Sunday marked World Whistleblower Day. Unfortunately for whistleblowers in Australia, our weak laws and ongoing prosecutions offer little room for optimism on such a day.
In May, David McBride was imprisoned for nearly six years for leaking documents to the ABC that led to the landmark Afghan Files reporting. And last week, tax office whistleblower Richard Boyle lost his appeal for immunity from prosecution under federal whistleblowing laws. Barring an appeal to the High Court, Boyle will face trial in September — and the prospect of years in jail if convicted (he has pleaded not guilty).
The Boyle case is an unfortunate demonstration of all that is wrong with whistleblower protections in Australia at the moment. Boyle worked at the tax office in its debt collection team. The ATO has draconian powers to seize money directly from taxpayer bank accounts, with little due process, and Boyle was worried about a revenue-raising culture within his team.
Boyle was hearing from taxpayers directly affected by these orders, including women escaping domestic violence and small business owners experiencing suicidal ideation. Taxpayers are rightly expected to pay the taxes they owe; equally, we expect government authorities to exercise coercive powers sensitively and appropriately. That is why Boyle spoke up.
Boyle spoke up within the tax office (the court last week found his internal whistleblowing was not dealt with “appropriately”). He then spoke up to the tax ombudsman, and as a last resort to the media, to distinguished investigative journalist Adele Ferguson.
His whistleblowing has been vindicated. The tax ombudsman accepted there were problems at the Adelaide branch. The small business ombudsman found there had been “excessive” use of garnishee notices. And a Senate inquiry found that the tax office’s internal review of Boyle’s whistleblowing had been “superficial”.
It is hard to imagine whistleblowing more clearly in the public interest. Indeed the Court of Appeal’s judgment, published Friday, began with an observation that the prosecutors accept that Boyle “is a whistleblower as that term is commonly understood”. Why, then, did he lose his appeal?
Boyle is being prosecuted not for his whistleblowing, but for gathering documents, taking photos of information and recording a conversation with colleagues, in what he says was preparation for blowing the whistle internally. His lawyers argued the immunity in federal whistleblowing law must necessarily extend to preparatory conduct linked to the whistleblowing. That argument was rejected by the trial judge, and now the appeal court (the Human Rights Law Centre intervened in the appeal as a friend of the court).
The appeal confirms a very narrow approach to whistleblower protections in Australia: only the actual act of blowing the whistle is protected, nothing else — no matter how closely linked to the whistleblowing.
Imagine a public servant concerned that their manager, who they work alongside every day, has been acting corruptly — and they have a document which offers evidence. The public servant might want to blow the whistle to the ombudsman, or the National Anti-Corruption Commission. They might take the document home given their supervisor is over their shoulder all day, every day — solely for the purpose of attaching it to their public interest disclosure. Following the judgment in Boyle’s case, such an act would expose the would-be whistleblower to criminal charges for theft and a possible code of conduct investigation.
Whistleblowing laws also explicitly allow whistleblowers to speak up to journalists and MPs in certain circumstances. But now they cannot provide any documents or information that is not already in their lawful possession. The protection is only to tell a journalist about allegations of corruption, not provide any evidence. How many journalists and MPs will take a whistleblower’s word for it?
The Boyle prosecution should never have been brought — it is not in the public interest. But now it has significantly undermined the scope of whistleblower protections in Australia, too.
The government recognises this — a discussion paper from the Attorney-General’s Department notes that protection for preparatory conduct is an issue to be considered in forthcoming reform. But that will come too late for Boyle. And it may not even come in this term of government. Following a first round of minor, technical whistleblowing reform last year, there has been no update on the timeframe for a more substantial overhaul. The Albanese government has also so far refused to commit to establishing a whistleblower protection authority.
The clock is ticking — and whistleblowers are staying silent as a result of the prosecutions and the government’s delays in enacting stronger protections. This is not just bad for whistleblowers, but undermines the principles of transparency, integrity and accountability at the heart of Australia’s democracy.
Amid a grim month for whistleblowers in Australia, there was some positive news on Tuesday with the long-overdue release of Julian Assange. The case against the WikiLeaks publisher has raised significant concerns about press freedom and transparency globally; it is a relief Assange is now on his way home.
But a satirical take from The Chaser grimly encapsulated the landscape currently faced by Australian whistleblowers. “Julian Assange cuts deal with the US,” the outlet posted on social media, “after seeing what Australia does to whistleblowers.”
Should Australia be doing more to protect whistleblowers? Let us know your thoughts by writing to letters@crikey.com.au. Please include your full name to be considered for publication. We reserve the right to edit for length and clarity.
