Webdiary - Founded and Inspired by Margo Kingston

Margo: Still Not Happy, John! tells the Peter Ellis whistle blowing story in 'The skull beneath the skin'. Peter has set up a website to publish the source documents and explain the need for better whistle blowing laws for public servants.  I asked him to write a piece for Webdiary, and here it is.

Elections, Parliament, the media, freedom of speech - these can all be thought of just as tools to enable citizens to exercise accountability.  Accountability has two components.  First, a target or agent (such as an executive government) has to explain their actions and the reasons behind them to seekers of accountability (such as the public).  Second, there needs to be power to impose sanctions when those actions and reasons are considered unsatisfactory.  In the absence of either of these elements, there is no accountability and no democracy. 

Without “answerability” - decision-makers explaining why they took decisions - mere elections are left as a pretty thin way of keeping governments ruling in the public’s interest.

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This note is a personal explanation of my perspective on some matters that are now already in the public domain.  A large number of documents have now been released under the Freedom of Information Act and they are well worth reading for those interested in government transparency; the most important can be found here. But some issues need clarification.

Readers of Still not Happy, John! will be familiar with elements of a case that I have now been involved in for more than two years.  In 2005 I was the head of AusAID’s $40 million per year operation in East Timor.  In that year, the Australian government cancelled and refused funding to several East Timorese NGOs because of their criticisms on maritime boundaries issues.  But it is not for me to comment on the political or aid policy aspects of the case.  For me, that aspect of the story is incidental to questions of truth in government, public service ethics and accountability.   

The initial Ministerial decision was to break an Australian government contract with the Timorese human rights NGO, Forum Tau Matan, before any payment had been made, because it was discovered that they had earlier signed two media statements critical of the Australian government over the Timor Sea maritime boundary negotiations.  There was no suggestion the NGO was misusing Australian funds, which were earmarked for human rights work in the Timorese justice sector.  In coming months, at least two other NGOs had funding (for anti-corruption and environmental education projects) refused by me on the same basis.  All this is undisputed on the public record.

After the first decision was taken, I was pressured by senior public servants to hide the basis of that and future decisions: preferably to give no reasons, but if reasons need to be given, to give false ones.  At first my manager in Canberra was on my side, agreeing that even if the basis of the decision proved controversial, “we’ve got to come clean” about why and how we were spending public money.  However, one powerful individual in the bureaucracy would not accept this and, for a while, she had her way with senior management.  This resulted in instructions to me from my AusAID managers that, if followed, would have meant outright lies in the first instance, and maintaining a secret blacklist in ongoing cases.  I stood up to the pressure and eventually won the bureaucratic struggle - after a couple of months of internal debate, we gave out full and accurate reasons with agreement from both DFAT and AusAID.

I later alleged that individuals in DFAT and AusAID subsequently engaged in illegal retaliation against me for standing up to the pressure.  My moves in mid 2005 had included a complaint to the Australian Public Service Commissioner, an internal whistleblowing action that should have left me protected by the Public Service Act.

DFAT investigated my original allegation about pressure to lie and my subsequent allegation about retaliation.  The Australian Public Service Commissioner reviewed both investigations and agreed with DFAT’s findings - that none of those I complained about had committed a wrongdoing.

By that time, I had left the Australian public service.

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It took more than two years for the case to play itself out through the formal machinery of the Australian Public Service.  For me, the final chapter has been the full or partial release of hundreds of documents in response to a variety of requests under the Freedom of Information Act over the past eighteen months.  A selection of those documents is now available and may be of interest to Webdiarists as an insight into the complexity of how government works.

It was the Australian government that formally made these documents public by releasing them to me, but I think it is important they are distributed further in a practical fashion.  The documents form a useful record, and I hope that perhaps one day some student of public sector accountability will examine them independently.  The overall case is of interest to those concerned about what information gets to the public and how.

There is no doubt that if I had not stood up for the APS Values and Code of Conduct back in 2005, a dozen or so Timorese NGOs would never have known why they were not funded by Australia and in one case had a legally binding agreement broken with no cause in the contract.  Those NGOs may complain about not receiving funding, but at least it is not a secret blacklist, and other NGOs know what needs to be done to ensure the same thing does not happen to them.   

Similarly and perhaps more importantly, Australian citizens and taxpayers know what is being done in their name and with their funds.  This applies whether they like or dislike what was done.  Some would approve of AusAID funds being used for this political leverage - “about time” (that these NGOs were defunded, and for this reason) was the reaction of at least one commentator in the media when the facts became available.  Others would object.  As a public servant who was involved in the area, I have no comment to make although I note the existence of divergent responses in the community to this sort of action, divergences that are appropriately addressed in the political sphere.   

I have merely ensured that the first element of accountability - availability of the reasons for decisions - is met.  In the end, DFAT and AusAID agreed with me on this.  After initial obfuscation, the decision to tell Forum Tau Matan the proper reason for their contract being broken was taken in Canberra at the highest levels.   

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Perhaps most uniquely, the papers on the website document a specific and actual case of a whistle blowing case internal to the Australian Public Service.  In exempting from release many of the documents that related to how the investigations were made into my complaints, the DFAT decision-maker carefully weighed the public interest in matters such as the handling of whistle blower complaints.  DFAT decided that as the minimum standards of care and best practice guidelines are publicly available, there was little case to be made for detailed knowledge about a specific matter being made available.

