Whistleblowers should be protected not prosecuted, says lobby group droptheprosecutions.org.au in its open letter to the Attorney-General Hon. Mark Dreyfus KC and the Australian Government:
“Australia is a better place when brave individuals speak up, wrongdoing is exposed, and wrongdoers are held to account. Whistleblowers and journalists have played a vital role working together to shine a light on the major injustices of our recent decades.
But the first person who could go to jail for war crimes in Afghanistan is not the perpetrator – but the person who helped expose it. David McBride could spend years in jail for helping reporters tell the truth about wrongdoing.
And he’s not the only one - Richard Boyle is also facing trial, for blowing the whistle on misconduct at the tax office.
There is no public interest in prosecuting whistleblowers, and your government has the power to stop this.
We call on you to end the prosecution of whistleblowers and fix the law to ensure whistleblowers are protected, not punished.”
The Attorney-General, Mark Dreyfus KC, has executive power under the Judiciary Act to discontinue prosecutions. He used this power last year to drop the unjust case against whistleblower Bernard Collaery, who helped expose Australia’s spying on Timor-Leste.
The Commonwealth Director of Public Prosecutions can also discontinue prosecutions at any time.
So, the first person who could go to jail for war crimes in Afghanistan is not an alleged war criminal but the person who exposed it?
David McBride has been charged with leaking documents to journalists that formed the basis of “The Afghan Files” – a 2017 ABC expose revealing allegations of misconduct by Australian special forces in Afghanistan, including possible unlawful killings.
McBride had earlier spoken up internally and to oversight bodies. He will face a jury in mid-November, the first person on trial in relation to war crimes in Afghanistan.
Richard Boyle worked at the tax office when he witnessed debt recovery powers being used unethically to target people in vulnerable situations.
Boyle spoke up internally, then to the Tax Ombudsman, and then to journalists as a last resort. He will face trial next year.
Both David McBride and Richard Boyle spoke up internally first, and then to oversight bodies. Both are alleged to have spoken to journalists as a last resort.
Under federal law, whistleblowers are permitted to blow the whistle to journalists or politicians in certain circumstances – either in emergency situations or when internal whistleblowing fails. McBride was forced to withdraw his whistleblowing defence after a national security intervention by the government last year.
Both cases underscore the risks faced by whistleblowers in going public and the need for stronger laws.
The Federal Labor Government has affirmed its commitment to press freedom, transparency and accountability, by establishing the National Anti-Corruption Commission, convening a press freedom round table and moving forward with reforms to whistleblower protections, surveillance laws and secrecy offences.
That commitment is laudable – but the prosecutions of David McBride and Richard Boyle continue the Morrison Government's war on whistleblowers and send a loud contrary message which must be rectified. This government’s failure to act is a blight on its record and our international standing.
Australia’s whistleblowing laws are broken. Comprehensive reform is urgently needed, together with the establishment of a dedicated whistleblower protection authority.
Key reform needs were outlined in a report published last year by Transparency International Australia, the Human Rights Law Centre and Griffith University’s Centre for Governance and Public Policy.
Meanwhile, in the UK:
The Letby case has put a spotlight on the treatment of NHS whistleblowers and their disclosures.
And a Bill to establish an Office of the Whistleblower has passed its second reading in the UK Parliament.
Whistleblower retaliation by public sector organisations, including dismissal and weaponisation of legal costs, is achieved by instructing lawyers to argue employees out of their protection under the Public Interest Disclosures Act (Protected Disclosures Act in New Zealand).
In extreme cases this has included getting court orders for name suppression, although standover tactics to get employees to sign non-disclosure agreements (NDAs) are more common.
If the Bill becomes law in the UK, New Zealand is likely to follow.