Thesis introduction: protections for whistleblowers

I have 36 days until my thesis due... 36 days until freedom! In the mean time, I'm slaving over my computer to get this right. Here is a tid-bit of my intro :)

“Driven by moral considerations”; perceptions of and protections for whistleblowers

"A legal system that doesn’t distinguish between leaks to the press in the public interest and treason against the nation will not only produce unjust results, but will deprive the public of critical information that is necessary for democratic accountability". (McGeough 2013)

            The case of United States v. Pfc. Bradley E. Manning illustrates such a legal system. Bradley Manning has been heavily prosecuted for revealing proof of war crimes and military misconduct in Iraq and Afghanistan by the United States’ military and government. Manning also released over 250,000 US diplomatic cables to WikiLeaks, exposed the existence of corruption throughout global diplomacy, and placed the US in an internationally embarrassing situation. The case of Bradley Manning is significant as it demonstrates how freedom of speech and the ability of whistleblowers to disclose important information in the public interest are heavily restricted within the public sector. It also exhibits how results of technological advancements of the twenty-first century, such as WikiLeaks, have provided a platform for the more public dissemination of information, therefore extending the capacity and impact of freedom of speech.

            Whistleblowing is not the glamorous phenomenon it appears to be. Individuals who expose the crimes or misconduct of their organisations are subjected to serious retaliatory acts, along with criminal prosecution or civil litigation. This is primarily due to the lack of protection provided to whistleblowers by their governments or employers. Although whistleblowers are heralded as moral heroes by the public, they are often targeted and condemned by those against whom they have disclosed information. This significant discrepancy in regard to how whistleblowers are perceived is problematic as it deceives individuals into believing that revealing wrongdoing is ethically correct and their actions will be rewarded. However, the result is more likely to lead to termination of employment, criminal prosecution or civil action for breach of confidentiality. This division within modern societies as to whether whistleblowers such as Bradley Manning are indeed criminals or freedom fighters increases the life-changing risks that whistleblowers already face.

            This thesis argues that government legislation and organisational policies are inadequate in their protection of whistleblowers. While governments and businesses claim that their policies encourage and promote whistleblowing, the processes that follow information disclosure often fail to provide even the most basic of protections, such as the assurance of confidentiality. This thesis also argues these failures in the official whistleblowing procedures influence and reinforce the divisive perceptions of those who expose wrongdoing. Legislative protections have been adopted and implemented in all Australian states and territories, as well as at the Commonwealth level. All these policies contain various strengths and weaknesses; however, the weaknesses are the aspects that are placing whistleblowers at the greatest risk. The need to allow individuals to turn to the media with their information, as well as the need to permit members within intelligence agencies, like Bradley Manning, to speak out against misconduct is essential to the existence of a fair and transparent democracy. These protections must be provided in order for the body of legislation to adhere to its objective: to encourage and facilitate information disclosure. The state and federal legislation of Australia will be analysed and evaluated in terms of its ability to successfully protect whistleblowers, and will be compared to legislative protections in the US, which has been applied in the Manning case. By determining how an individual such as Bradley Manning would be treated and protected (or not protected) in an Australian jurisdiction, the adequacy of the legislative and procedural protections can be measured. 

(all work is my own)

Flat Out

Our fifth and final visit for this semester was to the support and activism organisation, Flat Out. Flat Out work with what they refer to as ‘criminalised’ women; women who have been to prison or have been through the criminal justice system. Flat Out assist these women with reintegration back into the community through accommodation and family reunification. As well as reacting to the effects of prison, the workers at Flat Out also aim to prevent these women from returning to prison.

Flat Out believe that women should not be incarcerated in prisons, and advocate for the complete abolition of the prison system. They believe that prison are redundant institutions, and continue to exist to ‘deal’ with the most vulnerable people in the community, such as the homeless, the drug- and alcohol-effected, and the unemployed. One of the most difficult aspects of their role is trying to convince the wider public that prisons do not work, and how criminals should be dealt with. Out of the approximately 340 women in the Dame Phyllis Frost Centre, one to two per cent pose a threat to community safety, and therefore should not be incarcerated in prison. Furthermore, in 2010-2011, 21.6 per cent of the women at the same facility were being held on remand in the maximum security section. These women have not been convicted of any crimes may often be unable to receive bail due to lack of accommodation or a dependence on illegal substances.

I found this visit to be very valuable in gaining a greater understanding of the long-term effects of the criminal justice system and what the future may hold for criminal justice.

They're awesome, check them out: http://www.flatout.org.au/

Rinehart wants a 'get out of jail' card

Gina Rinehart has pitched an idea that could only make sense in her billionaire-mind: allowing prisoners to pay their way out of jail.

Victoria has seen an incredible explosion in the imprisonment of offenders. This is expensive.So I'm gonna hit you with some stats. The Coalition government are 'cracking down on crime' by spending millions of dollars for an inquiry into the building of a new prison, as ours are reflecting those of the US; overflowing. It costs around $90,000 to keep one person incarcerated for a year. There has been a 47.4 per cent increase in Victoria's prison population from 2008 to 2012, and it's not stopping anytime soon. Due to the lack of prison space, offenders are having to spend time in policy custody, which this leads to all sorts of complications. I'm an abolitionist; prison does not work. But there are some reforms that can be made, including greater investment in crime prevention and the rehabilitation of offenders.

