The Attorney-General’s Department warned Mark Dreyfus that his intervention in Bernard Collaery’s case would fuel political pressure on the government to also end the prosecutions of Richard Boyle and David McBride, documents show.
Dreyfus won praise for his stance in the Collaery case, where he made unprecedented use of powers in the Judiciary Act to stop the lawyer’s prosecution for revealing Australia’s espionage on its impoverished ally Timor-Leste during oil and gas negotiations.
Documents released to the former senator Rex Patrick and seen by Guardian Australia show Dreyfus’s department warned him the move would put political pressure on his government to act similarly in the cases of Boyle, a former tax official whose disclosures prompted a Four Corners investigation into aggressive debt recovery practices, and McBride, a former military lawyer who leaked documents to the ABC.
A redacted briefing prepared by the Attorney-General’s Department and handed to Dreyfus on 1 July 2022 – six days before he intervened in Collaery’s case – detailed the “key risks” associated with intervening in the case.
“A decision to end Mr Collaery’s prosecution may also generate public calls for you to intervene to end the prosecutions of Mr David McBride and Mr Richard Boyle,” the department’s briefing said.
“Those calls have already been made by Senator [Rex] Patrick, Senator [Nick] McKim and others.”
Human rights lawyers, transparency advocates and independent MPs and senators have been calling on Dreyfus to intervene and end the prosecution against Boyle, who is awaiting an appeal decision on his entitlement to whistleblower protections, and McBride, who pleaded guilty to three charges in November, including stealing commonwealth information and passing that on to journalists at the Australian Broadcasting Corporation. McBride is now awaiting his sentencing hearing in March.
The attorney general, who has long championed whistleblower protections, has so far resisted those calls, saying his powers should only be used in “exceptional circumstances”.
Responding to a crossbench motion in support of McBride last month, Dreyfus said intervening in the case as a result of political pressure could “have a range of far-reaching consequences”.
“It could call into question the attorney general’s motives. It could politicise the prosecution process,” he said. “It could undermine the independence of the Director of Public Prosecutions. So any suggestion … that an attorney general should intervene in prosecutions routinely or has some kind of permanent, standing or ongoing supervisory jurisdiction in circumstances that are not truly exceptional should be strongly resisted.”
McBride has said his motivations for leaking the documents to the ABC were mixed. The former military lawyer said he believed some soldiers were being wrongly investigated for war crimes and that “soldiers were being improperly prosecuted as a smokescreen to cover [leadership’s] inaction and failure to hold reprehensible conduct to account”.
But in an affidavit lodged as part of his withdrawn bid for whistleblower protection, McBride also said that he had wanted Australians to know that “Afghan civilians were being murdered and Australian military leaders were at the very least turning the other way and at worst tacitly approving this behaviour”.
“I knew the ADF was not going to fix itself,” he wrote in 2021 of his decision to go to the media. “If I walked away, nothing was going to happen, it was only going to get worse.”
Patrick’s FoI requested specific departmental briefings to Dreyfus on the potential use of his Judiciary Act powers in the McBride matter.
No such documents were identified by the department. Guardian Australia understands Dreyfus has received more generalised briefings from his department on the circumstances of the case.
Citing the freedom of information documents, Patrick accused Dreyfus of not responding seriously to calls for McBride’s prosecution to be dropped.
“Time and time again Mr Dreyfus stood up and preached that he could only intervene in prosecutions in ‘exception circumstances,’” Patrick said. “The crossbench was calling on him to drop his prosecution and the public were too. Dreyfus just turned his head the other way.”
