Wednesday, 10 May 2023
Public Interest Disclosure Amendment (Review) Bill 2022; Second Reading
I rise today to make a contribution in relation to this legislation on whistleblowers, the Public Interest Disclosure Amendment (Review) Bill 2022. It is something that I think is absolutely critical that we get right in this place. It has been a long road to get to this point in this parliament. I want to give a little bit of background. Obviously, there has been legislation in place to provide some kind of processes and some kind of protection for whistleblowers. For example, the Taxation Administration Act 1953 raised this issue of protecting whistleblowers. We also saw amendments to the Corporations Act 2001 to try and protect whistleblowers in the private sector, and I will get to that in a second. I participated in the Joint Parliamentary Committee on Corporations and Financial Services inquiry in 2016 and 2017 into whistleblower protections in the corporate, public and not-for-profit sectors. We have seen the Moss review.
We have seen a lot of focus on some very high-profile cases where whistleblowers have actually been pursued and persecuted by this government. So, while on the one hand it is great being in here doing what we can to provide the necessary legislative protections for whistleblowers, it is ironic that on the other hand we are still pursuing high-profile whistleblowers like Richard Boyle, who blew the whistle on practices in the Australian Taxation Office, and David McBride, who leaked information which I will get to in a second which has led to disclosures of war crimes and even to the prosecution of Australian Defence Force personnel. Yet he still awaits trial as the government pursues him for blowing the whistle.
In this parliament over many governments we have worked very hard to see an end to the persecution of Witness K. We tried to get up a Senate inquiry in the last parliament into matters concerning the disclosures of Witness K, but the crossbench and the Greens were unable to get the support of Labor in opposition at the time, which was very disappointing. I do commend the Attorney-General, Mr Dreyfus, for finally bringing to an end that prosecution of a whistleblower whose name we still don't know but who went through sheer hell in his personal life after he tried to go through processes within the Public Service not to leak information but to blow the whistle on something he felt deeply about. Instead, he was dragged through the court system for many years, presumably because the government wanted to make an example of Witness K. That's exactly what they're doing with Richard Boyle and David McBride. Can we at least acknowledge, senators, that it's great to be acting on whistleblower protections? But, at the same time, we have to end these high-profile prosecutions of people who were essentially blowing the whistle and trying to bring some justice to issues they felt very deeply about.
I think the whistleblower protections inquiry has been very important to hone our attention on what needs to be done. That reported at the end of 2017, and it was very comprehensive. It took a number of submissions—over 100—and took evidence in a series of public hearings right around the country. It looked at the current public interest disclosure laws. It looked at previous inquiries and reviews. It looked at international developments and it provided an analysis of international and Australian whistleblower protections. It then looked at what legislation we currently have in place and the inconsistencies in current legislation and in whistleblowing processes and practices and how we might achieve consistency across sectors. It looked at constitutional limitations. It looked at a comparison of whistleblower protections as well as the definition of what would be classified as 'disclosable conduct'. It looked at the differences between current arrangements in that regard in relation to the public sector and the private sector. It then went through a definition of whistleblowers—what do we mean by whistleblowers?—and thresholds for protection, including suspected whistleblowers, protections for those handling disclosures within the public and the private sector, and protections for suppliers and customers. It looked at the anonymity of whistleblowers—provisions and protection for anonymous reporting, the continuity of protection and protections for confidentiality.
It then looked at internal regulatory and external reporting channels, reporting channels in current legislation, internal disclosures, regulatory disclosures and external disclosures. It took evidence from members of parliament and advice from the clerks of both the Senate and the House of Representatives. It looked at protections, remedies and sanctions for reprisals. We received considerable evidence in regard to that. We also looked at systems in, for example, the US around providing rewards for whistleblowers, bounty systems in other jurisdictions, arguments for a reward system in Australia and arguments against reward systems. And of course we looked at the establishment of a whistleblower protection authority. That was an interesting one. There were a number of very detailed appendixes around case studies. I believe it's helped us get to this point where we are today.
Going to the context of this bill, the Greens—as has been already outlined by my colleague Senator Shoebridge—believe it's a positive step to see the government taking action on updating Australia's whistleblower laws, and there is a broad consensus in this place on the need for significant reform. This bill is a beginning. The Moss review from 2016, which was seven years ago, is already significantly out of date, so implementing its recommendations isn't a comprehensive answer to what's needed here. But it's a start, and we commend the government for bringing it forward.
