At its simplest, press freedom is about truth: the ability to report and publish the truth, without fear or favour. In that critical endeavour, whistleblowers – truth-tellers – play an essential role.
It is a dark stain on our democracy that Australia still has several public interest whistleblowers on trial. Richard Boyle, David McBride and Bernard Collaery all face potential jail time for speaking up about serious wrongdoing. It is an indictment on our legal and political system that they continue to be prosecuted for holding power to account.
Collaery, a distinguished Canberra lawyer and former Australian Capital Territory (ACT) attorney general, is alleged to have spoken to the media about Australia’s treatment of our neighbour, Timor-Leste. It is alleged that Australia spied on Timor-Leste to gain an upper hand in oil and gas negotiations in the early 2000s, for commercial gain. Collaery has pleaded not guilty; his former client, intelligence officer Witness K, pleaded guilty to a lesser offence last year, and was given a suspended sentence.
McBride, a former defence lawyer, blew the whistle on alleged war crimes committed by Australian forces in Afghanistan. Boyle, meanwhile, spoke up about unethical practices within the Australian Taxation Office. All three blew the whistle to the national broadcaster, the ABC.
The complexity and opacity surrounding these three cases is nothing short of staggering, particularly given they have all been vindicated. No one seriously denies that Australia bugged Timor-Leste’s cabinet office – the renegotiation of bilateral agreements following international legal action was a tacit admission. The Brereton Report provided a damning forensic assessment of the actions of Australian forces in Afghanistan; criminal investigations are ongoing. Several independent inquiries, including by the Senate, have condemned the aggressive debt recovery practices exposed by Boyle.
Yet despite the accountability and change their whistleblowing has helped achieve, all three men continue to face criminal charges. On this of all days, it is worth reflecting on their plight – and the government’s responsibility.
Whistleblowers make Australia a better place. They hold governments who commit wrongdoing to account. They shine light on the darkest of acts. Prosecuting whistleblowers – especially those who exposed government wrongdoing – is undemocratic. It has a chilling effect. There is no public interest in prosecuting these truth-tellers. They should be protected, not punished.
Fortunately, there is a simple solution.
The attorney general has the power, at both common law and under the Judiciary Act, to drop a prosecution at any time. It is an exceptional power, rarely used. But exceptional powers exist for exceptional circumstances. Given the highly political nature of these prosecutions – the case against Collaery was expressly approved by Christian Porter while he was attorney general – political intervention is justified. Ultimately, the current attorney general is accountable for these unjust prosecutions.
Whoever wins government at the May election must commit to immediately dropping the prosecutions of Collaery, McBride and Boyle, all of which have been dragging on for years.
The Collaery case is particularly Kafka-esque, with the government ceaseless in its quest for secrecy in which to shroud the trial. Most recently, the attorney general appealed to the high court to keep secret a judgment that refused a secret trial (the high court deferred the matter).
At court hearings later this year, McBride and Boyle will argue that they are protected from prosecution by federal whistleblowing law, the Public Interest Disclosure Act (PID). That law provides that whistleblowers can go public in certain circumstances. Boyle and McBride thought they were following the rules – speaking up internally first, then to oversight bodies, and only then to the media as a last resort.
If they are unsuccessful, they will go on trial. But even a PID Act victory would be pyrrhic – both have endured significant emotional trauma, just for speaking up. These whistleblowers have suffered financially and psychologically for doing the right thing. They have already paid the price.
This reinforces the urgent need for law reform. The PID Act was independently reviewed in 2016, with significant changes recommended. Six years later, and 18 months since the government promised to accept most of the review’s recommendations, the law remains untouched. Both major parties must also commit to reform the PID Act before the end 2022.
In recent years, Australian whistleblowers have worked with journalists to reveal exploitative conduct by Australian banks, the mistreatment of migrant workers, the suffering of people in aged care and disability settings, and alleged war crimes in Afghanistan. But while there is so much that Australians now know thanks to the courage of individual whistleblowers, we need to be concerned about what we don’t know – and what stories may never be told – because people are too afraid to speak up.
Our major parties should take a simple but seismic step towards upholding press freedom, by promising to drop these prosecutions and fix our national whistleblowing law if elected.
• Kieran Pender is a senior lawyer at the Human Rights Law Centre
