Cracks in the Kessing case illustrate why secrecy is insidious THE latest disclosures about the prosecution of Allan Kessing do not prove that this whistleblower is innocent. They don't have to. They point to a procedural flaw in the handling of this case that, in the view of criminologist Paul Wilson, means there has been a miscarriage of justice. Unless the Australian Federal Police and the Commonwealth Director of Public Prosecutions can come up with an extremely good explanation, the latest disclosures indicate that the Kessing prosecution was unfair. Federal law enforcement agencies had information that could have helped the defence but they kept it to themselves. This meant Kessing's barrister, Peter Lowe, was hamstrung. He was denied critically important material that could have helped him persuade the jury there was indeed a reasonable doubt about his client's guilt. For whatever reason -- and hopefully it was ineptitude and nothing more -- the scales of justice in the Kessing case were rigged. And for that reason alone, this man's conviction cannot be allowed to stand. This flaw is by far the greatest problem that has come to light on the Kessing prosecution. When the other problems with this case are thrown into the mix it is hard to see how his conviction can still be considered safe. When Virginia Bell was a judge of the NSW Court of Criminal Appeal she found that part of the trial judge's instructions to the jury was wrong. At the time, Bell did not believe this alone outweighed the prosecution's circumstantial case. But Bell, like everyone else, was unaware of the content of the letter that has now come to light. Bell was also unaware of the real reason Kessing declined to give evidence in his own defence: he was hiding the fact that he had been responsible for an undisclosed leak to the office of Anthony Albanese. At the time Albanese was the Labor opposition's transport spokesman and the local MP of Kessing's late mother, who was being cared for by her son. Albanese is now Infrastructure Minister. There will be those who might view Kessing's involvement with Albanese as suggesting that if he did it once, he probably did it again. That line of argument misses two key points: this man's conviction appears unsafe because someone in the federal law enforcement system decided to skew the playing field. Sooner or later, the AFP and the DPP will provide some answers that will help decide where the blame lies. The second point is that Kessing deserves a pardon either way. He admits that he leaked a document to an Albanese staffer in order to save lives at Sydney airport after inept bureaucrats refused to deal with security flaws. Kessing has retained documents and phone records that prove, at the very least, that he had significant dealings with Albanese's office. There is now a very strong argument that Kessing was convicted of the wrong leak: he was convicted of leaking to The Australian, something he vehemently denies. So it looks like this man is simultaneously a victim of injustice and a real whistleblower who risked his liberty because it was the right thing to do. And that applies even though it meant breaching the self-serving secrecy laws that generations of federal politicians have used to hide maladministration. If anyone needs convincing about the insidious impact on the justice system of this fixation with secrecy, look no further than this case. It shows that federal law enforcement agencies appear to have concluded that government secrecy laws -- unlike laws against real crime -- can safely be applied selectively. Back in 2005 when the leak at the heart of this affair embarrassed the government of John Howard, there was almost no limit to the resources the Australian Federal Police devoted to finding someone to blame. Kessing, who at that stage had retired, was followed through the streets of Sydney and subjected to the sort of scrutiny that even career criminals rarely receive. But when he admits that he broke the same secrecy law by leaking to Albanese's staffer, the law enforcement agencies behave as if nothing has happened. Could it possibly be that the complexion of the government in Canberra is a relevant factor in the enforcement of the Commonwealth Crimes Act? This selective application of secrecy laws proves what many have long known: these laws are too easy to abuse and desperately need reform.