate the current Attorney-General for turning his mind to this and significantly improving the bill that first came forward. Unfortunately, this bill is a lot more complex than it needs to be. Nevertheless, I want to acknowledge the work that has been done by the Attorney-General to get this onto a reasonable frame.

Having said that, the Greens did secure an amendment in the House of Representatives. That is because, in the bill as it stands, there is provision for emergency whistleblowing when it comes to the issue of public safety, human safety, but there was nothing in the legislation which provided for an imminent risk when it came to the environment. As people would be aware, there are always situations where you might end up with people knowing—in the case of the Gulf of Mexico, for example, there was that oil rig. We had the Montara spill here in Australia. There are many other examples where people may have known and would have liked to blow the whistle and be safe and able to do so before disasters occur or know that disasters are imminent which will have significant impact for the environment. So I am pleased that the government accepted that amendment. It will allow the whistleblower to go public immediately, instead of having to wait over 100 days, if they have knowledge of a significant threat to the environment. Someone who knows of regulatory failure or a compromised EPBC assessment threatening our places that are too precious to lose will now be able to expose it publicly before the damage is done.

The passage of this bill will plug one more leak in the accountability wall. In so doing, the parliament has left the biggest gap to be the last one to fill—that is, a national anticorruption commission. The Greens have long said that we need a national anticorruption commission. We have not got it as a result of this legislation, but of course it is something that we will keep on campaigning for. A permanent commission as embodied in the Greens' National Integrity Commissioner Bill would complement this whistleblowing scheme. I note, of course, that the Australian Commission for Law Enforcement Integrity already overseas the Federal Police; nevertheless, I do not think it is enough.

We need, as I said, a national anticorruption commission that could pursue wrongdoing exposed in our Public Service, particularly if our amendment to include MPs in the legislation is successful. We are putting that up as an amendment because we think it is important that people who know of wrongdoing in parliamentary offices, not just ministerial offices, be covered by whistleblower protection. We cannot continue to rely on ad hoc responses to corruption like we saw with the Customs review announced last December after the exposure of corrupt officials. It is time that there was a systemic process that covered everybody under whistleblowers so that they had their cases, the allegations that they made, fairly assessed.

Just how far we have to travel for proper scrutiny on the activity of MPs is demonstrated by the blanket exemption from these whistleblowing laws of MPs, ministers and their staff. Our amendments place MPs and their staff in the scheme. How can politicians garner public trust when they exempt themselves from the standards of scrutiny that they apply to others?

This issue goes to the heart of what has changed in recent years—that is, the contractual arrangements for senior people in the Public Service. Changing them from permanency to contractual arrangements means that they know full well that their contract has to be renewed under a change of government or even in the course of a period of government, so the community does not have the same confidence that it might once have had in the independence of the Public Service. In fact, people would now argue that we have a ministerial service.

Equally, during the years of Prime Minister Howard, we had the ability to prevent staff of members of parliament from appearing before inquiries. Of course, we will remember that forever in the children overboard affair, where members of staff were prevented, or protected, from attending investigations of committees into those matters. One cannot help but assume that they knew and did not want to have to say what happened, but also, if they had wanted to say what happened, they would not have been covered by whistleblower legislation—and I think they should have been. The Greens also want to remove the affected blackout of external disclosures for employees of intelligence agencies, but we want to keep in place the extensive list of exemptions relating to investigations, operations and national security.

This bill will make our intelligence organisations the most vulnerable of all the public sector agencies because wrongdoing is least likely to be detected. For instance, in 2011 security clearance documents used by ASIO were falsified at the instruction of senior Defence staff to speed up the backlog of applications. Internal complaints yielded nothing, so they went public. The civilian whistleblowers who exposed this fraud have in fact strengthened our national security. What this blanket exemption on external disclosures will do is weaken the integrity of our national security—and that is why we want that changed. Our amendment is for the minister to have broad, non-compellable power to make payments to those who expose wrongdoing. Jurisdictions providing whistleblowers with a cut of any recouped public money has been very successful as both an integrity and a public review measure. This clause would simply allow an act of grace payment in these circumstances or where there is a public interest in doing so.

The example I want to give here is following home affairs minister Jason Clare's refusal to grant a pardon to Allan Kessing. The Special Minister of State could make a payment in recognition of his contribution to public safety and his $70,000 of legal expenses. I still believe a major injustice was done to Allan Kessing, who blew the whistle on security concerns at Sydney airport. It cost him $70,000 in legal fees and he has a criminal conviction. He applied for a pardon for that criminal conviction because it was shown that his issues were not vexatious. What he stood up and said occurred was actually shown to be so.

I have said in the Senate before and I say again today: there should be an explanation from Minister Anthony Albanese, but it has not eventuated. Mr Kessing has always maintained that he did not publicly release the material that resulted in his criminal conviction. He went to his local member for Grayndler with that information, then somehow it made it into the Australian. The ALP used Mr Kessing in their 2007 election campaign to hammer the Howard government's treatment of him. Then they tossed him away, effectively, after he served their purpose and refused him a pardon. I find that disgraceful. To this day I say that Allan Kessing ought to be given a pardon. The amendment the Greens are putting forward would allow not just for him to receive a payment but for the minister to have an act of grace capacity to make payment to anyone who does blow the whistle in the future and is subsequently financially disadvantaged.

Our final amendment removes any shadow of a doubt that the Ombudsman can investigate the way that agencies treat an employee and their disclosure. The government believes it has already achieved this by inserting notes at the end of the relevant provisions, but the Greens do not share this optimism of statutory construction. The explicit prohibition in the Ombudsman Act is not clearly displaced and will probably be determined in court. Why not remove the uncertainty for no public cost and do it now?

