On the back of our nation’s chief lawmaker announcing that he’s set to overhaul federal public service whistleblower laws, which was made amidst rising calls to drop high-profile prosecutions, two of the nation’s experts on such protections have released a report on how to improve them.
Transparency International’s Professor AJ Brown and Human Rights Law Centre senior lawyer Kieran Pender released their Protecting Australia’s Whistleblowers: The Federal Roadmap report on Wednesday, which posits that both public and private reforms are needed.
The pair outline that due to “complex loopholes” in law regarding the protection of those who speak out about corruption, “whistleblowers are still prosecuted without due regard to the public interest they serve”, adding that an independent authority to uphold their rights is paramount.
During a speech last week, federal attorney general Mark Dreyfus set out that he’ll be reforming the protections for speaking out contained in the Public Interest Disclosure Act 2013 (Cth), with priority changes to be tabled next week and a more comprehensive revision to take place in 2023.
The AG made these remarks after the PID Act whistleblowing protections – which he drafted in 2013 and has long admitted are lacking – were controversially put to the test in relation to the prosecutions of ex-ATO officer Richard Boyle and former ADF lawyer David McBride.
A whistleblower protector
The roadmap sets out twelve areas of reform to bring Australian whistleblower laws up to “international best practice” standards, as currently operate in the US and nations of the EU, and it underscores that there needs to be a “consistent fix” made to all such laws at the federal level.
The key reforms can be split into three overall categories. The first being that of effective administration and enforcement, which is to be chiefly achieved via the establishment of a long-recommended whistleblower protection authority, as, right now, they’re left with no support.
And in line with the long-neglected recommendations of the 2016 Moss report into the PID Act, the roadmap further advises that a “no wrong door approach” to disclosures be taken, meaning that rather than having specific authorities to lodge a complaint with, any logical authority should suffice.
Brown and Pender consider that whilst these changes are being made to public sector protections, a single consistent private and not-for-profit sector law should also be enacted federally as well, which is an approach Dreyfus foreshadowed taking in 2019.
The second key reform area is providing adequate protections. “Like most whistleblowing laws”, the authors explain, the PID Act and its private sector counterpart the Corporations Act 2001 (Cth) “provide immunity from criminal, civil or administrative liability for disclosures of wrongdoing”.
However, the case of ATO whistleblower Richard Boyle is then cited as revealing how uncertain these immunities actually are, as the whistleblower is potentially facing 24 criminal charges, relating to the means he took to expose a corrupt practice that was stopped once a light was shone upon it.
So, currently, whilst the PID Act is supposed to cover the whistleblower in their attempts to uncover corruption, what’s happening is that the truth-teller is being turned on and punished at the federal level for speaking out, whilst those practising corruption are overlooked and walk free.
The report also recommends that compensatory civil remedies be more accessible to those who expose corruption rather than they being left to bear the burden of the consequences for speaking out and further that a culture of protecting whistleblowers be enforced via laws requiring it.
The limit on intelligence
The final key reform is to establish workable thresholds. This calls for greater protection of those who do go public with revelations, that PID laws be extended to cover intelligence information and that personal grievances must not be the trigger for blowing the whistle.
The report points to the ongoing prosecution of ex-military lawyer David McBride, who is currently being prosecuted over his exposure of war crimes to the press after having made an internal complaint that wasn’t adequately acted upon.
The limitation on protection for disclosing intelligence information means that McBride was not able to properly seek protection under PID law, and at present, the law permits his continued prosecution despite the information he disclosed being readily sourced via a government inquiry.
Roasting the messenger
The report also cites data relating to 646 public interest whistleblower cases, which sets out that 56 percent of these individuals suffered serious detriment due to speaking out, whilst 29 percent experienced serious direct damage.
Dreyfus is set to introduce legislation next week to make initial reforms to the PID Act, which will enable the smooth running of the National Anti-Corruption Commission, and he’s stated that he’ll consider the roadmap report whilst drafting the broader reforms to the PID regime.
And despite the fact that he intervened in the whistleblowing prosecution of Bernard Collaery to cancel it under the power bestowed to the attorney general in section 71 of the Judiciary Act 1903 (Cth), Dreyfus continues to claim that he can’t bring a halt to the McBride and Boyle cases.
Boyle was made to put his public interest disclosure defence to the court under the pre-reform laws in October, and he’s currently waiting for the outcome of those proceedings, which, if unsuccessful, means he’ll be facing serious prison time.
And as for McBride, when he turned up for his public interest defence case, he was basically blocked from proceeding, as his legal team found there was no point in conducting the hearing, which was already subject to national security closed door measures, after further stipulations were applied.
Not only did the prosecution plan to challenge McBride’s only two witnesses, one of whom was report co-author Professor Brown, but a last-minute public interest immunity order was slapped on his case, which meant the government could literally remove any piece of defence evidence.
In response to a letter for the Alliance Against Political Prosecutions asking him why he doesn’t end the two controversial prosecutions, Dreyfus said that the pair, McBride and Boyle, were rather to rely on the protections within the PID Act.
“The question of the applicability of immunities under the PID Act to their particular circumstances is a matter for the courts to determine,” the attorney general added in relation to a flawed piece of legislation that he drafted himself and is set to start reforming next week.