Whistleblowing and other new crimes


Whistleblower graphic Prime Minister Tony Abbott has been known to extol 'Western civilisation' and the democratic traditions that underpin Australia. Without question, things like the Westminster system and the rule of law are venerable British colonial legacies.

They form the architecture of a functional society, along with separation of powers, due process and transparency. We need only consider the alternatives to sense the disorder held in check. Yet these principles have become brittle under the Abbott government in its first term.

Over the past fortnight, magnified in part by the anniversary of the Magna Carta, there has been a focus on proposed or enacted diminutions. Ministerial revocation of citizenship even when it could render an Australian stateless is still on the table. Government MPs Philip Ruddock and Concetta Fierravanti-Wells are undertaking 'consultations' on sole citizens, with the Prime Minister saying on Tuesday, ' I expect that in the months to come the government will have further legislation in this area'.

Meanwhile, ministerial discretion is being reframed in terms of automatic 'revocation by conduct', wherein the minister is said to merely 'notify' rather than adjudicate the status of an Australian without a court conviction. The bill introduced this week includes ministerial powers to retrospectively deport someone already in jail for a terrorism conviction.

Both sides of federal government assume that the public shares their priorities around immigration and national security with the same intensity, which may well be true. But it would be an awful indictment on Australians if they take such priorities to supersede the very things that insulate them from arbitrary state decisions and political fetishes.  

For instance, citizenship or nationality is a fundamental human right because certain freedoms and rights spring from it: freedom of movement and association, the right to vote and own property, and freedom from discrimination. There is an entire international legal framework against arbitrary deprivation of nationality, which recognises that a stateless person is vulnerable to human rights violations.  

Ministerial discretion over citizenship therefore can't be a replacement for court processes and penalties which already deal with those instances in which a citizen has broken the law or whom authorities deem to be dangerous. It is executive overreach, jeopardises due process and not how democracies work.  

Such distortions have already found expression in law. From July 1st workers involved in immigration detention, including doctors and teachers, are subject to two years imprisonment for speaking publicly about what they witness. In other words, whistleblowing has been penalised, and statutory codes of conduct such as reporting of abuse and neglect criminalised – but only in the context of immigration detention.

These moves have not come piecemeal but seem to be a concerted effort to concentrate power and dilute its scrutiny. Last month, the Australian Border Force – which did not yet exist then – was granted access to data whose retention had just been legislated. There is a bill to shield the use of force in immigration detention from legal challenge or independent review. There are ongoing attempts to abolish the Office of the Australian Information Commissioner, which monitors the Freedom of Information (FOI) system. Last year, disclosing information regarding 'special intelligence operations' could land an individual in jail for 10 years, which drew grave concern from journalists.

There is a reason why whistle-blower protection, mandatory reporting and independent or statutory reviews have become a feature of our legal landscape. They come from harrowing experience, in which systemic failures left people and institutions damaged. Some of these failures were perpetrated or sanctioned by governments. Without instruments that ensure transparency, authorities cannot be held accountable.

We have therefore put certain things in place because experience shows us that it is not in our interest for governments to concentrate and expand power, or keep from us matters of moral and ethical significance. If we had any sophistication as a democracy, we would not enable politicians to do such things. Yet we have become mere witnesses to a government that is acting above the law, or at least its spirit, and is also purposely tinkering with it in ways that are alarming.

Much has been made of the rule of law in recent weeks, and it is impossible not to see it as being slowly subverted. The imperative that the law applies generally, equally and with certainty, that it protects fundamental rights, and that it limits discretionary powers of government officials – such characteristics have frayed through policy and discourse.

It turns out that the rule of law is meaningless where governments can arbitrarily change or make laws with little resistance.  

Fatima Measham

Fatima Measham is a Eureka Street consulting editor. She tweets @foomeister .

Whistleblower image by Shutterstock.

Topic tags: Fatima Measham, democracy, law, democracy, national security, Tony Abbott



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Existing comments

Hello this is Gayle Davies Vote for Labor in the next election and republican party in the US. Also I have asked Her Majesty the Queen if she will ask Rupert Murdoch to stop accentuating (through tech) the traffic noises near our north sydney australia apartment. Rupert Murdoch runs the liberal party of Australia.
Gayle Davies | 25 June 2015

Fatima Measham is spot on. I have personal experiece of disclosing illegal activity by officers of Qld Public Service to CMC (now CCC) in 2012. I then had my employment of 30+ years in Qld Public Service terminated 10 months later. After over 2 years & considerable personal legal exenses, I am hopeful of a reversal of my employment termination. The LNP state government turned a blind eye to this "whistle blowing", despite the detailed personal knowledge of this reported illegal activity by the former LNP Minister of this department. In a similar way. the Abbott government has set out to stop those medical & allied health officers who try to notify the public of refugee abuse, and so protect these refugees' human rights. The proposed LNP anti-terrorism Bill will strip citizenships from alleged terrorists. DIBP Minister Dutton will be given the unfettered power to remove Australian citizenship without any prior legal redress. This is yet another attack on the democratic legal rights of Australian citizens by our "practising" RC PM, Mr Tony Abbott. Mr Abbott has set out to arbitarily remove human rights from Australian citizens, as he has already done to the human rights of refugees.
John Cronin, Toowoomba Q | 26 June 2015

I disagree with Fatima on only one point: the rule of law is not being slowly subverted, it is rapidly and systematically being subverted! A prime Minister who blandly declares we must "do what it takes" - "by hook or by crook" is clearly blind to the anomaly he is creating: to "defend us" against those who "hate our values" he is doing his utmost to undermine those very values. Who needs ISIS to do this when our own government is determined to do it for them. Is this really aiding and abetting the enemy?
Dennis Green | 26 June 2015

At times llke this I wonder if I might end my life in gaol. I'm quiet and law-abiding, but I have nothing but contempt for the so-called leaders we have now. I can imagine myself defying one of these laws and getting myself into serious trouble. For example, if some future form I have to fill in requires me to call myself a partner instead of a husband, I won't do it. Scenarios like that keep me awake at night sometimes.
Gavan | 26 June 2015

i thnk this present government are abhorrent individuals so far from Christian. Ideals and they keep calling Abbott a devout Catholic. Yes a pigs fly. Sorry not impressed
Irena | 27 June 2015

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John Kalantary | 27 June 2015

I agree Fatima. Well said.
Frank S | 29 June 2015


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