Whistleblowers and their Discontents
Once you blow the whistle,
you can’t go back.
Whistleblower laws, such as the Public Interest Disclosures Act (No 14) 2022 (NSW), allow officers or employees of government agencies and corporations to make transparent to the public governmental misconduct and breaches of the law. [1] It is clear that the public at large supports this, with a 2023 Australian Institute and Human Rights Law Centre report of 1002 Australians showing that 76% of Australians believe that whistleblowers make Australia a better place, and 84% believe that whistleblowers should be provided with greater protection. [2] However, as seen in the cases of David McBride, Richard Boyle, and Bernard Collaery. whistleblowers are often not protected under these laws, despite this public pressure and support. Thus, the effectiveness of the legislation is brought into question.
The most recent case was of David McBride, who was charged with theft of Commonwealth property, breaches of s 73A(1) of the Defence Act 1903 (Cth), and unlawful disclosure, after he exposed documents regarding war crimes by Australian soldiers in Afghanistan. According to the prosecution, the Public Interest Disclosure Act 2022 (NSW), which should protect whistleblowers from charges such as this, did not apply on the grounds of national security. The Human Rights Law Centre cited McBride’s persecution as an example of the flaws in the legal system concerning whistleblowers, as he is being prosecuted, despite not having committed war crimes in Afghanistan. [3]
In another case, Richard Boyle blew the whistle on the Australian Taxation Office’s misconduct regarding the targeting of specific individuals and businesses to raise revenue in 2019. He testified telling that the ATO was pressuring taxpayers and that he was worried that people were at risk of suicide from the stress. [4] Yet Judge Kudelka of the District Court of South Australia found that his actions were again not protected under the Public Interest Disclosure Act, as its key protections apply to the specific moment of making injustices public, but not to the preparatory steps which Boyle took to gather evidence .[5] Despite the decision by Judge Kudelka being appealed and delayed until September 2024, this was a result that a representative of the Human Rights Law Centre said was a testament to how the ‘law was utterly broken.’ [6]
Finally, Bernard Collaery was a lawyer who assisted in revealing Australia’s conduct in Timor-Leste, alleging that spies were bugging Timor Leste’s cabinet to give Australia an advantage in oil and gas negotiations. He was charged under the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), but the case was dropped by Governor-General Mark Dreyfus after sustained advocacy from the Human Rights Law Centre. However, the main whistleblower, ‘Witness K’, was given a suspended sentence after pleading guilty in June 2020. Collaery would later state that the ‘elements that supported poor policy decision-making remain within the bureaucracy.’ [7]
It is clear from the above cases that whistleblowers are not protected and the lack of protections to deal with this sends a clear message — be quiet. Ebony Bennot succinctly summarised the issue at hand: ‘If Australian Defence Force personnel witness horrific behaviour, the correct thing to do is ignore it. For lawyers, the message is that it's too risky to represent whistleblowers. For journalists, it's that you could go to jail for doing your job, just for publishing stories that are clearly in the public interest.’ [8] In the future, legal reform will need to separate corporations and government from inquiries into whistleblower accusations and protect the anonymity of whistleblowers. [9]
[1] ASIC, ‘Whistleblower protections’, (Web Page) <https://asic.gov.au/about-asic/contact-us/reporting-misconduct-to-asic/whistleblower-protections/>.
[2] The Australian Institute, ‘Polling – Whistleblowing & secrecy’, (Online Report, May 2023)
<https://static1.squarespace.com/static/580025f66b8f5b2dabbe4291/t/6450f79cb4e1983a33a4ccd8/1683027870561/HRLC_TheAusInstitute_PollingWhistleblowing.pdf>.
[3] Michelle Bennet, ‘Prosecution of war crimes whistleblower David McBride must be dropped’, Human Rights Law Centre (Opinion Piece, 24 October 2022) <https://www.hrlc.org.au/news/2022/10/24/prosecution-of-war-crimes-whistleblower-david-mcbride-must-be-dropped>.
[4]Tory Shepherd and Christopher Knaus, ‘ATO whistleblower Richard Boyle faces trial after immunity defence fails’, The Guardian (News Report, 27 March 2023) <https://www.theguardian.com/australia-news/2023/mar/27/ato-whistleblower-richard-boyle-face-trial-after-immunity-defence-fails>.
[5] Christopher Knaus, ‘Richard Boyle claims judge wrong to deny him whistleblower protections’, The Guardian (News Report, 19 May 2022) <https://www.theguardian.com/law/2023/may/19/richard-boyle-claims-judge-wrong-to-deny-him-whistleblower-protections>.
[6] Thomas Feng, ‘Landmark whistleblower protections appeal begins: Human Rights Law Centre appearing’ Human Rights Law Centre (News Report, 9 August 2023) <https://www.hrlc.org.au/news/2023/08/09/boyle-intervention>.
[7]Christopher Knaus ‘Bernard Collaery likens his prosecution by Australia to a ‘Moscow show trial.’ The Guardian (News Report, 5 October 2022) <https://www.theguardian.com/australia-news/2022/oct/05/bernard-collaery-likens-his-prosecution-by-australia-to-a-moscow-show-trial>.
[8] Ebony Bennot, ‘When the government prosecutes whistleblowers, it is sending a message’, The Canberra Times (Web Page, 10 July 2020) <https://www.canberratimes.com.au/story/6827655/when-the-government-prosecutes-whistleblowers-it-is-sending-a-message/#gsc.tab=0>.
[9] Zilla Efrat, ‘7 ways to establish an effective whistleblowing policy’ AICD (Web Page, 30 October 2019) <https://www.aicd.com.au/regulatory-compliance/government-legislations/corporate-whistleblower-policy/7-ways-to-establish-an-effective-whistleblowing-policy.html>.
This article was originally published under the title ‘Shattered Trust: Whistleblowers and Governmental Protections’ in The Brief Edition 1, 2024 — Through a Glass, Darkly.