Published daily by the Lowy Institute

The silence of the lambs: The public service, leaks, and whistleblowing in Australia

The silence of the lambs: The public service, leaks, and whistleblowing in Australia

It is little wonder that it was an Australian, Julian Assange, who set up the world's first secrecy leaking website, WikiLeaks. And it should be equally unsurprising that the world's greatest whistleblower is a US citizen, Edward Snowden.

The terms whistleblower and leaker are mistakenly used interchangeably. The difference is both large and instructive. The whistleblower makes a public stand. The leaker remains anonymous.

That US whistleblowers have the confidence to speak out has much to do with the right to free speech, enshrined in the US constitution's first amendment. In Australia there is no such right, so leaking is often the safest way to go.

When Assange created his leakers' website in Melbourne nearly 10 years ago, it was a creation of necessity. The identity of the leaker needed to remain secret for fear of retribution and in Australia there was every reason to be fearful. The Commonwealth Crimes Act (1914), which covers the release of unauthorised federal information, can lead to a seven-year jail sentence. 

Australia has introduced new government procedures in what looks like an attempt to prevent any home-grown leakers in the public service giving up government secrets. What the government appeared to be trying to do was encourage a culture of controlled whistleblowing within the public service to prevent the information from becoming public. [fold]

A public servant can now make a formal internal complaint about wrongdoing in a department and if not satisfied take the matter to the Public Service Commissioner. The new procedures stipulate that the public servant must not be penalised for raising the complaint.

Yet these safeguards only protect public servants who lodge complaints about their colleagues' conduct. Public servants cannot make complaints about actions taken or decisions made by politicians for fear of undermining the 'essential relationship of trust' between public servants and ministers. 

And herein lies the flaw of a procedure which threatens public servants with jail for releasing information to the media. The public service whistleblowing rules are simply designed to rigidly enforce the Australian Public Service Code of Conduct. They have nothing to do with whistleblowing for the public benefit. And they reinforce the control which ministers, the executive arm of government, have on information.

Allan Behm, the highly regarded former head of the Defence Department's international policy and strategy division, speaking on a panel three weeks ago at the Lowy Institute, said leakers should be prosecuted for breaking the law. Whistleblowers, on the other hand, should simply resign on a matter of principle and say nothing publicly, creating what would presumably be a unique phenomenon, the silent whistleblower.

If Andrew Wilkie had followed Behm's advice we would have known even less than we did about the deception which sucked us into the Iraq War. When Wilkie the whistleblower (an exception in Australia, where most intelligence information is revealed through leaks) walked out of the Office of National Assessments and said that Prime Minister John Howard and Foreign Minister Alexander Downer had misled the Australian people over Iraq's weapons of mass destruction program, there was no avenue available to discover who was telling the truth. Wilkie's whistleblowing was a clarion call for changes to the way the executive dominates the control of information.

Yet in Australia and the US, the result has been not more openness, but as Pentagon Papers leaker Daniel Ellsberg feared, a huge backlash and even more attempts to control information.

The Obama Administration has prosecuted more whistleblowers and leakers than all the other US governments in history. Yet the leaks and the whistleblowing have only increased. The fact that Wilkie wasn't prosecuted probably had more to do with the government trying to sell an unpopular war than any new found tolerance.

So why do the whistleblowers and leakers do it? 

Often the reasons are related to the excesses of government or the military during times of conflict. Ellsberg exposed how the US public had been misled over Vietnam; Bradley (Chelsea) Manning was appalled by the falsehoods of the Iraq War. Even Edward Snowden's revelations related to unbridled powers conferred on the National Security Agency (NSA) in the name of the so-called War on Terror.

Ellsberg escaped prison on a legal technicality; Manning is four years into a 35 year sentence; and Snowden is in exile in Moscow — all for revealing information their governments wanted to keep from the public.

Yet senior presidential aids and parliamentarians often leak information. When a senior aide to President George W Bush, Scooter Libby, broke the law to reveal the identity of CIA agent Valerie Plame to retaliate against her husband (who had written a New York Times article denouncing the reasons for the Iraq war), his sentence was later commuted by the President. In Australia, when the present Attorney-General Senator George Brandis was in opposition, he broke the bipartisan agreement not to talk about intelligence matters, confirming a report I did for Four Corners last year. Based on information from leakers, my report revealed that stolen blueprints for the new ASIO headquarters in Canberra had been traced to a computer server in China.

It was a significant change in the policy of never discussing intelligence matters and many hoped it might lead to a greater openness. But a few weeks after the Abbott Government was elected, Senator Brandis described Edward Snowden as a traitor for revealing information about the NSA's extraordinary surveillance program. It seems that the Attorney-General's comments about ASIO's troubles had been nothing more than a political act of point scoring against the Labor Government.

The argument supporting politicians leaking sensitive material is that in the end they are answerable to the people through the ballot box. But this crude form of accountability needs refining. A robust and more timely form of accountability is called for if the abuse of power by executive government isn't to lead us all into an even worse calamity than the Iraq war. 

So the battle continues, with executive government, their public servants and the intelligence agencies on one side, and whistleblowers and leakers and the more diligent sections of the media on the other. The public is sometimes lost in the middle, unable to work out who to trust. Often until it's too late. 

You may also be interested in