Monday, 11 September 2023
Private Members' Business
That this House:
(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;
(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.
This government does not support the member for North Sydney's motion or the way in which it is framed. On our watch, the National Anti-Corruption Commission has commenced and overdue reforms to whistleblower legislation have been passed. That does not mean that there isn't more to do. The Attorney-General was strongly of the view that integrity and the rule of law are central to Australia's criminal justice arrangements. The Attorney-General's power to discontinue proceedings is reserved for very unusual and exceptional circumstances.
Prosecution of alleged Commonwealth crimes is a matter for the Commonwealth Director of Public Prosecutions, or CDPP, acting in accordance with the prosecution policy of the Commonwealth. That policy requires the CDPP to be satisfied that there is sufficient evidence to prosecute the case and that the prosecution is in the public interest. Under the policy, the CDPP also considers whether a prosecution should continue. As Mr McBride's and Mr Boyle's proceedings remain ongoing, it is inappropriate for me to comment further on the particulars of their matters. However, I note that the government is committed to delivering strong, effective and successful protections for whistleblowers.
The government has already delivered priority amendments to the Public Interest Disclosure Act and will commence the second broader stage of reforms, which will include public consultation on the following: broader reforms to the Public Interest Disclosure Act to provide effective and accessible protections to public sector whistleblowers and address the underlying complexity of the existing scheme. This also includes the need for additional supports for public sector whistleblowers, such as a whistleblower protection authority or commissioner. The government is delivering on its commitment to ensure that Australia has effective frameworks to protect whistleblowers, which are critical to supporting integrity and the rule of law. Reforms to the Public Interest Disclosure Act have been long overdue, and significant reform is required to restore the act to a scheme that provides strong protection for public sector whistleblowers.
The Albanese government has passed legislation to strengthen protections for public sector whistleblowers already in this term, delivering on our election commitment to deliver those overdue reforms of the Public Interest Disclosure Act. Those reforms include some of the following changes. The Public Interest Disclosure Amendment (Review) Act reinforces the positive duty to protect whistleblowers and principal officers by requiring them to provide ongoing training in education to public officials in their agency. It strengthens protections for disclosures and introduces protections for witnesses, including expanding the definition of detriment that will attract remedies. It enhances the oversight roles of the Ombudsman and the Inspector-General of Intelligence and Security. It facilitates the reporting and sharing of information related to public interest disclosures to ensure that they can be properly addressed. It improves the allocation and investigation processes for authorised officers and principal officers, and removes solely personal work related conduct from the scope of disclosable conduct. This helped to ensure that immediate improvements to the public sector whistleblower scheme were in place before the NACC commenced on 1 July 2023. Those reforms, as I said, were overdue, but there's more to be done.
The second stage will involve redrafting the Public Interest Disclosure Act to address the underlying complexity of the scheme and provide effective and accessible protections to public sector whistleblowers. This will include consulting widely on whether there's a need to establish a whistleblower protection authority or commissioner.
Reforms to the Public Interest Disclosure Act and our government's broader Australian Public Service reform agenda are about restoring the public's trust and faith in government and its institutions, and achieving this by rebuilding the capacity and expertise of government. Looking around the world at the state many great democracies find themselves in and contemplating the challenges for our country that loom on the horizon and creep ever closer to us, there are few tasks more important than restoring trust in, and the capacity of, government. The government has already taken significant steps to rebuild trust and transparency in government; suggesting that it hasn't is disingenuous. To reiterate: this government does not support the member for North Sydney's motion.
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.
Transparency was one of the most important issues at the last election, and I can say, from personal experience of talking to people who were considering their vote throughout my electorate, that it determined many people's votes. The reason I state that here is that it has been one of the government's greatest priorities during this term in government.
While we're going to disagree on some issues in this Chamber during the course of discussing this motion, I do want to acknowledge from the outset that, across the chamber as people are sitting right now, there is a great deal of agreement on some first-order issues when it comes to how we should deal with transparency and when it comes to some of the systemic aspects of this issue—for example, the need for a national anticorruption commission with teeth and the need for whistleblower regulation. There will be aspects of this motion that I can't agree with and that the government, undoubtedly, wouldn't agree with, but I think it's important to set the scene and the context for that.
This is a first-order issue, and I do want to put on the record that I think a great deal of progress has been made. Certainly I wouldn't want to be part of a government that was going down the same well-trodden path of previous governments, and I don't believe that that's the case when it comes to many key aspects of reform in this area. I will get to the issue of whistleblowers, but I do think it's important to mention, at least, the NAC that has been implemented. This was, I believe, one of the key broken promises of the previous government. There was an inordinate delay—unexplained and unjustified—in the drafting of the legislation. Then, when the legislation was drafted, it sat outside the chamber, ridiculously, waiting for the opposition to make certain statements about it. Thirdly, there was the actual content of the bill, with the Commonwealth integrity commission, as put, described by senior lawyers across the board as deeply flawed, a disaster and having no teeth. David Ipp, the former commissioner of the New South Wales Independent Commission Against Corruption said that Morrison had created the kind of integrity commission you would want when you don't want to have one. So that is a huge step forward, and, as I said, I think everybody in this chamber at the moment would support the broad reform that has been implemented during this term of government.
Let's go to whistleblowers. Again I want to state from the outset that whistleblowers do play an important role in uncovering corruption. They promote integrity and good governance, and the broad regulation of whistleblower behaviour is absolutely key, so the Albanese government has already passed legislation to strengthen protections for public sector whistleblowers. We've delivered on the election commitment to deliver long overdue reform of the Public Interest Disclosure Act 2013, passing priority amendments. Kieran Pender, a senior lawyer at the Human Rights Law Centre, said:
The Attorney-General is to be commended for resuming the journey towards a better whistleblowing framework, having led the initial enactment of the PID Act—
the Public Interest Disclosure Act—
over a decade ago.
Clancy Moore, the CEO of Transparency International Australia, praised the amendments, saying:
These initial technical changes will start to breathe life back into federal whistleblower protection in tandem with the Albanese Government's historic success in establishing Australia's long awaited national anti-corruption commission.
There will a second stage of reforms that will involve redrafting the Public Interest Disclosure Act to tackle the scheme's complexity and to provide effective and accessible protections to public sector whistleblowers. So there's a lot that's been done and more will be done.
When it comes to the particular case that has been raised, individual cases can be difficult to discuss and they involve difficult consideration of particular circumstances. On top of that, there is the difficulty of the fact that attorneys-general rarely discontinue cases. It is not something that happens very often. As has been noted, it occurs under very unusual and exceptional circumstances. Sensible people can disagree on whether a particular fact case is very unusual and exceptional. The Commonwealth DPP considers a wide range of factors when determining whether to bring a case forward. We all believe in the rule of law. That does involve the Attorney-General using the power of discontinuance very rarely. I support the government's actions to date, with more to come.