House debates

Monday, 11 September 2023

Private Members' Business

Whistleblower Protection

12:31 pm

Photo of Kylea TinkKylea Tink (North Sydney, Independent) Share this | Hansard source

I move:

That this House:

(1) recognises:

(a) that despite the Prime Minister declaring he wanted to 'change the way' we do politics in Australia, the Government is following the well-trodden path of the previous Government and failing to meet the transparency expectations of the Australian public; and

(b) this failure is particularly acute when it comes to the protection of whistleblowers;

(2) notes that:

(a) whistleblowers make our democracy stronger by valuing accountability and justice, and promoting good government and good governance;

(b) whistleblowing is one the most effective ways to detect and prevent corruption;

(c) the action of high-profile whistleblowers, such as Richard Boyle and David McBride, has resulted in changed policy and/or public good;

(d) the ongoing prosecutions of these individuals are having a chilling effect on anyone considering blowing the whistle to reveal unlawful and other wrongful conduct, and are not in the public interest;

(e) the Attorney-General has authority under section 71(b) of the Judiciary Act 1903 to decline to proceed further with a prosecution for an indictable offence; and

(f) this power was granted to the Attorney-General so that he may discharge his ultimate responsibility to Parliament and to the Australian people for the conduct of the prosecution process with due regard for public interest; and

(3) calls on the Attorney-General to act in the name of transparency and utilise his power to immediately cease the prosecutions of Richard Boyle and David McBride.

Before I address the motion, I want to put the following facts on record. Richard Boyle blew the whistle on egregious use of garnishee notices by the Australian Taxation Office. David McBride blew the whistle on war crimes in Afghanistan. The actions of both whistleblowers have resulted in public good, yet both men are being prosecuted for their actions and both are relying on whistleblower protection laws that the Attorney-General has acknowledged to be inadequate. The prosecutions are having a chilling effect on whistleblowing in Australia. The Attorney-General has the ability under section 71(b) of the Judiciary Act to decline to proceed further in the prosecution, and this power has been granted to him so that he may discharge his ultimate responsibility to the parliament and to the people for the conduct of the prosecution process.

This motion relates to a matter that is well known to the House and to the Australian people—namely, the lack of transparency around how the Attorney-General may choose to exercise his statutory power under the Judiciary Act of 1903 to stop the prosecutions of people who are doing nothing more than seeking to expose the truth.

As members would be aware, during last week's parliamentary sitting, on two separate occasions, questions and motions were put to the House calling on the Attorney-General to step in and stop these prosecutions. Each were either brushed off or blocked by the two major parties with only 15 members in this place—all the Independents, the Greens and one other that was brave enough to cross the floor—voting in favour of debate around this matter being prioritised.

At the time, one of the reasons used to block the debate was the claim that these matters are sub judice. So, before proceeding, I'd like to address that issue because in this circumstance I think it's being used to stymie appropriate public debate. While it is generally the practice of the House that matters awaiting, or under, adjudication in the court of law are not brought forward in debate, the application of the sub judice convention is a matter of discretion of the Speaker. In turn, the Speaker is obliged to uphold the inherent right of the House to inquire into and debate matters of public importance, while at the same time ensuring the House does not set itself up as an alternative forum to the courts or permit the proceedings of the House to interfere with the course of justice. The approach taken by successive Speakers was authoritatively expressed by Speaker Snedden in 1976 when he emphasised that, while the sub judice rule applies to matters that would be to the prejudice of litigants before a court, it is vital 'not to interpret the sub judice rule in such a way as to stifle discussion in the national parliament on issues of national importance.'

Today's motion, then, is an important next step in breathing oxygen into this debate. It's not about the court proceedings related to Mr Boyle and Mr McBride but, rather, the Attorney-General's resistance to exercising his power, under section 71(b) of the Judiciary Act 1903, to not proceed further in prosecution or to provide clear guidance on what circumstances would prompt him to exercise this power. Section 71(b) of the Judiciary Act provides that:

When any person is under commitment upon a charge of an indictable offence against the laws of the Commonwealth, the Attorney-General … may decline to proceed further in the prosecution …

In this 47th Parliament, the Attorney-General has exercised this power once—to end the prosecution of Mr Bernard Collaery. At the time he said that he 'had careful regard to our national security, our national interest and the proper administration of justice'. In parliament this week, the Attorney-General responded to questions as to why he would not intervene in the circumstances of Mr Boyle and Mr McBride by saying that the power of the Attorney-General 'is reserved for very unusual and exceptional circumstances'.

My question to the Attorney-General, then, is: what constitutes very unusual and exceptional circumstances, particularly when this standard is not articulated in anywhere in section 71 of the Judiciary Act? Rather, it would appear this test is the test that only the Attorney-General himself is able to define, so I ask him to please do so. Both Mr McBride and Mr Boyle have already been subject to protracted and costly proceedings. Every day the government lets these prosecutions continue. They are sending a clear message that to blow the whistle is to bring the full force of the law down on your own head. In this context, by any measure, surely, these prosecutions are, at best, unwarranted and not in the public interest, and, at worst, punitive. Surely, then, they are unusual and exceptional circumstances.

On behalf of the people of North Sydney, I appeal to the Attorney-General: please use your executive power to stop the prosecutions of these two whistleblowers. To do anything less is to continue to send a clear message to those who would speak truth to power that they should not do it, as rather than stand with them, power will work to shut them down.


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