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Whistleblowers beware: AFP reveals investigations

It’s a sensitive number that the Australian Federal Police had until now kept hidden: how many Commonwealth public servants have been investigated for unauthorised release of information.

The magic number is 13 referrals over 18 months, and comes as journalists, lawyers and various other groups seek professional exemptions to the government’s metadata retention plans.

The admission came in the form of a clarification from AFP Commissioner Andrew Colvin, that no, they don’t really need to target journalists:

“Commissioner Colvin said that over the past 18 months, the AFP has received 13 referrals relating to the alleged unauthorised disclosure of Commonwealth information in breach of section 70 of the Crimes Act.

“This offence specifically criminalises the activity of Commonwealth officials who have released Commonwealth information in contravention of their obligations, not journalists.”

Whether intended or not, Colvin revealed that it was sufficient, in all but a “rare” number of cases, to identify the public official without journalists’ metadata:

“In the overwhelming majority of these investigations, no need was identified to conduct a metadata telecommunications inquiry on a journalist. AFP requests for accessing a journalist’s metadata are rare.”

Other sectors have called for the laws to carve out exemptions for various professionals reasons, such as the Law Institute of Victoria concern about lawyer-client privileged communication. Journalists, media outlets and their union, the Media Entertainment and Arts Alliance, have also been seeking an exemption to the data retention proposals from the government. Their reaction on social media focused on reading between the lines, it wasn’t they who would be targeted but their sources:

Public officials have no expectation of privacy of their official work, and indeed are expected to create records as a matter of course. But the question of their away-from-work activities is murky, as employment law specialist John Wilson wrote in The Mandarin, the creep of agency control over its employees in recent years has pushed forward with a series of Fair Work Commission findings. Wilson says:

“The exact dividing line, as it so often is in public sector employment matters, remains somewhat murky. Because the law is delicately trying to balance legitimate public interests with the need to protect APS employees from unjustified intrusions into their private lives, particular factual situations will often heavily influence the side on which justice falls.”

Last month the UK government revealed its local and metropolitan police forces made more than 600 applications in the past three years to reveal public officials who released information without authorisation.

The AFP has until now declined to reveal the number of requests, telling Fairfax to do so would undermine the integrity of investigations:

“In order to preserve the balance established by the Telecommunications (Interception and Access) Act 1979 between accountability, the integrity of investigations and the privacy of individuals, the AFP is unable to disclose specific information in relation to the interception of or access to telecommunications.”

Federal agencies, including AFP, Attorney General’s Department and the Australian Security Intelligence Organisation, as well as state police, corruption and investigative bodies made strong submissions for longer retention of telecommunications data to the ongoing parliamentary inquiry. The “minimum” length they could agree with was two years, taking into account public concerns about privacy.

Whistleblowing legally

The public interest disclosure scheme for public servants to legally reveal wrongdoing they witness was implemented early last year. The Commonwealth Ombudsman Colin Neave has indicated agencies are committed to its adoption and have been responsive to suggestions for improvement. It isn’t a get out of jail card for public servants though, as there are rules, not just on the agency that receives the disclosure, but also the whistleblower.

John Wilson, who specialises in public sector employment law, says the immunity protections will trigger if the disclosure is made in good faith and through the right channels. Wilson says it’s a “partial cure” for the risks whistleblowers take on:

“To illustrate with a hypothetical, say, for example, an employee of the Australian Tax Office became aware that a contractor was deliberately taking far longer than necessary to complete a certain task, and this was condoned by a manager for some ulterior motive. If the employee had reasonable grounds for that belief and proceeded to make a disclosure to their immediate supervisor, then they would be protected by the legislation even if an investigation concluded there was insufficient evidence to support the allegations. If the manager later attempted to dismiss the employee to ‘get even’, the employee could seek an injunction or compensation, and even seek to refer the matter for prosecution.

“However, if the employee was to go straight to the media with their allegation, they would likely receive no protection. Even in the case of emergency disclosures where there is a risk of substantial and imminent danger, an external disclosure is only protected to the extent that the information disclosed “is no greater than is necessary to alert the recipient” to that danger.”

The PID scheme has earned Australia a high grade among the G20, according to report released late last year by researchers from Blueprint for Free Speech, the University of Melbourne, Griffith University and Transparency International Australia.

 

Author Bio

Harley Dennett

Harley Dennett is editor at The Mandarin based in Canberra. He's held communications roles in the New South Wales public sector and Defence, and been a staff reporter for newspapers in Sydney and Washington DC.