PO Box XXXX
Greenwich NSW 2065
8 June 2017
Parliamentary Joint Committee on Corporations and Financial Services
PO Box 6100
Canberra ACT 2600
By email: email@example.com
RE: Revised submission to the inquiry into whistleblower protections in the corporate, public and not-for-profit sectors
This is a formal submission to your inquiry into whistleblower protections in the corporate, public and not-for-profit sectors as per terms and references on the Parliament of Australia website at http://www.aph.gov.au. My original submission of 9 February 2017 has been revised at the suggestion of Senator Leyonhjelm after it was rejected by the committee for reasons not specified.
Terms of Reference
That the following matters be referred to the Parliamentary Joint Committee on Corporations and Financial Services for inquiry and report by 30 June 2017:
a. the development and implementation in the corporate, public and not-for-profit sectors of whistleblower protections, taking into account the substance and detail of that contained in the Registered Organisation Commission (ROC) legislation passed by the Parliament in November 2016;
b. the types of wrongdoing to which a comprehensive whistleblower protection regime for the corporate, public and not-for-profit sectors should apply;
c. the most effective ways of integrating whistleblower protection requirements for the corporate, public and not-for-profit sectors into Commonwealth law;
d. compensation arrangements in whistleblower legislation across different jurisdictions, including the bounty systems used in the United States of America;
e. measures needed to ensure effective access to justice, including legal services, for persons who make or may make disclosures and require access to protection as a whistleblower;
f. the definition of detrimental action and reprisal, and the interaction between and, if necessary, separation of criminal and civil liability;
g. the obligations on corporate, not-for-profit and public sector organisations to prepare, publish and apply procedures to support and protect persons who make or may make disclosures, and their liability if they fail to do so or fail to ensure the procedures are followed;
h. the obligations on independent regulatory and law enforcement agencies to ensure the proper protection of whistleblowers and investigation of whistleblower disclosures;
i. the circumstances in which public interest disclosures to third parties or the media should attract protection;
j. any other matters relating to the enhancement of protections and the type and availability of remedies for whistleblowers in the corporate, not-for-profit and public sectors; and
k. any related matters.
I contend that establishing effective whistleblower protections in Australia involves understanding the close role the Australian Security Intelligence Organisation (ASIO) plays in leading and co-ordinating retribution against whistleblowers and those who are presumed, or are proven to be, associated with them.
My submission seeks to:
i) provide a brief account of my experience of being either mistakenly targeted as a whistleblower by ASIO, or being targeted by them in presumed association with a whistleblower; aiding and abetting the whistleblower;
ii) provide details of the findings by UNHRC of ASIO abuse of whistleblowers in Australia; and
iii) offer suggestions for protections of whistleblowers in the context of the inquiry drawing on various matters, including the report by UNHRC.
I believe any whistleblower protections, to be effective, will require legislation that specifically excises whistleblowers from ASIO’s brief; and secondly, oversight of the agency and other Australian intelligence agencies, should be strengthened to ensure protections are observed by the agencies. Specifically, a standing royal commission into the Australian intelligence agencies with broad terms of reference that encompasses the Inspector General of Intelligence and Security (IGIS), ought to be implemented as recommended by Justice Hope – something the agencies resist.
(i) My experience
Briefly outlined below is my experience of being targeted by ASIO following commentary I provided on a sensitive US corporate matter concerning alleged human rights abuses by US mining company Freeport McMoran in West Papua, Indonesia. The fact that I may not technically be classified as a whistleblower, depending on definitions, does not preclude ASIO taking action in my case, being motivated by their presumption of my association, or belief that I acted in cahoots, with a whistleblower to receive documents and publicise confidential information.
I worked as a mining analyst for SG Warburg (now part of UBS) in New York on Wall Street in the mid 1990s and followed Freeport McMoran as part of my portfolio of company coverage. The company owns the large Grasberg copper and gold mine in West Papua and at the time was under investigation by the US State Department following allegations it was involved in the killing of indigenous protestors there. A research note I wrote and was published by Warburg (attached) touched on the killings and the next thing I knew I had the FBI (and ASIO in Australia) interfering with my life and career. I have had problems with the agencies ever since and have not been able to make any meaningful progress seeking accountability through the established democratic oversight channels – media, legal, and oversight agencies – all deeply infiltrated and blocked by ASIO.
The agencies’ surveillance of, and interference with me and my family since then has been completely intrusive and unreasonable. I have been blacklisted and intensely bullied – the result, I believe, of being labelled as acting in association with a whistleblower.
