Freedom of the press and public servants’ obligations — a reply to Jacinta Carroll

By Andrew Podger

Tuesday July 23, 2019

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There are many factors to consider when exploring the importance of and limits to freedom of the press.

As a general rule, the press must be able to protect its sources when it does draw on leaks and whistleblowers, and we should be cautious about exempting national security leaks from those protections. But we also need to consider the obligations and rights of public servants.

Jacinta Carroll, whose recent column in the ANU’s APPS Policy Forum was republished in The Mandarin on 8 July, provides some useful balance to the current debate about freedom of the press and national security, and the public interest in both.

Let me add my own comments drawing both from my experience in the APS (including as public service commissioner 2002-2004) and from being a public member of the Australian Press Council since 2012. My comments are strictly my own and do not purport to reflect those of the APS or the APC.

While Jacinta focuses on national security considerations, let me canvass some other issues that need to be carefully weighed.

I do not pretend to have any detailed knowledge of the cases that have sparked the current debate, nor of all the laws now involved; my comments are more general, trying to link together the rights and responsibilities of the various players and institutions involved.

First, nothing undermines ministerial trust in the public service as certainly as leaks.

The APS Code of Conduct specifically requires ‘appropriate confidentiality’ about dealings with any minister or minister’s staff, whether they involve national security or not.

Particularly after a change of government when trust has to be earned, leaks can be very destructive and agency heads must be firm in ensuring staff loyalty to the elected government whatever its policies including toward the public service.

That said, calling in the police whenever there is a leak is not, in my view, the way to handle such matters. It is important to foster a culture that is both open and trustworthy, firmly opposed to leaking. Scaring the staff and making them all feel mistrusted is no way to achieve that culture.

I never called in the police (noting I never had a national security leak to investigate), but I did have my audit staff on occasion conduct investigations, encouraging staff to appreciate that it was not in their interest or the interest of the organisation and its clients to protect wrong-doers.

Of course, another way of undermining such a culture is for ministers or their staff to leak. Sadly, that has been, in my experience, more common than public servants leaking information. I have been asked to conduct leak investigations by ministers that pointed firmly to the leak being by an adviser, and perhaps authorised by the minister concerned. Departmental staff need to have faith in top management that such investigations will be undertaken carefully and fairly even if they rarely identify the non-APS culprit or totally absolve the public servants investigated.

READ MORE: Lunch with a whistleblower: how laws ‘lure’ public servants into disclosing

There is a distinction to be made between ‘leaking’ and ‘whistleblowing’.

As a rule, there are procedures for handling public interest disclosures, both within each agency and via the APSC and the Ombudsman. There are also protections for whistleblowers against discrimination. It is understandable, however, that internal processes may appear insufficiently independent in some cases — indeed, they may on occasion be too protective of the agency’s reputation and that of its longstanding senior staff.

Even the APSC may appear too ‘inside the tent’ (something I wrote about in my 2009 book, The Role of Departmental Secretaries) in some instances, but I think the Ombudsman is sufficiently independent to handle the most sensitive of (non-national security) disclosures.

This is not to suggest that disclosures by public servants should always be sent to the Ombudsman, but that having that avenue available is important.

I should also mention that, in my experience, some ‘whistleblowers’ do not act in the public interest but push their own personal interests, claiming as evidence of mismanagement or misuse of taxpayers’ resources actions that merely adversely impacted themselves (such as performance management decisions).

How should genuine whistleblowers be treated if they do not follow all the due internal processes?

In principle, there is no excuse, and they should expect disciplinary action, whether for breaching the Code of Conduct or for breaking some other law.

But I would also expect the relevant authority to exercise some sensible discretion taking into account any public interest in the public disclosure and in fixing the identified inappropriate behaviour, the reasonableness of the whistleblower’s perception that the due processes were insufficiently independent, as well as the public interest in public servants upholding APS Values and using due processes.

I do not know how much discretion the courts have in applying penalties in criminal cases (I am thinking of the South Australian ATO case), but I would hope some sense of proportionality would also apply there having regard to the public interest in the disclosure as well as the illegality involved in not using the processes available.

READ MORE: New whistleblower laws for SA gov employees

Freedom of the press is critical to the functioning of a sound democracy, and its capacity to hold governments to account relies heavily on access to information.

More important than information from leaks and whistleblowers (where political and personal interests may well be disguised as public interest) are provisions such as the FOI Act and a culture in the bureaucracy of open accountability (as required by the APS Values) and regular public reporting including of program performance and policy research etc.

Governments may abide by the FOI Act, but rarely embrace its spirit, and the APS leadership too often looks to please ministers by minimising the information released consistent with the letter, not the spirit, of the law.

I firmly believe, nonetheless, that the press must be able to protect its sources when it does draw on leaks and whistleblowers.

But such protection must be subject to the journalist working for a publisher who accepts full responsibility for appropriate standards of reporting, such as via membership of the APC or an equivalent independent and public standards organisation (the ABC itself has such a process, and ACMA plays such a role for broadcasters).

Such standards include accuracy, fairness and balance, and the ethics involved in how the information is obtained. These standards imply that the publisher and the journalist concerned do not simply accept the material provided by the source.

There may just be a case for exempting national security leaks from such protections, but I would be very careful about this.

In my experience, security classifications are often set higher than really required, and there is little effort to review classification later. Nonetheless, unauthorised disclosure of highly classified material is a serious matter with implications well beyond just the loss of trust by ministers, implications the individual concerned may not fully appreciate.

Perhaps any such exemption should only be made after endorsement by the Inspector-General of Security.

This piece was first published at Policy Forum, Asia and the Pacific’s platform for public policy analysis and opinion. Read the original here.

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