You can bet FOI wouldn't deliver the Nauru Files

The freedom of information system wouldn't produce anything like the Nauru Files
published by Guardian Australia today following a leak of more than 2000 incident reports from the Immigration detention centre. 

After all, when Guardian Australia had a crack at formally obtaining the Detention Logs a couple of years ago, 'smart lawyering' not transparency and accountability prevailed. And that was before the issue of exemptions even arose.

Hat tip this time to Paul Farrell, Nick Evershed and Helen Davidson and the unknown person or persons risking up to two years imprisonment under Section 42 of the Australian Border Force Act 2015 for secreting this cache out of the system. 

There is no defence to the charge of disclosure of protected information (any information obtained in the performance of duties) by an entrusted person (employee,contractor or consultant) regardless of the significance or insignificance of the information.

The reports published "set out as never before the assaults, sexual abuse, self-harm attempts, child abuse and living conditions endured by asylum seekers held by the Australian government, painting a picture of routine dysfunction and cruelty."

There is plenty of shock, outrage and sense of shame voiced on the Twitter feed #naurufiles and no wonder.

 David Marr comments on 'official secrecy' and its political purpose:

Parking refugees on distant islands worked last time to keep their predicament hidden. But secrets are so much harder to keep these days than they were in John Howard’s time...Canberra’s passion for secrecy has always been contradictory. Surely the more the world knows of the fate of refugees in these island camps, the more the deterrent power of holding them there? But secrecy has its purpose. It helps hold the political consensus together. The truth is terrible. The regime of official secrecy allows us – even when so much is known – not to face the facts. It’s a service for the squeamish.

Guardian Australia has commendably self censored personal information from the published reports:

The Nauru files contain a large amount of personal information about asylum seekers and detention centre staff. The Guardian has adopted a stringent approach to redacting the documents, including several layers of editorial and technical checks of the data. The general approach we have taken is to remove:
• The names of all asylum seekers and staff
• Personal identification numbers of asylum seekers (their six-digit “boat arrival numbers”)
• Ages of the asylum seekers named in reports
• Signatures of detention staff
• Nationalities with small population groups
• Residential tent numbers
• In some cases further identifying information has been removed 

Mr Grech makes a full recovery and draws on expertise

Godwin Grech's observations today on good public administration, "competent apolitical public service professionals" and the importance of "creating a more transparent and accountable public sector" make no reference to his own form in the field. And he seems to be in better health these days. The last time I heard anything of Mr Grech was a media release from the Commonwealth Director of Public Prosecutions dated 19 November 2010, and reproduced below (emphasis added) announcing a decision not to proceed to prosecution.

(Readers will recall that others such as Allan Kessing, an outstanding public interested former public servant did not attract the exercise of this discretion not to prosecute. Nothing has been heard for years about his application for a pardon, under consideration since October 2009, and presumably still somewhere in the in-tray of Attorney General Roxon.)

I'm no fan of s 70 of the Commonwealth Crimes Act (neither is the Australian Law Reform Commission which recommended repeal in the current form in 2009)  but on any scale of seriousness the Grech creation of false email, subsequent false testimony to a parliamentary committee, and disclosures to the opposition-without a shred of public interest- was way up there.

WikiLeaks FAQs

Two more useful bits on WikiLeaks related issues as seen from here: this set of FAQs published by OpenThe Government.org, and POGO"s Fact Sheet on the Federal whistleblower legislation as at December, now shrouded in uncertainty/gloom as a result of recent developments

Australians in Washington

Well I'm here, but that's neither here nor there. So is Pat Farmer the ultra-marathon runner and former federal parliamentarian who has received a little coverage as he charges around Washington, acclimatising for his run from pole to pole.

But the big Australian name in town is Julian Assange who featured on CBS Sixty Minutes on Sunday, and the same day was the subject of a long article by Bill Keller, the paper's Executive Editor, in The New York Times Magazine. They provided sharp contrasts.

Whistleblowing and leaks

Someone at Fairfax seems to have had a better thought about the headline to a report on the investigation of Commonwealth government leaks, after the SMH paper edition conflated whistleblowers and leaks thus: "War on whistleblowers: Labor uses a bigger stick to keep its secrets safe."( Well no, it is online as well.) The story on-line, taken from The Age and modified in other respects is headed "Rudd witch-hunts cost police, money."

An interesting report that points out that leaks referred for investigation "overwhelmingly concerned cases of political embarrassment rather than security breaches." An unnamed police source (in the SMH) and unnamed former senior Federal police source (online) said " both Labor and Liberal and everyone in between gets the shits when their policies are undermined or their big announcements appear on the front page of the newspapers 24 hours before they announce it.''

The media love leaks, and love even more details of futile attempts to find leakers.

But the SMH headline suggests all leakers are whistleblowers, people by definition who seek to have wrongdoing addressed and need and deserve protection against retribution. They aren't. While many leaks cause no real harm no organisation, government or otherwise, can operate effectively where any employee can do what they wish with information that comes their way. Sensible laws and policies are needed. We don't have this right at present.

What to make of leak week?

There are currently over 300 media reports on Google Search about leaks and alleged leakers arising from events of the past week in Canberra and the mystery surrounding Treasury official Godwin Grech.

However The Sydney Morning Herald editorial is right to express a note of concern if the investigation of a forged email "signalled a new crackdown on information flows from the public service and a return to the climate of intimidation enforced under the Howard government. A neutral bureaucracy, biased towards openness, and questioning Senate committees are vital parts of our democracy."

Because forged documents and leaks against the government for political reasons designed to assist the Opposition are one thing, greater transparency about the workings of government are another. This from a post here in June 2008 following controversy about the leak of advice the Government received on Fuelwatch:

"Every organisation must have rules about who can disclose what about its internal workings , but given its role and the nature of the information it holds, special rules should apply to access to government information. We should be entitled to know through designated procedures(not leaks at the whim of someone in the system) what government knows unless some harm to essential public interests would result. Governments need thinking space to weigh advice and make a decision, then choose to act on the advice of this expert or that, or not at all, and to explain itself. However a government serious about transparency should not be trying to limit what we know about the views of its experts by locking the papers up for 30 years when they will be released into open access. Disclosure of the assessments of government advisers, no matter how this occurs, should not endanger the prospect of frank and candid advice in future. The Government should be demanding this sort of advice from its public servants on an ongoing basis. Leakers are not necessarily whistleblowers who deserve sympathy or protection but not all leaks are matters of great national signifigance. Currently unauthorised disclosure of any fact or knowledge acquired in the course of duties by a federal government official is a one size fits all criminal offence under the Crimes Act, for which there is no public interest or other defence. Whistleblowers who act in accordance with established rules to bring to the attention of proper authorities, maladministration, corrupt conduct or the misuse of public money deserve special protection."

The Government needs to keep moving on greater transparency, whistleblower protection, and when finalised, what emerges from the Australian Law Reform Commission examination of secrecy provisions in Commonwealth laws, particularly the draconian Section 70 of the Crimes Act.