I have approached the main oversight agency for ASIO, IGIS on multiple occasions but found its treatment of my case inconsistent, weak and misleading, and its treatment towards me, evasive. Not once has IGIS offered to interview me, nor has it approached any of the witnesses I put forward. Its behaviour and response to my complaint about ASIO is consistent with that of a captive regulator – one that acts foremost to protect the reputation of the agency it oversights, and not as it is mandated to do, which is serve in the primary interest of justice to protect individual citizens unfairly targeted or abused. I have had no satisfaction corresponding with IGIS, nor in taking other steps through various official channels to resolve the matter. I have had three one hour meetings with former AG Philip Ruddock in the past few years to discuss this issue, but without results.
I have also attached a speech by my then MP Tanya Plibersek who raised my concerns in parliament and a single article by Richard Ackland in the Sydney Morning Herald (26 February 2010) “Secrecy is a denial of our rights”. Of note, Ackland’s article contained a significant error that was to ASIO’s benefit – it said the information I had published in my note on Freeport McMoran had been provided to me in secret documents that somehow I had managed to obtain – presumably through acting in association with a whistleblower. This was their assumption, and it was wrong. I never received any documents and I had never indicated otherwise. It is not clear if the error was intentional or not, though it seems unlikely to have been accidental, or whether it was subsequently introduced by an editor or someone else, but it had the impact of falsely reassuring readers that the intelligence agencies only go after someone in unusual circumstances – if you receive a trove of classified documents for example. But this is absolutely not the case. I received no documents.
I have no rights to know on what assumptions ASIO or IGIS are operating as everything is done in secret.
Finding even my appointed lawyers interfered with, the media tainted or controlled, and IGIS unreliable and unresponsive, what means do people in my situation have to protect themselves from egregious intelligence community conduct? With a sense of futility at other options, I turned to social media and started an issues focused blog: https://mininganalyst.net/.
Justice Hope recommended 30 years’ ago that there be a standing royal commission into the Australian intelligence agencies that encompasses IGIS, to keep IGIS fully accountable and keep policy makers well informed as to what the intelligence agencies are actually doing – but his recommendation was never implemented. As such, there is a large gap in the justice system. People with credible and reasonable complaints about ASIO, including whistleblowers, have no way of having those claims independently investigated. Never before has so little been known about the activities, capability and mission of our intelligence community. Never before have the penalties been so great for whistleblowers and media that reveal any information about agency activities, including historic activities. Secrecy on reporting of their activities has been tightened, a media blackout legislated on all activities current and past, and penalties increased for media violations and whistleblowers with 10 year prison terms. At the same time as the crackdown on transparency, agency budgets have greatly expanded and technological capability and power to intervene in the lives of citizens increased dramatically with ever more powerful computers, improvements in telecommunications and new secretive alliances with offshore partners, both commercial and state. The scope for abuse is huge, and it is easy for the agencies to act outside their mandate with impunity.
Ian Barker, QC a prominent Australian lawyer proclaimed his frustration with the abuses of ASIO and by corollary the lack of credible oversight, commenting:
“Any defence lawyer having anything to do with a case involving ASIO will know that its agents habitually act outside their powers and routinely abuse them, always in secret. It is rare indeed for their conduct to be exposed.”
(ii) ASIO as a threat: protection of the “status quo” is in direct conflict with whistleblower protections
Below, I outline reasons the committee members of the Parliamentary Joint Committee on Corporations and Financial Services into whistleblower protections in the corporate, public and not-for-profit sectors, and the Australian public, should be concerned that ASIO is illegitimately and secretly targeting whistleblowers and those associated in the leaking process.
This risk posed by ASIO to whistleblowers, and those associated in the leaking process, threatens every Australian. The more power ASIO has the greater that risk becomes and the more need there is for new, effective oversight methods. Any and every whistleblower in Australia faces fear and uncertainty concerning censorship and retaliation at the hands of our intelligence agencies. I draw your attention to an article from the Sydney Morning Herald (18 October 2016) “‘Fear, censorship and retaliation’: United Nations rapporteur slams Australia’s human rights record” and excerpt below concerning Australia’s intelligence agency abuses of whistleblowers, among others, as identified by a recent scathing United Nations Human Rights Council (UNHRC) report :
“Australia lacks adequate protections for human rights defenders and has created “an atmosphere of fear, censorship and retaliation” among activists, according to a United Nations special rapporteur. Michel Forst, who released an end-of-mission statement on Tuesday after a fortnight in Australia, said he was “astonished” by numerous measures heaping “enormous pressure” on public servants, whistleblowers and ordinary citizens.
I have provided details of the UNHRC report by Michael Forst (18 Oct 2016) that documents ASIO abuse of whistleblowers (UNHRC report link below). In particular I draw your attention to the section on the impact on “Freedom of expression” posed by security laws and note the “chilling effect” ASIO has on whistleblowers across the community.
