Monday, 11 September 2023
Private Members' Business
In February 2019, the member for Isaacs, who is now the Attorney-General, put his name to a Labor media release promising that, if elected, Labor would:
The media release went on to note:
… blowing the whistle on crime and misconduct is incredibly difficult, with whistleblowers often facing reprisals, and some are never able to work again. For many Australians who see wrongdoing and want it to stop, blowing the whistle isn't worth the risk.
Labor described its commitment to a whistleblower protection authority as a one-stop shop to support and protect whistleblowers, with dedicated staff to advise whistleblowers on their rights, assist them through the disclosure process and help them access compensation if they faced reprisals. I agree with this wholeheartedly. I would simply say to the government: get on with it.
Just last week, the Attorney-General again alluded to these intentions in the House, as my colleague opposite has today, yet two whistleblowers await potential jail for telling the truth, the NACC is up and running, and the whistleblower commissioner is nowhere to be seen. As Professor John McMillan noted in this week's Saturday Paper, it's easy to be very pro transparency and accountability from opposition, but governments tend to behave very differently—and he should know; he's a former Commonwealth ombudsman and was inaugural head of the Office of the Australian Information Commissioner.
It's a huge step forward that we have the National Anti-Corruption Commission, but to function effectively the NACC must be accompanied by enhanced protections for whistleblowers, preferably via a standalone whistleblower commission or, failing that, a NACC commissioner with specific whistleblower responsibilities. The Attorney assured us that it was his intention to have an effective update of whistleblower protections in place at the same time as the NACC started to operate on 1 July. So far, some technical amendments to the Public Interest Disclosure Act have been put in place, with more reform to come, but, in the meantime, whistleblowers remain at risk. And as for a whistleblower protection authority, all we have is a commitment from the Attorney to a discussion paper on the need for a public sector authority.
Among other things, at the very least, as I suggested with proposed amendments at the time of the NACC debate, the government needs to: strengthen the definition of corrupt conduct to ensure it doesn't capture the use of government information received by journalists; legislatively protect whistleblowers who make external disclosures, including to journalists, in instances when the investigation of their disclosure or the response to the investigation of their disclosure has been inadequate; limit the power to issue search warrants in cases like the raids on the ABC and the home of reporter Annika Smethurst; require all warrant applications impacting journalists or their informants to be contested by an independent public interest advocate who is a retired judge, practising senior counsel or King's Counsel; and exclude the premises of media organisations from the NACC's powers to search without a warrant. Unless and until adequate protections are put in place for whistleblowers and until there is institutional support for people seeking to expose corruption, good public-spirited individuals with the best of intentions will be intimidated out of reporting wrongdoing.
What we have in the two cases highlighted in this motion is persecution by prosecution, and that can only have a chilling effect on others who have come across wrongdoing, official or corporate. This is backed up by empirical research by the Human Rights Law Centre finding that as many as eight in 10 whistleblowers face some form of detriment at work. In the cases of Richard Boyle and David McBride, the cost has been immense in personal, professional and financial terms. They now face possible jail time for helping reporters to tell the truth about matters of declared public and national interest. The solution to that, therefore, is in the hands of the Attorney-General. He has the authority under section 71 of the Judiciary Act to decline to proceed further with a prosecution for an indictable offence. Also in his hands is the establishment of a whistleblower protection authority and the other measures that I mentioned earlier.
The Attorney-General was content to endorse such pledges from opposition in 2019. It's time to get on with it and implement those commitments now that Labor is in government.