Two Australian whistleblowers are expected to face trial later this year for speaking up about government wrongdoing. Both cases are an injustice of the highest order. If either or both of these brave men go to jail for doing the right thing, for telling the truth, it will permanently cloud the Albanese government’s legacy.
These cases commenced under the Coalition government – the same government that oversaw raids on journalists (the ABC raid was linked to one of the whistleblowers), enacted draconian secrecy laws and failed to act on recommended reform to whistleblowing laws. But the prosecutions continue under the new Labor government.
Exposing unethical debt recovery
While working at the tax office, public servant Richard Boyle grew concerned about unethical debt recovery practices targeting small business owners. He spoke up internally and to the tax ombudsman, but his concerns went unheeded. As a last resort, Boyle went to the media.
His whistleblowing has since been vindicated by three separate independent inquiries, resulting in changes to the Australian Taxation Office’s debt recovery practices.
Alleged war crimes in Afghanistan
David McBride, a defence lawyer who served in Afghanistan, followed a similar path.
Concerned about serious misconduct by Australian forces, McBride blew the whistle internally, then to police, and eventually to the ABC. Subsequently, the Brereton report found credible evidence of Australian forces unlawfully killing 39 Afghan non-combatants, including innocent civilians; investigations continue into possible criminal prosecutions.
The federal public sector whistleblowing law, the Public Interest Disclosure Act, permits whistleblowing to the media in certain circumstances – both Boyle and McBride thought they were doing the right thing. But the Commonwealth Director of Public Prosecutions is pursuing them anyway and, because of the complexity of the law, both face the very real prospect of going to jail.
McBride is so far the only Australian charged in relation to Australia’s alleged war crimes in Afghanistan – not the perpetrators, but the whistleblower.
The new Labor government began on the right note by dropping the prosecution of Bernard Collaery, the lawyer who together with his client, Witness K, was alleged to have blown the whistle on Australian espionage against Timor-Leste. But the government must go further.
As parliament returns, a dark cloud hangs over the office of the attorney general, Mark Dreyfus.
He has had a strong start to the year when it comes to integrity and democratic accountability. He has convened a roundtable on press freedom for later this month, agreed to recommendations sparked by the Witness J saga that will ensure secret trials can never happen again, and started work on long-overdue whistleblower protection reforms.
All this against the backdrop of the new national anti-corruption commission, which will become operational by mid-year.
But Dreyfus has consistently refused to intervene in the cases of Boyle and McBride. He has refused calls to drop the cases – to exercise the same legal power he used to end Collaery’s trial. He has also refused calls by others to take lesser steps, such as those proposed by a coalition of international whistleblowing organisations, including to pay the whistleblowers’ legal fees, fix relevant parts of the law and ask prosecutors to publicly outline the public interest in pursuing these cases.
Without a change of heart by the attorney general, these injustices will continue.
McBride was charged in September 2018; Boyle a few months later. In the subsequent years, both men have been through hell – each has spoken of the financial and personal impact of the prosecutions, including the damage it has done to their mental health.
Boyle is currently awaiting a court decision on whether he is protected by federal whistleblowing law. If he succeeds, the case will end, unless prosecutors appeal. If Boyle loses, he will go on trial in October. McBride’s whistleblowing defence was withdrawn last year after an astonishing last-minute intervention by the government saw key evidence blocked on national security grounds. He will face trial later this year.
It is deeply frustrating that, even after he has acknowledged our whistleblower laws are flawed and difficult to navigate, Dreyfus is allowing these prosecutions to proceed.
Boyle will soon know if his Public Interest Disclosure Act shield is enough. But, because of actions taken by the government, McBride was not even permitted to rely upon his whistleblowing defence – however frail.
These prosecutions are not in the public interest, and they are undermining the otherwise positive work done by the new government, including to strengthen whistleblower protections.
The Albanese government may have inherited these injustices, but the attorney general’s inaction is perpetuating them. These cases should be dropped, immediately.
• Kieran Pender is a senior lawyer at the Human Rights Law Centre
