Defence abuse whistleblower seeks PID Act protection

By Stephen Easton

Wednesday February 3, 2016

Evan Donaldson
Evan Donaldson

Just before 9.30pm last night, cross-bench senator Jacqui Lambie stood up in a near-empty chamber to tell the extraordinary story of Evan Donaldson, who aims to be the first person to be protected as a legitimate public service whistleblower under the Public Interest Disclosure Act.

Earlier in the evening, her fellow cross-bencher Nick Xenophon appeared on ABC television saying the soldier had experienced “nothing short of a travesty of justice” in the Australian Defence Force. It seems Defence would prefer to file the whole thing under “defective administration” and move on but Lambie wants a Senate inquiry, the Prime Minister to meet Donaldson today, and for Defence Minister Marise Payne to resign.

“The administrative systems are so poorly managed and so poorly constructed that they can abuse those administrative processes to do you harm.”

Late last year, Donaldson rejected an offer of about $500,000 in compensation, on two grounds. First, he says it’s not enough to cover the loss of income, legal bills and other costs. Secondly, he believes it was much more than defective administration and is not satisfied his complaint has ever been properly, independently and publicly investigated.

The former SAS Trooper is preparing to test the limits of the public sector whistleblower scheme by publishing allegations of serious corruption and cover-ups by uniformed and civilian Defence staff, including his own six-year fight to redress what he says was a vindictive campaign to kick him out of the Army without justification and only the barest semblance of due process.

He has reams of documents that he hopes will sufficiently back up the claims he intends to make in an upcoming book to merit protection under the PIDA from legal ramifications for making his disclosures public.

“What we can now prove beyond any doubt is that dozens of uniformed officers and almost the same number of department officials have been involved in very blatant levels of corruption, ranging from fraudulent misstatement to forging of documents, forging of my signature, changing of dates on documents, the destruction of documents, and the list just goes on and on,” he told The Mandarin.

One of his most shocking allegations was reported by the ABC shortly before Lambie also raised it: that he was beaten and tortured during a session of resistance to interrogation (RTI) training, causing bleeding from the anus. RTI has since been replaced with a new training approach, Conduct After Capture (CAC).

“Each individual involved … did the wrong thing in their capacity, not in all instances to be malicious towards me, but just because that was the way they did things.”

Donaldson says the standard training became longer and more intense in 2006 and alleges that was because its main purpose had changed to training Defence Intelligence Organisation personnel in interrogation techniques illegal under international law.

“It occurred to me later on reflection that it was not [primarily] a training exercise for us, because you don’t receive any skills qualifications or course reports or anything like that,” he said. “The individuals from the Defence Intelligence Organisation, however, did receive course reports, so they were being assessed on what they were doing to us.”

In Donaldson’s account, he went on with his job but then months later, reported symptoms of mental illness related to the traumatic experience and requested sick leave. He says he was denied but granted leave without pay for a year, which was later rescinded unjustly, and told to either return to the fold or be treated as absent without leave.

The soldier-turned-sleuth believes he can also prove this was later linked to an attempt to falsify psychological reasons for his removal from his next deployment, following his rank being inexplicably and deliberately changed from SAS Trooper to regular Private in the ADF’s central human resources database.

Donaldson believes the unauthorised alteration of his record was a first attempt to get him out of the SAS by a decorated, much higher ranking officer, now retired, with whom he had “a history, and not a particularly good one”. He proposes this snowballed out of control as he pursued countless freedom-of-information requests to find out what happened and the superior officer tried to cover his tracks, in the years that followed.

Defence has told him it is not possible to go back and figure out who altered the personnel management key solution (PMKeyS) database, which he doubts.

Evan Donaldson at his graduation
Beret parade: Evan Donaldson with his SAS graduating class and Major General Michael Jeffery in 2006

Cultural and systemic issues

The events covered in the forthcoming book are not all directly connected to each other, or to Donaldson’s personal grievances. The aim is to build a case that there are cultural and systemic problems in the Australian Defence Force.

“Some people in the ADF, if they have malicious intent against you — and it doesn’t need to be much — the administrative systems are so poorly managed and so poorly constructed that they can abuse those administrative processes to do you harm,” he said.

Rather than focus only on his own problems, he promises to detail various “stories of horrific maladministration or abuse of people” he encountered throughout his career:

“The book does name names; it does go through all the things that occurred. It implies in some circumstances that members of the public service acted corruptly. It implies in others that they simply acted inappropriately, or that their actions knowingly contributed to [wrongdoing] and that they should have done something [different] in their position.”