I disagree, and so apparently did the Australian Public Service Commission (APSC).  While documents held only by DFAT were not released, the APSC released in full all the documents it was responsible for on the matter.  Because of this, we can read the full twenty page report made by an APSC officer on reviewing my two sets of allegations.  This one detailed case study is immeasurably more useful than the ‘minimum standards of care and best practice guidelines’ on handling whistleblower complaints.  In fact, the general guidelines tell one very little.  This case study reveals what happens when they are actually applied, and the story is an illuminating one.  In an analogy to the legal system, legislation gives us only a broad outline while the precedents of courts’ interpretation in particular cases tell us everything.

Because of the various documents obtained under FOI we can know things such as the following:

    * The APSC regards it as not unreasonable for my manager to have urged me not to raise the APS Code of Conduct in discussions with a senior officer, even after I had made it clear that I thought the Code was my only substantial argument against her ‘advice’ to provide misleading reasons for breaking the Forum Tau Matan contract.

    * DFAT and the APSC implicitly endorse the view of a senior official that it is sometimes appropriate to not document the actual basis of a selection decision if it is politically sensitive, and instead to rely on other reasons that fitted the selection criteria.

    * In deciding that I had not been pressured to lie, DFAT and the APSC relied on the claim that there was ‘no one reason’ for breaking the contract with the NGO Forum Tau Matan, even after the public record had been corrected on this matter.  This would have been simply refuted by examining the official documentation of the decision which made it clear there was one reason and one reason only, but this check was apparently not done.

    * The APSC agreed with me that my internal whistleblowing complaint contributed to a key senior official’s negative view of me and her decision to not endorse my  extension of posting, but thought this element could be effectively separated out from her allegations of my poor performance.

     * In investigating my retaliation claims, DFAT interviewed only those whom I were alleging retaliated against me.  The senior staff in AusAID’s human resource area with relevant evidence in support of my allegations were not approached.  No verification of my alleged poor performance was sought.  APSC implicitly endorsed this approach.

    * No effort was taken to resolve contradictions in evidence between those whom I alleged retaliated against me (one of whom claimed the whistleblowing case was firmly “off the table” in all her discussions) and evidence I provided that the case was repeatedly cited in the key person’s complaints about my performance.  That evidence was dismissed as ‘hearsay’ when in fact it would have been simple to interview those third parties I had referred to, to clarify whether the matter was “off the table” or not.

    * No concrete measures were taken to protect me as an internal whistleblower, such as delegating human resource decision-making about me to neutral parties.

    * AusAID had only one document on its decision not to extend my posting - my own application. 

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While writing this, two newspaper articles relating court cases caught my eye.  

[NOTE: the first story related to and quoted a Canberra Times article which is the subject of legal action, and has been removed pending the outcome of that action]

The second story that caught my eye was a scathing Federal Court judgment.  It concerned advice from Department of Employment and Workplace Relations in November 2005, to other government agencies, to not grant leave or flex time to employees that planned to use it to attend a political rally.  I distinctly remember the occasion, because the advice had annoyed me to the core at the time.  Were public servants now to be compelled to justify what we did in our spare time for it to get the tick from our political masters?  I was reminded of a colleague who had been instructed by managers in AusAID to remove her anti-war sticker from her bicycle, even though her work was nothing to do with the war.  

In fact, I had always known that government agencies had no right to dictate public servants’ political activities outside of work, apart from certain obvious restrictions to avoid abuse of office or inside information.  I knew there was a gross abuse of the APS Values in giving out this politicised advice; but that only a court could correct it.  The Federal Court clearly agreed, as the Sydney Morning Herald reported on 7 September:

THE Howard Government broke its own workplace laws when it ordered public sector managers to deny workers access to leave to take part in a national protest against the new industrial relations legislation, the Federal Court has found.

The court also found that top managers in the Department of Employment and Workplace Relations, who are supposed to be impartial public servants, tried to protect the political interests of the Government.

Handing down her decision yesterday, Justice Catherine Branson also criticised the Government for violating the official "values" of the Australian Public Service Act, the first of which insists that the bureaucracy remains "apolitical".

Again, I have no comment on the actual policies of either behind these cases.  But to me, they illustrate other points that ring bells of recognition: the difficulties of self-regulation within the public service; the apparent capacity of deceit to get a long way if senior managers are prepared to keep repeating it; the dangers of the public service losing its apolitical nature; and the way that politicisation can happen from the top and the centre.  

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It is disappointing and frustrating for me to read documents such as the APSC review of my case (available on the website), which contains so many obvious flaws but is beyond further review.  But it is also a relief.  The machinery has finally reached a conclusion and the waiting is over.  And at least I know the decision maker’s reasoning - the first element of accountability.  

Different people will agree or not with my specific allegations made in 2005 and 2006 - my claim that I was pressured to lie and then that I was retaliated against because of my stance for openness.  But at least, thanks to the FOI laws and two years of my persistence, a small but reasonable minor portion of the evidence is available for anyone who cares to examine it.  There is still hope for accountability and for democracy if people are prepared to fight for access to the decision-making reasons of those with power over us; to contest them when they mislead; and to insist we are in a position to make informed decisions as citizens.