So Gina comes along, thinking she can help out Victoria's prison problem. She proposes that non-violent offenders can pay their way out of prison, or avoid going to prison all together, which would increase the state's revenue. For those who can't afford freedom, they can surrender their passport, or their constitutionally-enshrined right to vote.

But what about the victims. What about the people who have suffered because of what these offenders have done; where is their freedom? Granted, Gina's idea is only for non-violent offenders, but should thieves and drug traffickers be forgiven immediately if they have a bit of cash? We've already seen the problems involved with offenders deemed to be 'non-violent' and released on parole, most notably Adrian Bailey. The criminal justice system already punishes those who live in poverty, minority groups, and those with mental illnesses. Gina's idea does not satisfy any of the five principles considered when sentencing an offender: punishment, denunciation, deterrence, rehabilitation and community safety. Stick to what you know, Gina.

Victorian Association for the Care and Resettlement of Offenders

I enjoyed all the components of our visit to the Victorian Association for the Care and Resettlement of Offenders (VACRO). The section I found most interesting was the Link Out program, where male prisoners who are about to leave custody can receive assistance in a variety of areas. The rationale for this program is that by providing sufficient support for people who have been completely removed from society, they will be better equipped for life outside prison and therefore less likely to re-offend.

One area of Link Out that is particularly interesting is the requirements for eligibility. Prisoners must have “multiple and complex” needs, which may restrict the participants of the program. However, these requirements are practical as Link Out offer a range of services, whereas if a prisoner only requires the services of one area, a more specialised organisation can attend to those needs. Prisoners are either refer themselves or be referred by prison staff for the program. Corrections officers will then determine their eligibility based on their needs and they can receive pre-release support from Link Out for one, three or six months, and post-release support for four, eight or 12 months.

The services offered by Link Out include family re-unification, general health care, assistance with legal issues, help with drug and alcohol problems and support in finding housing and employment. The Link Out program is one of the many run by VACRO, and is an integral component of offender reintegration. 

IBAC

The visit to the Independent Broad-Based Anti-Corruption Commission (IBAC) is the field trip I have been looking forward to the most. I first came across IBAC in the new Protected Disclosures Act (Vic) which I have been using as part of my analysis for my thesis. For serious cases of corruption, IBAC are now the authority to investigate, taking over the Office of Police Integrity and taking the more serious cases from the Ombudsman. They also investigate protected disclosures, which are cases of whistleblowing that gain protection under the Protected Disclosures Act. This is particularly relevant to my thesis as I am arguing that although this new legislation may provide greater protections to whistleblowers than the previous law (which as Emma stated, had more ‘deflections’ than protections), it is still flawed. It does not protect whistleblowers who disclose information to the media without internal disclosure at least six months beforehand, and does not cover Members of Parliament.

Some of these flaws are also reflected in IBAC. They cannot investigate Members of Parliament, and must require a certain degree of ‘facts’ before initiating an investigation, although as Simon and Emma explained, this may be up to the Commissioner’s discretion. Although, as discussed in class, the high threshold that claims must reach in order to be investigated by IBAC may significantly restrict their caseload, it also seems that the Commissioner has a fair amount of discretion in regards to the direction that IBAC take.

The trip to IBAC allowed me to gain a greater understanding of the Protected Disclosures Act and therefore has been helpful in research for my thesis. 

Field trip 2- Sentencing Advisory Council

I found our visit to the Sentencing Advisory Council (SAC) very interesting in regard   to the research they conduct as well as in terms of career opportunities.

I think the role of the SAC is very important for investigating trends and possible reforms to sentencing practices in Victoria. One aspect I found surprising was the size of the Council; it was much smaller than I was expecting, with seven board members and seven employees. Considering that sentencing is a crucial element of the criminal justice system and one that is often controversial within the public sphere, as well as the importance of the reports they produce, I would have expected more people to be involved, although they do contract extra people. Even though it is a small team, I believe that the work they do for the Attorney-General and the government is important if we wish to move towards a fairer criminal justice system. Although the current government is taking a ‘tough on crime’ approach to policy, the SAC may still have some degree of influence in guiding the judicial determination of sentences.

Donald's role as a policy officer is an area that I would be interested in possibly pursuing. Although in such a small organisation their work load would be quite demanding, it would be rewarding to think that your work may have an impact upon government policy, and may even work to improve and increase the fairness of the criminal justice system. 

Federation of Community Legal Centres

One aspect of our visit to the Federation of Community Legal Centres that I found particularly interesting was when Michelle was explaining the current issues in Victoria in regard to parole. As discussed in the reading, inquiries have been made into instances of homicide committed by offenders released from prison on parole (McDonnell and Farrell 2012, p. 242). I learned that there are two types of parole breach: technical and criminal. A technical breach of parole may include the failure to attend a meeting with the parole officer, which can be due to many circumstances such as being unable to travel to the location, along with cases of not living at a prescribed address. Criminal breaches of parole involve the breaking of the law whilst on parole.

Suggestions have been made to define a breach of parole as a criminal offence in itself. This would have serious consequences for people who commit a technical breach, as they will have to return to prison for one month, which will have a negative impact upon their rehabilitation and integration back into the community. Technical breaches of parole such as the ones outlined above do not pose a threat to the community, and therefore returning the offender to prison is not the right solution. Alternatives could include extending their parole period, meaning they will be under supervision for a longer period of time, or adding community services to their parole conditions.

Making parole breaches a separate criminal offence is not an effective way of monitoring and enforcing the conditions of parole, and will not increase the safety of the community from offenders reaching the end of their prison sentence.