Donaldson says his legal team is confident that his case meets the threshold under the act for making an external disclosure. The official “information for disclosers” explains:

“To be protected by the PID Act, you must have already made an internal disclosure and either the investigation has exceeded the time limit (over 90 days or such longer time as permitted by the Commonwealth Ombudsman or IGIS) or you reasonably believe that the investigation or its outcome was inadequate. The external disclosure must not, on balance, be contrary to the public interest, and you may only disclose as much information as is reasonably necessary to identify the disclosable conduct.”

Evan’s own case

While the book is not all about Trooper Donaldson’s own case, it was the catalyst for writing it, and he does believe that when he lays out his case in “forensic detail” it reveals “the most shocking examples of cover-up and corruption” that have ever emerged from the ADF.

And even though he believes a significant number of key figures actively conspired against him, his investigations tell him it was not so much a “grand conspiracy” as the way things often go in the military.

“What occurred was that each individual involved after the initial incident of the identity change did the wrong thing in their capacity, not in all instances to be malicious towards me, but just because that was the way they did things,” said Donaldson.

A Commonwealth Ombudsman’s report eventually led to his rank being restored and the finding of defective administration, but only after his claims made it to the desk of former Defence minister David Johnston.

“Dozens of uniformed officers and almost the same number of department officials have been involved in very blatant levels of corruption.”

Donaldson says he first went through his chain of command and eventually the matter reached then Chief of the Army David Morrison. Morrison allegedly provided the first forged document and told Donaldson he had authorised his own demotion, but the soldier proved it was altered by producing the original. Both have been seen by The Mandarin.

His first external disclosure was to the Australian Federal Police, who refused to investigate, followed by investigative journalist Hedley Thomas, who put the claims to Defence and received a long response that Donaldson says is full of lies and designed to discredit him. He took eight weeks to painstakingly refute the response, and convinced his local MP Teresa Gambaro to send the whole lot to Johnston.

Since then there have been further reprisals including from the SAS Association, which told its members he had failed selection and never served in the regiment, and against his brother, who he says is also an SAS Trooper and being forced out in a similar manner.

“When you hear this for the first time without all the documentation, I can imagine what it sounds like,” Donaldson says apologetically, nearing the end of a potted version of the long and harrowing story.

But actually, when you put aside the tale’s fascinating setting in the most secretive parts of ADF operations, its cast of interesting characters and the eye-opening claims he hopes to air publicly in coming months, the core elements are fairly typical of public sector whistleblowers.

It begins with a broken working relationship between a front-line staff member and a highly respected, long-serving colleague occupying a much higher position. Next comes a complaint about victimisation, the failure of accountability mechanisms, a campaign of reprisals including attempts to smear, discredit and ostracise the whistleblower, a large organisation putting its reputation first, and a cabal of old mates closing ranks to protect each other.

The PID Act is due for a review of its first two years of operation by July 1.

Defence ‘on the record’

Chief of Army Angus Campbell has expanded on why no comment has been made in relation to Trooper Donaldson. Here is the comment in full:

I believe it is important to respond to the recent media reporting regarding Trooper Evan Donaldson.

Regrettably, some media have elected to selectively represent Defence’s position on personnel matters.

It should be noted that there are legal requirements for release of the information under the Privacy Act of 1988. Defence is prohibited from disclosing an individual’s personal information, unless;

  • Defence has the written permission of the individual,
  • there are circumstances where disclosure is authorised or required by law, or
  • disclosure meets one of the other exceptions in the Australian Privacy Principles.

A request from a media outlet for information relating to current or former members of the ADF, including their personal or service history therefore requires the individual’s written consent.

In September 2013, Trooper Donaldson provided consent for the Army to release his personal information to a media outlet. Accordingly, the Army responded to the enquiries submitted by the journalist.

In October 2014, Trooper Donaldson contacted the Army and withdrew his consent for the release of his personal information to members of the media. Trooper Donaldson has not subsequently advised the Army of any change to this position.

The Army is aware of the numerous allegations made by, and relating to, Trooper Donaldson against Defence and Defence personnel. Unless Trooper Donaldson provides consent to release his information, the Army is unable to publicly address these claims.

It is unfortunate when media reporting or public commentary does not present complete information. It is equally disappointing when Defence, including current and former members of the Australian Army, are represented as obdurate or acting with malicious intent when the ADF is simply abiding by legislative requirements (and the express wishes of the individual concerned).

I would encourage members of the media to consider how they represent the legislative requirements of the Privacy Act in their reporting. It is important for accuracy and balance to be a consideration in reporting.

Angus J Campbell, DSC, AM

Chief of the Australian Army

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