Many Australians are forced to live with ASIO interference and harassment that adversely impacts our lives, family, social interactions and livelihoods through tactics that include the targeted placement of agents, or recruitment of colleagues and friends as informants and collaborators, in our place of work, and social and extended family circles. It is a tactic, among others that include intimidating surveillance and loss of privacy, used effectively to destabilise and disrupt the course of targets’ lives.
There are many cases of the intelligence agencies treating whistleblowers as threats, and those associated with whistleblowers and leaking in some capacity, evidently harmful to “relations”, “national security” or the “status quo”, and adding them to their programs to crush or control domestic dissent in Australia. There are no means to address, or even find out what issues or actions ASIO qualifies as dissent. Therefore, whistleblowers, and those closely associated with them on account of their leaks, are at risk of state retribution at the hands of ASIO because of the arbitrary and changing distinctions made by ASIO in secret about which “relationships” it protects and its reasons for doing so, and what it considers to be “national security” and the “status quo”.
Phillip Boulten SC who I spoke with and Julian Burnside QC, lawyers experienced in dealing with Australian intelligence agencies, have stated that a large range of matters in Australia, in practice, involve ASIO due to the broad interpretation the agencies apply to the term “national security”.
Julian Burnside, QC states in relation to ASIO legislation:
“National security is defined in a way which takes it way beyond what most people would understand by the term. ‘National security’ is defined to mean: ‘Australia’s defence, security, international relations or law enforcement interest’… International relations is defined to mean political, military, and economic relations with foreign governments and international organisations.”
As such, my matter, in their opinion, is one ASIO could be involved in – since it touches on US corporate interests. I could be targeted for publishing information provided by a whistleblower. No further justification is needed. Julian Burnside’s definition makes clear, and which accords with my personal experience, the intelligence agencies of the Five-Eye’s alliance closely protect American business interests, like Freeport McMoran’s in West Papua, even where those interests involve highly contentious operating practices which would never be tolerated in a “first world” country or by a free people.
In 2014, the then Australian Prime Minister, Tony Abbott, who has direct responsibility for IGIS, and therefore the conduct of the Australian intelligence community, said that through the intelligence agencies “Australia should do what we can to protect our citizens, to help our friends and to advance our values.” Helping friends and advancing values goes way beyond what most people would understand and accept “national security” to mean – yet here is probably the clearest explanation of what our agencies in practice actually do. There is no elaboration regards whose friends and which individuals are being helped and whether these are domestic or foreign, corporate or political; no mention of whose values – nor how they prioritise trade-offs between social, environmental, political, religious, economic and other values.
ASIO states its primary objective is protecting “national security”, but it brings under that definition whomever it wants to pursue. Whistleblowers, in particular, should be alarmed.
It seems the agencies working definition of whistleblower is very broad, defined to include opinion leaders that speak “off-message”, or people that expose corruption or release details of human rights, environmental, financial or social abuses of corporations and other entities: these people are being silenced and punished unjustly by the intelligence agencies. If the definition of “whistleblower” is limited only to employees that leak documents from their employers, then others appear to be getting caught up in a whistleblowing dragnet, where the agencies endeavour to identify and punish not only the leaker, but others involved in the act of making that information widely available – those that aid and abet the whistleblower.
Dirty Secrets: Our ASIO files : a book edited by Meredith Burgmann contains details of individuals recalling the contents of their ASIO files, released to the National Archives of Australia (NAA) after the then mandatory 30 year holding period. Burgmann is an academic and former parliamentarian; her book helps the public understand the culture of ASIO, and its methods of twisting, extending or ignoring its stated targeting priorities to pursue anyone who influences civil society or government policy. The files reveal a number of common elements, all denied by ASIO, the Attorney General and IGIS: ASIO systematically targets people who are not a threat to “national security” as ordinarily understood, or a threat to other objectives publicly prioritised by ASIO. Many of ASIO’s targets are simply good communicators, or “engineers of social progress” including women’s liberation activists, anti Vietnam War, anti-apartheid, civil rights, pro-abortion, aboriginal land rights, prison reform and gay rights; some of the many causes in civil society which enjoyed broad public support but which were not backed by government policy of the day.
The risk ASIO poses to whistleblowers, and people associated with whistleblowers in the process of gathering and disseminating confidential information, is further seen by reference to the National Archives of Australia (NAA) website. This contains the content of ASIO targets’ files that are publicly available, the nature of which, building on Burgmann’s book, gives a clear picture of what in practice “national security” means with the NAA providing specific civil society examples of the type of reasons that ASIO uses to justify surveillance and maintain files on Australians. The reasons are chillingly trivial in cases and include: “…membership or involvement in political association, participation in demonstrations, association with other persons under surveillance.” Members of literary groups and writers are also mentioned. “The National Archives in Canberra holds ASIO files on several Australian literary groups and a large number of Australian writers.”
