Tuesday, June 21, 2011

Push to pardon Australian whistleblower

RANK and file members of the Labor Party have started moves within the party's branch structure aimed at encouraging the Gillard government to pardon convicted whistleblower Allan Kessing.

The push within the ALP to have the government pardon Mr Kessing came to light on May 13 at a party meeting attended by federal School Education Minister Peter Garrett and NSW senator-elect Matt Thistlethwaite.

The federal electoral council for Mr Garrett's Sydney seat of Kingsford Smith deferred consideration of the move in order to give delegates time to research the issues.

The government has been considering whether to pardon Mr Kessing since October 1, 2009, when independent senator Nick Xenophon wrote to Home Affairs Minister Brendan O'Connor on Mr Kessing's behalf.

The push for a pardon inside Labor's branches emerged after disclosures in March triggered concern that the whistleblower might have been denied a fair trial.

Labor's Hillsdale-Pagewood branch has already unanimously called for the Gillard government to "urgently overturn the 2007 wrongful conviction of former Customs officer Allan Kessing".

That branch's resolution, which will be resubmitted to the next meeting of the Kingsford Smith federal electoral council, makes detailed references to disclosures in The Australian on March 25 about apparent flaws in the way the Australian Federal Police investigated the Kessing affair.

The resolution calls on Attorney-General Robert McClelland and Mr O'Connor "to immediately recommend and have approved a full pardon with full compensation (including all legal costs incurred by Mr Kessing) to the Federal Executive Council of the Commonwealth and advise Mr Kessing of that in person as soon as is possible".

Mr Kessing was convicted in the NSW District Court of leaking long-ignored Customs reports to this newspaper that revealed criminality and lax security at Sydney Airport.

A letter held by the AFP, which has been obtained by Mr Kessing, shows the AFP withheld evidence in that letter that Mr Kessing's barrister Peter Lowe believes could have supported the defence and undermined the prosecution case. When asked about the affair at the weekend, Mr McClelland said he was unaware of the details of what had happened.

But he told the Australian Agenda program on Sky News that "any litigation on behalf of the commonwealth needs to be undertaken in accordance with the model litigant principle, and that is an obligation to disclose to all parties all relevant facts that are in possession".

"The basic principle is that all agencies need to be aware, certainly not only the government lawyers, but all agencies need to be aware of that model litigant principle that applies across the commonwealth," Mr McClelland said.

The AFP has declined to explain why it failed to disclose the material. It has also declined to explain why it failed to interview a potential defence witness, journalist Norm Lipson, who was named in a letter given to the AFP by Customs' internal affairs unit.

The AFP has also declined to say whether it reached an agreement with Customs to ensure that another potential defence witness, Customs officer Zoe Ayliffe, would remain silent about whether she had been interviewed by the AFP.

A conversation between Lipson and Ms Ayliffe is outlined in the same letter from the Customs internal affairs unit that is still on file with the AFP.

The move within Labor's rank and file to support Mr Kessing is in line with Labor's 2007 election policy. The policy says federal law provides inadequate protection for public servants who make unauthorised disclosures in the public interest that reveal improper practices. "The case of Allan Kessing -- who was prosecuted for disclosing a report detailing security failings at Sydney Airport -- is a case in point," Labor's policy says. "The actions of Mr Kessing ultimately made Australia safer, yet he was prosecuted."

Mr Kessing has consistently denied being responsible for the leak to The Australian. But he has admitted he leaked the same material to a staff member employed by Labor's Anthony Albanese, who is now the Transport and Infrastructure Minister.

Original report here

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