Some months ago, I wrote a piece about the monstrous punishment meted out to Fiona Wilson for her blowing the whistle on the fudging of a gas leak audit by Origin Energy. In that piece, I also related some of the punishment suffered by the Commonwealth Bank whistleblower Jeff Morris1. The government protects whistleblowers under the Public Interest Disclosure Act 20132, which is stated to facilitate the disclosure of public interest information and to provide protection for those making disclosures and those who are the subject of disclosures3. It is designed to offer protection of whistleblowers from reprisals and applies to public officials who disclose suspected illegal conduct, corruption, maladministration, abuses of public trust, deception relating to scientific research, wastage of public money, unreasonable danger to health or safety, danger to the environment or abuse of position or conduct which may be grounds for disciplinary action. However, under Section 70 of the Crimes Act 1914, unauthorised disclosure of Commonwealth information is a federal crime that carries a penalty of two years imprisonment. This provision is often used to pursue whistleblowers and those federal government employees and private contractors who leak information. This has been the case more so since the Abbott government took office, with federal agencies having referred journalists from the Guardian, News.com.au and the West Australian in an attempt to uncover sources of stories on immigration4.
The Australian Border Force Act 2015 imposes a penalty of two years imprisonment for a whistleblower who makes an unauthorised disclosure regarding an Australian immigration detention facility. This act has been criticised by the Australian Lawyers Alliance for its discouragement on whistelblowers and journalists4, and refugee advocates had a significant victory in the High Court, when the Turnbull government abandoned the secrecy provisions of the detention system, effectively deleting those provisions which threatened detention centre workers with prison5.
The Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017 is currently before the Senate and it amends the Corporations Act 2001 to consolidate and broaden the existing protections for those in the corporate and financial sector when blowing the whistle on breaches of the tax laws of misconduct relating to an entity’s tax affairs6. Although the scope of this is very limited, referring only to tax affairs, I imagine Jeff Morris would have liked a similar sort of protection when he blew the whistle on misconduct by the Commonwealth Bank’s financial planning arm in 2008, given all that he suffered subsequently.
While these pieces of legislation are seemingly earnest, if limited in their scope, the government (of either persuasion) is not actually serious about whistleblower protection. This was clearly demonstrated by the fact that Jeff Morris and his colleagues sent a fax (it was 2008 after all) to the Australian Securities and Investments Commission, who did nothing7. This was also demonstrated by the government voting some 20 times against having a Royal Commission into the Banking and Financial Services Industry, until they were dragged screaming by the industry itself into eventually setting one up8. Despite this, they concocted a cut down version limited to 12 months, and threw in an attempt to destroy industry superannuation funds, solely because those have some union association, despite these funds consistently outperforming retail funds. The real problem with these funds is that they do not donate to the Liberal Party, so they must be exterminated.
Berejiklian channels Joh
The monumentally corrupt Queensland State Government under Premier Joh Bjelke-Petersen instituted a ban on street marches in the late 1970s with the statement that “Protest groups need not bother applying for permits to stage marches – because they won’t be granted … that’s government policy now”. Now it seems the New South Wales State Government wants to follow suit9.
On the 1stof July, new regulations will come into effect granting the NSW State Government wide powers to disperse or ban protests, rallies and virtually any public gathering on crown land, which is approximately half of all the land across the state. The Crown Land Management Regulation act 2018 includes a provision which gives public officials broad powers to “direct a person” to stop “taking part in any gathering, meeting or assembly”. In addition, public officials have discretion to affix a conspicuous sign prohibiting any gathering, meeting or assembly. Crown land includes town squares, parks, roads, beaches, community halls and other areas. Therefore, virtually all public events can only occur with the permission of public officials and hence, with the permission of the government. Permission may be granted to hold a gathering, but such permission may be withdrawn at any time, for any reason. In addition, the fine for defying a direction has been quintupled to $1,10010.
Greens member of the Legislative Council David Shoebridge sought to disallow this regulation, but the NSW Government prevented debate on his motion10. It is only a matter of time before such regulations are used as the bans in Queensland were; to shut down any debate or dissent by a corrupt government.
In 2017, the Berejiklian government rushed through parliament the Sydney Public Reserves (Public Safety) Act 2017 to allow the police to move on the homeless people who had taken up residence in Martin Place in Sydney11. It was an effective way to allow the government to continue to do nothing about the increasing rate of homelessness, because it removed the scale of the problem from public view.
The Berejiklian government also passed the draconian Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Bill 2016, which created the new offence of aggravated unlawful entry on inclosed lands, which can land a protester with a fine of up to $5,500. It gives the police powers to stop, search, detain and seize the property of protesters, as well as being given the power to shut down a peaceful protest if it is obstructing traffic. In 2014, former premier Mike Baird promised that the government was going to crack down on protesters who “break the law”. The reason for all this legislation is to prevent protests against coal seam gas exploration and mining. How do we know this? It is because Baird delivered that promise to a NSW mining industry dinner11, that’s how.