The picture that emerges from the accounts in Burgmann’s book, the NAA, and my own experience, is the intelligence agencies are in the service of protecting and maintaining the “status quo” – which whistleblowers often threaten. As a result, a broad cross-section of Australians are vulnerable to ASIO interference.
(iii) Suggested enhancement of protections for whistleblowers
To offer effective protection, legislation needs to be amended relating to all Australian intelligence agencies, and in particular ASIO, to specifically provide protection for whistleblowers, and others associated with them that ASIO or other of our intelligence agencies may target in retribution. Further, a standing royal commission into the Australian intelligence agencies with broad terms of reference and that encompasses IGIS, ought to be implemented as recommended by Justice Hope in the interest of protecting the Australian public, and in particular, Australian whistleblowers, and those with whom ASIO associates with them.
In summary, my submission contends that the Australian intelligence community, in particular ASIO, targets whistleblowers and people associated with them in the process of whistleblowing (both my experience and documented by UNHRC); that activities of our intelligence agencies should be curtailed in dealing with whistleblower matters and a standing royal commission into the intelligence agencies should be implemented.
I look forward to your response.
Mr. John Wilson
From: Hodder, Patrick (SEN) [mailto:xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx]
Sent: Tuesday, 20 June 2017 11:55 AM
To: ‘John Wilson’
Cc: Committee, Corporations (SEN); Bell, Jon (SEN)
Subject: RE: Revised submission to the inquiry into whistleblower protections in the corporate, public and not-for-profit sectors
PARLIAMENTARY JOINT COMMITTEE ON CORPORATIONS AND FINANCIAL SERVICES
Mr John Wilson
Dear Mr Wilson,
Whistleblower protections in the corporate, public and not-for-profit sectors
At its last private meeting, the Parliamentary Joint Committee on Corporations and Financial Services considered your revised submission of 8 June 2017. The Committee decided to accept your material as correspondence.
As the Committee does not propose to publish your correspondence, please be aware that this means that publication of the documents you provided is not protected by parliamentary privilege and you should be mindful that any publication of your documents is therefore subject to the usual laws (for example the law regarding defamation).
As previously advised, committees generally choose to publish material for the purposes of their inquiry. Further, committees deliberate in private and secretariats are not at liberty to divulge those deliberations. I also advise that while committees consider material received as correspondence, correspondence is not itemised in a committee report.
I further advise that the committee is not able to investigate or seek to resolve individual cases, and will not engage in any further reconsideration of its decisions regarding any of your material.
PO BOX 6100, PARLIAMENT HOUSE, CANBERRA, ACT, 2600
Tel: (02) 6277 3583 Fax: (02) 6277 5719 Email: firstname.lastname@example.org
From: John Wilson [mailto:xxxxxxxxxxxxxxxxx] Sent: Wednesday, 21 June 2017 10:33 AM To: ‘Hodder, Patrick (SEN)’ Subject: RE: Revised submission to the inquiry into whistleblower protections in the corporate, public and not-for-profit sectors
Thanks for your email dated 20 June 2017.
It is disappointing that the committee has refused to accept my initial submission and revised submission, each of which is compliant with the inquiry’s terms of reference. Each submission makes relevant suggestions to improve whistleblower protections in Australia, and provides details of the public UNHRC report concerning ASIO abuse of Australian whistleblowers. The committee has provided no reason for rejecting either of my submissions and its lack of explanation is perplexing. However, in refusing to release my submission publicly, the committee is denying information to the public for debate, and in doing so, it is distorting and weakening the quality of that debate in underplaying the threat posed by ASIO to whistleblowers. I can only assume that the Chairman, or certain other members of the committee consider the content unacceptable on account that it is critical of ASIO conduct.
I note that none of the committee members, including the chairman Mr. Steve Irons, MP, nor any of the members’ staff whose advice members may depend on, has any requirement to disclose any association they may have with ASIO, nor whether they receive any financial payments or other incentives from ASIO. Therefore each member is potentially conflicted in the way they represent their constituents on this committee and likewise, may be conflicted in their reasons for rejecting my submission.
By way of clarification, I had no expectation the committee would investigate my claims in relation to my case history as implied by your email, as this was not necessarily part of its mandate. However, I note the committee has made public a number of whistleblower submissions, none of which was critical of ASIO, and presumably it will investigate none of their claims either.
PDF of John Wilson’s blocked submission to whistleblower inquiry and related correspondence: https://www.dropbox.com/s/bhdj76xyid7dffa/JW%20submission%20PJCCFS%20Feb%202017%20revised%20submission%20and%20correspondence%20blog.pdf?dl=0