But, even with these changes, the laws leave whistleblowers woefully unprotected. And risks, including court costs, are real, as well as career and personal costs. While a comprehensive review of the PID Act is promised, this is what we've been given and what will be applicable for the NACC's first complaints. That's deeply concerning and may significantly hamper the operation of an integrity body. Going forward, a whistleblower commissioner and commission will be needed to ensure that something is standing in the corner of brave whistleblowers in this country.
We referred this bill for inquiry because of the significant concerns from the sector that, firstly, it would not deliver the needed changes to protect whistleblowers and, secondly, it would have unintended consequences, because of drafting, that would inappropriately exclude many issues that should be covered. We have significant concerns about the extent of the personal work related conduct carve out, as do most stakeholders in this debate. The carve out is supposed to limit matters that are about bullying or workplace issues being taken to the NACC, but this fails to recognise that most whistleblowing matters include a mix of disclosable content and the consequences of this in a workplace. We recognise that the government's own amendments to this bill that passed in the other place go some way towards addressing these concerns, but not far enough.
Beyond this bill and going forward, there is a significant underlying issue, and that is the impact of the overly zealous use of secrecy provisions in laws and how that impacts whistleblowers. This is something that really needs to be addressed in the future, as well as, as I mentioned earlier, ending the ongoing prosecutions of Richard Boyle and David McBride, which are going to undermine public confidence in what we do here. We should actually do as we say and protect whistleblowers, not prosecute them publicly, not drag them through the courts and not make their lives hell in order to send a message to other whistleblowers. Clearly, we need serious reform in this place. And if we're going to do that, we need to drop these cases.
I want to give a special shout-out to David McBride. I have been fortunate enough to speak with Mr McBride at a number of public appearances—as I know my colleague Senator Shoebridge has—particularly around the ongoing political persecution of Australian citizen Julian Assange, a Walkley Award winning journalist who is being prosecuted by the US government. They're seeking his extradition for publishing classified documents—documents that disclose war crimes, corruption, fraud and significant bad behaviour. I would like to make that shout-out to David McBride. He has shown a lot of courage. It wouldn't have been an easy thing to do, as I know from my personal relationship with Andrew Wilkie, the member for Clark in the other place, who blew the whistle on the BS around weapons of mass destruction that was used to take us into an illegal and immoral war in Iraq. I remember, at the time, Andrew Wilkie was essentially being threatened with life in jail for espionage or treason for doing something that he felt was morally right. It has actually turned out that he was right: there were no weapons of mass destruction. We were taken to a war that has killed millions and caused massive disruption across the Middle East on the basis of a massive deception. His courage should be applauded, as should David McBride's.
I understand David McBride's trial is not going to be held until November this year, and even that's not necessarily set in concrete. It is over four years since charges were brought against David McBride. The trial, when it happens—if it happens—is expected to last for up to three weeks. But this has been hanging over his head since he was arrested at Sydney airport, after returning home from Spain in September 2018. He's accused of leaking classified Defence information to three senior journalists at the ABC—who, by the way, had their offices raided and searched—and also to Fairfax Media newspapers. The material that he leaked formed the basis of the Afghan Files, which led to a 2017 ABC expose revealing allegations of misconduct by Australian special forces in Afghanistan, including possible unlawful killings. As I mentioned earlier, there has now been a conviction in relation to this. The disclosures also led to the much-publicised Federal Police raid on the ABC's offices in 2019.
David McBride has pleaded not guilty to five charges, including the unauthorised disclosure of information, theft of Commonwealth property and breaching the Defence Act. As I mentioned earlier, it's just hypocrisy for us, as members of parliament, to be coming in here, passing laws and talking about the need to protect whistleblowers while we are so actively persecuting a high-profile whistleblower who believed deeply that he was doing the right thing. How can it not be in the public interest to be releasing information about possible or probable war crimes by Australian Defence personnel? We can't point the finger at other countries when we treat whistleblowers in this country like that. As Kieran Pender, a lawyer at the Human Rights Law Centre, said:
This case should never have commenced; but it is not too late for the Attorney-General, @Mark DreyfusKCMP, to end it. Rather than prosecuting whistleblowers, the govt should get on with fixing whistleblowing law—
Like we're doing today—
and ensuring accountability for Australia's wrongdoing in Afghanistan.