While the Banking Royal Commission is clearly demonstrating that Jeff Morris was right about the Commonwealth Bank, and that investigative journalists like Adele Ferguson were correct about the nefarious activities of many of the banks, the NSW government has come up with a proposal to allow companies to sue for defamation. If this happens it will have a ‘chilling’ effect on the ability of people like Morris and Ferguson to do what they did. This proposal is one of several in a long-delayed review of the Defamation Act, released by NSW Attorney-General Mark Speakman. This review notes that companies were restricted from suing for defamation originally to stop them engaging in ‘Strategic Litigation Against Public Participation’ (SLAPP) because ‘reputation’ is principally a personal right and because corporations had other avenues to defend their reputations. As District Court judge Judith Gibson stated that companies were “commercial entities with commercial remedies available to them … If you’re a big company, you don’t need to sue for defamation … Imagine NAB being able to sue for defamation. We wouldn’t have had a banking inquiry”12.
Examples of companies attempting to crush dissent are numerous, but a recent one is instructive. Bruce and Belinda Robertson, cattle farmers on the NSW mid-north coast received a letter from the global law firm Ashurst, which claimed that Bruce had made allegations which were unfounded, defamatory, reckless, disparaging, dishonest, misleading, extremely false and denigrating. The victim of this supposed defamation was Grid Australia, the association of Australia’s biggest electricity companies. Bruce had exposed ‘gold plating’ in the electricity industry which had driven up power prices. His allegations led to a Senate Inquiry, which showed that his allegations were true. However, at the time, the Senate Inquiry was still under way, but the Robertsons resolved to go public. Grid Australia eventually backed off and issued an apology, not least of all because they were prevented by law for suing for defamation13. This is what the Berejiklian government is considering overturning.
Australia’s intelligence agencies have been sounding the alarm for years about the pervasive foreign interference in the political process. They have warned political parties about the dangers of accepting donations specifically from businessmen linked to the Chinese Communist Party14. It seems that the number of scandals relating to donations to both major parties15, has forced the government’s hand. It is almost needless to state that Prime Minister Malcolm Turnbull has warned that these nefarious foreigners are to blame rather than the politicians who have actively chased these donations. Turnbull also stated that the new legislation “will protect our way of life”, and “will protect and strengthen our democracy”14, despite it being his party which has actively tried to damage both our way of life and our democracy16.
The legislation is designed to ban political donations, by allowing only Australians and companies registered in Australia to be able to donate to political parties. Maybe he hasn’t heard the phrase ’local subsidiary’. The legislation will also institute a register of lobbyists working for any foreign power. However, true to form, the government could not help themselves in attempting to cripple any voices which tend to dissent from their line, or those who disclose information that may embarrass them. In so doing, it has attempted to expand the legal definition of espionage. It initially proposed to make it a criminal offence to simply receive classified information without authorisation. However, the government has been forced to water down that provision after a backlash from other political parties as well as major media outlets, including its greatest supporters, those outlets owned by Murdoch14. When Murdoch’s outlets complain to the Liberal Party, the latter snap to attention and work out how they can placate them.
The proposed legislation also endangers charities, research and community organisations, as they sometimes receive cash from foreign charities (e.g. the Bill & Melinda Gates Foundation) or sometimes work under collaborative arrangements with foreign organisations. The government disputes this, and it will only be used when these organisation indulge in advocacy which embarrasses the government. This is what this is mostly about; the legislation is designed to damage or destroy the community organisation GetUp, which has been a significant and effective enemy of the Liberal Party ever since they helped organise the electoral demise of the ‘three amigos’ in Tasmania17.
A vindictive government
Back in 2004, Australia was negotiating with Timor-Leste over the carve-up of petroleum deposits in the region between the two nations. Australia’s overseas spy agency, the Australian Secret Intelligence Service (ASIS), at the behest of the Howard Government, allegedly bugged the cabinet offices of the government of Timor-Leste. A former employee of ASIS, known as ‘Witness K’ (they cannot be identified) went, with his complaint, to the Inspector General of Intelligence and Security, and received approval to disclose the alleged bugging18.
In a demonstration of the malignance of the current government, criminal charges have been laid against ‘Witness K’ as well as his lawyer, Bernard Collaery, the former Attorney-General of the Australian Capital Territory. They are accused of a conspiracy to breach Section 39 of the Intelligence Services Act in revealing the alleged bugging. As Independent MP, Andrew Wilkie, stated in Parliament, when explaining this debacle: “this is obviously an insane development in its own right”. In a further demonstration of the disgraceful behaviour of this government, Collaery was unable to say much about the case because his summons to the ACT magistrates court was bizarrely accompanied by an anti-terrorism legislation gag order. However, he did add that the charge was a summary offence with a maximum penalty of two years imprisonment. He stated that he did not fear prison, believing that the charge was simply a “vindictive prosecution” to ruin his reputation and career. It is also an attempt by the government to intimidate any other intelligence officers and their lawyers from listening to their conscience. As Senator Nick McKim stated, it is “hard to escape the conclusion [the case] is politically motivated”, given that Collaery called for a Senate enquiry into the alleged bugging last year18.
The government has also asked for the trial to be heard in private and this will be decided at the directions hearing on July 25. Wilkie and McKim have both pledged to use parliamentary privilege to shed light on the case18.
All these instances are simply an illustration of several things about Coalition governments (and governments in general), and they are: its lack of a moral compass; its vindictiveness; its willingness to shut down any dissent; its willingness to trample anyone under foot if it gives them some sort of political advantage; its willingness to do precisely what its donors wish, not what is best for the nation; and finally, its determination to hold onto power, because it realises that when it is voted out, its ability to attract donations will be greatly diminished, because those without any power are not worth bribing. As it becomes more and more desperate, how long will it be before their focus shifts from whistleblowers, activists, protesters, public servants, lawyers and journalists to bloggers like me?