It’s been a strange time recently for whistleblowers, and those who value their contribution to Australian society.
Soon after former military lawyer and whistleblower David McBride’s planned public interest defence was thrown out in the ACT Supreme Court, and he was left with no option but to plead guilty to three serious offences (which might send him to jail next year, for revealing war crimes in Afghanistan), federal Attorney-General Mark Dreyfus released a new consultation paper, with the intention of improving public sector whistleblowing protections.
The timing was coincidental, with both of these situations being in train for some time, but the pressure surrounding the issue has been heightened by a recently published open letter from more than 70 organisations and individuals to senior ministers in the Albanese Government, calling on them to ‘end the prosecution of whistleblowers and fix the law to ensure whistleblowers are protected, not punished.’
This idea appears to have broad popular support across the country, with recent polls showing 74 per cent of voters support the protection of whistleblowers. Many other countries already have such laws, including the USA, Slovakia, Ireland and the Netherlands.
Public interest
While in opposition, Anthony Albanese declared that it was ‘simply wrong’ for whistleblowers who revealed shameful history to be prosecuted, making it impossible for his government to avoid the issue, but the immediate reactions to the attorney-general’s modest proposals to streamline secrecy laws and increase transparency have been less than enthusiastic.
Mark Dreyfus has copied an idea of Morrison-era AG Christian Porter to seek the attorney-general’s approval before pursuing journalists through the courts, which is a worry when the AG himself is the subject of investigations, as was the case in Porter’s time.
Mr Dreyfus also wants to create a new secrecy offence to deal with situations like the PwC tax scandal, where confidential government information was used to benefit a private company.
The attorney-general already has the power to stop prosecutions that are not in the public interest, but he’s refused to intervene in the David McBride case so far, or that of ATO whistleblower Richard Boyle.
In the absence of meaningful protection of any kind, the legal fees of whistleblowers and associated jeopardy continues to increase, acting as a disincentive for others to come forward.
Whistleblower Jeff Morris, whose information on misconduct at the Commonwealth Bank sparked the banking royal commission (and was subsequently awarded a Medal of the Order of Australia), said his initial optimism when the prosecution of whistleblower Bernard Collaery was dropped after Labor’s election has not been borne out by any serious law reform, with the idea of a properly resourced whistleblowing authority being dropped from the national anti-corruption commission which began operation in July.
Mr Dreyfus now says he’s ‘considering’ such an authority, and potentially a financial reward system for those coming forward, but there’s no sign of any concrete legislation so far.
Protections broken
Although a number of media organisations have said investigators should have to prove a harm in publishing leaked information (rather than forcing journalists to reveal public interest value), reversing the onus of proof is not part of the attorney-general’s latest proposal, which looks more like a series of patches on bad secrecy laws than a complete overhaul.
Former soldier David McBride, whose father Dr William McBride was also something of a celebrity whistleblower, having revealed the risks of thalidomide, believes he has done his duty by his country.
Outside court Mr McBride said, ‘I see this as the beginning of a better Australia.’
The attorney-general says ‘actual harm’ to the community has to be assessed when balancing public interest and punishments for revealing government secrets, but who will assess this and by what criteria is yet to be seen.
Daniela Gavshon, from Human Rights Watch, said ‘Australia’s human rights reputation is undermined when those who expose wrongdoing, not the wrongdoers, are the ones on trial. This continues to have a chilling effect on freedom of expression. The world is watching.’
As Kerry O’Brien puts it, ‘Journalists cannot do their jobs, telling uncomfortable truths and keeping the powerful honest without whistleblowers, whose own lives have often been destroyed without protection. There is no public interest in prosecuting truth-tellers.’
Originally from Canberra, David Lowe is an award-winning film-maker, writer and photographer with particular interests in the environment and politics. He’s known for his campaigning work with Cloudcatcher Media.
Long ago, he did work experience in Parliament House with Mungo MacCallum.
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