I want to refer briefly to the Australian Federal Police. While the parliament may change the law for whistleblowing, what legislators cannot do is change the culture within agencies to encourage and support those who expose wrongdoing. The bullying, marginalisation, humiliation and threats to security of employment will continue, even with the passage of this legislation, unless senior management in the Australian Federal Police take active steps to encourage a new culture in their workplaces. Some agencies will not require much work at all, while others, like the Australian Federal Police, have a lot of reflecting and implementing to do. In fact, the AFP demonstrates the point that having all the right management processes, professional standards, codes of conduct and statutory powers in place means nothing for employees unless senior management embody and actively promote those principles.

There have been two recent AFP whistleblowers whose disclosures were stonewalled by their chain of command and internal complaints systems, so they went to the media. Ross Fusca was a decorated, 30-year veteran who headed the AWB oil-for-food task force. He blew the whistle because the inquiry was shut down when there were many lines of inquiry open. The other is Sergeant Brendan Thomson, who repeatedly warned his special response group management of the heightened risk of rioting and self-harm in the Christmas Island detention centre. After his team was removed from the island, he contacted Commissioner Negus directly, saying his reports were being ignored because they wanted to get off the island. As well, as we all know, the riots ensued.

These two men were both marginalised and humiliated in the workplace. They were offered no official support, yet they both received private text messages and emails from their colleagues congratulating them and apologising for not speaking out themselves for fear that the same treatment would put their mortgages and children's schooling at risk. They are both now in legal disputes with the AFP. Both claim that the legal tactics used are underhanded and breach the model litigant guidelines. Those tactics involve running up costs to place a huge financial burden and the threat of crushing costs orders. As one of the whistleblowers has informed us:

I can guarantee that if the commissioner had to cash in his leave, sell off his personal investments and mortgage his property to finance this course of action he wouldn't be so quick to jump on the litigious merry go round. However it appears when the Australian tax payer is covering his ride it is nothing more concerning than a stroke of his pen.

One of these whistleblowers has spent over $100,000 of his own money, while the other was advised that he will have to spend around $140,000 on his dispute. These two people are at the mercy of the AFP's legal strategy, which is determined by their deep pockets.

Following their treatment by the AFP, we have lost two highly dedicated officers. They have the highest sense of duty and honour to their work, which is why they chose to speak out and challenge mismanagement and cover-ups. As Lieutenant General David Morrison now famously put it this month when challenging sexism in the Defence Force:

The standard you walk past is the standard you accept.

You can tell when the leaders like him really want to change the culture, and no such leadership is apparent in the Australian Federal Police.

Based on testimony in Senate estimates, AFP senior management are more in denial that a problem exists rather than being willing to accept that the culture needs to change and that they need to do something about it. After Sergeant Brendan Thomson contacted Commissioner Tony Negus directly criticising the conduct of his superiors, an email went around saying that any current SRG member who has any contact with Brendan Thomson should report such contact as you would if you had contact with criminal entities. What sort of behaviour is that, coming from a senior officer saying that if you have contact with this person, who has been one of your colleagues, treat him as if you had had contact with criminal entities?

Commissioner Negus denied this email related to Sergeant Thomson, claiming:

It was a broad-based email reminding people of their responsibilities.

Deputy Commissioner Peter Drennan also replied:

Yes, there was an email that was sent around. It actually had nothing to do with Sergeant Thomson at all. It was reminding them of their responsibilities and reporting obligations. Unfortunately, it was misinterpreted by one of our officers, who then on-forwarded it and made reference to Sergeant Thomson.

We have copies of the email chain, which were obtained under FOI. The subject heading of the email reads 'SRG members in contact with former AFP member Brendan Thomson'. That hardly leaves room for misinterpretation. As Deputy Commission Drennan stated:

The member who forwarded it to Sergeant Thomson did not edit the original email. He on-forwarded it.

Here we have the public humiliation of a current member of the Australian Federal Police. Instead of reprimanding Assistant Superintendent Greg Corin and the other officers responsible for sending out the email, senior management confronted the officer who forwarded the email. Deputy Commissioner Drennan confirmed:

He has been spoken to. He realises the error he has made. He has withdrawn that.

The AFP continue to deny the psychological impact an email like that can have on someone. With management priorities like that, it is no wonder no-one is willing to speak out.

The AFP have a lot of work to do to inform employees of their right to speak out. He was admonished for contacting the commissioner directly, after his chain of command failed. But that is his workplace right under section 40SA of the AFP Act. Let's hope that this legislation on public interest disclosure that is before the parliament today is the impetus for a cultural change in the Australian Federal Police.

To conclude, although this legislation is late, it is better late than never. It is legislation the Australian Greens had been hoping we would see in here earlier in this period of government. Nevertheless we are now dealing with it. As I indicated earlier, I think it is a lot more complex than it needs to be. We would have liked to have seen something more similar to the ACT legislation, but, nevertheless, what we have is what we are dealing with. I also want to acknowledge those people in Minister Dreyfus's office and in the department who have worked tirelessly for whistleblower protection here and around the world.

With those remarks I thank the government for accepting our amendment on putting in whistleblower protection for notification of an imminent threat with regard to the environment, in addition to what they have done themselves on an imminent threat with regard to human life and safety. I look forward to the passage of the bill, and I hope we can persuade the members of the coalition to support our other amendments that we have indicated we will move, and have circulated.