Tuesday, 15 August 2017 THE SENATE 94
Date Tuesday, 15 August 2017 Source Senate
Page 94 Proof Yes
Speaker Rhiannon, Sen Lee Question No.
Senator RHIANNON (New South Wales) (21:10): Mr John Wilson made a submission to the Parliamentary Joint Committee on Corporations and Financial Services inquiry into whistleblower protections in the corporate, public and not-for-profit sectors. That submission was not accepted and, as far as I know, Mr Wilson didn’t receive any explanation for that. This is despite the fact that the terms of reference to the inquiry included:
… 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; …
I’m delivering this speech tonight to put some of his concerns on the record. I do note that Tanya Plibersek, the member for Sydney, also raised this matter on 28 March 2007.
Mr Wilson’s submission argues that ASIO poses a distinct threat to whistleblowers. There is solid evidence for it, and any recommendations by the committee that do not address this threat will leave Australian whistleblowers vulnerable. There is clear and compelling evidence of ASIO interference with whistleblowers in a range of cases, including John Wilson’s.
I will read excerpts from John Wilson’s submission: ‘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 protesters there. A research note I wrote and which was published by Warburg 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 oversees and not as it is mandated to do, which is to serve in the primary interests 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 the former Attorney-General Philip Ruddock in the past few years to discuss this issue, but without results.
‘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: mininganalysis.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 to keep policy makers well informed as to what intelligence agencies are actually doing. But his recommendation was never implemented and, 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 their claims independently investigated.’
‘Never before has so little been known about their 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 and reporting of their activities have been tightened, a media blackout 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 have 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 its agents habitually act outside their powers and routinely abuse them, always in secret. It is rare indeed for their conduct to be exposed.’
‘This risk posed by ASIO to whistleblowers and those associated in the leaking process threatens every Australian. The more power that 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, from 18 October, 2016, ‘Fear, censorship and retaliation: United Nations rapporteur slams Australia’s human rights record’ and to the excerpt below concerning Australia’s intelligence agency abuses of whistleblowers, as identified by a recent scathing UNHCR report 3.’
This is a quote John Wilson included in his submission:
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.
There are further extracts from John’s submission. Julian Burnside QC stated 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. No further justification is needed. 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 Eyes 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.’
Mr Wilson’s allegations have never been properly dealt with. This case amplifies the need for effective protection for whistleblowers and others associated with them; otherwise, ASIO and other intelligence agencies can take retribution.
Blocked submission to whistleblower inquiry and correspondence: https://www.dropbox.com/s/bhdj76xyid7dffa/JW%20submission%20PJCCFS%20Feb%202017%20revised%20submission%20and%20correspondence%20blog.pdf?dl=0