Mark Dreyfus, whistleblowers and the non-existent circumstances

by Rex Patrick | Sep 23, 2023 | Government, Latest Posts

The Attorney-General keeps repeating that the powers he’s being asked to use to drop the prosecutions of David McBride and Richard Boyle can only be used in “exceptional circumstances,” committing a deceit on both the Parliament and the public. Rex Patrick explains.

Every day the prosecution of McBride and Boyle continues is a day that no-one in their right mind will blow the whistle on corrupt or other wrongful conduct. The price is plainly too high. The Attorney-General is sending a very clear message. No one will have your back. You will likely be bankrupted and may end up in prison. It’s having a chilling effect on whistleblowing right across the country.

Dreyfus is making it up

There’s a classic scene in the movie, Shawshank Redemption. ‘Red’, played by Morgan Freeman, confronts the parole board at the prison on yet another occasion. He’s asked by the board if he knows what the word “rehabilitated” means.

“Rehabilitated? Now let me see. You know, I don’t have any idea what that means.” He goes on, “I know what you think it means, sonny. To me it’s just a made-up word; a politician’s word.”

Freeman’s script could easy be adapted to the phrase “exceptional circumstance” being touted by Attorney-General Mark Dreyfus in his attempts to justify his refusal to use powers granted to him under the Judiciary Act to drop a prosecution. They’re made-up words, politician’s words.

Nowhere in the Judiciary Act are those words to be found.

Section 71 of the Judicary Act

Australia’s Judiciary Act 1903 is among the oldest pieces of federal legislation still in force; one of only six laws passed during the first Commonwealth Parliament that are current still in the statute books.

Section 71 of the Act says.

“When any person is under commitment upon a charge of an indictable offence against the laws of the Commonwealth, the Attorney-General or such other person as the Governor-General appoints in that behalf may decline to proceed further in the prosecution, and may, if the person is in custody, by warrant under his or her hand direct the discharge of the person from custody, and he or she shall be discharged accordingly.”

This power comes with a bit of history. For centuries the Attorney-General of the United Kingdom, on behalf of the crown, had the ability to end a prosecution. Section 71 of the Judiciary Act replaces the long held prerogative power with a power explicitly granted to the Attorney General by the Parliament.

And although it might be expected that the power would be used rarely, there’s nothing … absolutely nothing … in the long history of the common law power or the 120-year history of the Judiciary Act that suggests there is an ‘exceptional circumstance’ test.

The Attorney-General’s ‘exception circumstance’ claim is just nonsense.

This has been confirmed by the Full Federal Court, which looked at Section 71 in a 1984 case, Peter Clyne v Attorney-General of the Commonwealth Australia, and stated of the power that, “what was conferred on the Attorney-General was an unfettered discretion”. The Court stated without reservation that the power was “not subject to any control” but noted that “the Attorney-General may have had to answer to Parliament for the manner of its exercise”.

Perhaps Dreyfus’ inability to appreciate jurisprudence and respect precedent is a sign that he’s all politician and no lawyer.

Familiar words, but in different places

Whilst the words ‘exceptional circumstances’ aren’t in the Judiciary Act, they may sound familiar.

That’s because it’s the threshold used by Dreyfus, and agreed to by the major parties, in Section 73 of the National Anti-Corruption Commission (NACC) to ensure there are very few public hearings of the Commission. It’s the threshold used by Dreyfus to curb the effectiveness of the NACC, and public confidence in it.

The public will not get to see the work the NACC is doing (or not doing) nor how it is doing it.

Rex Patrick: “exceptional circumstances” choke National Anti-Corruption Commission

The words, sadly, do infect the NACC Act, and it seems Dreyfus wants to spread the infection elsewhere.

Parliamentary Dodge

In the last sitting of Parliament, independent MPs Andrew Wilkie and Kylea Tink pressed the Attorney-General to explain why he wasn’t exercising his powers under the Judiciary Act in the poorly thought through prosecutions of David McBride and Richard Boyle. That brought about a second attempt at deceit, an attempt that might reasonably be construed as misleading the Parliament.

In response to a question from Wilkie, Dreyfus reinforced the false ‘exceptional circumstances’ claim and then tried to shut down debate on the issue saying, “As Mr McBride’s proceeding and Mr Boyle’s proceeding both remain ongoing, it’s inappropriate for me to comment further on the particulars of their matters … “

In effect, he was suggesting the Parliament ought not to be talking about the exercise of this power as Attorney-General to save McBride and Boyle because the Courts should be left to do their job without political influence.

But that just ignores the High Court’s more proper view that the Courts shouldn’t have anything to do with the exercise of the power to discontinue prosecutions. In the 1996 High Court case of Maxwell v The Queen, Justices Gaudron and Gummow stated:

“The integrity of the judicial process – particularly, its independence and impartiality and the public perception thereof – would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.”

Wilkie raised the exercise of the power to drop the prosecutions in the House of Representative because that was the appropriate place to raise it. The Attorney-General is solely responsible to the Parliament for the exercise of the Section 71 power.

Dreyfus tried to gag the debate with a sub-judice claim, but he was wrong in trying to do so. Perhaps he’s now too much a politician and cares only about the prestige but not the substance of his role as First Law Officer of the Commonwealth.

Agency Interests or Public Interest?

After attempting to blow the whistle within the Defence Department and having had that whistle fall on deaf ears, David McBride exposed war crimes committed by a small cohort of Australian soldiers in Afghanistan. The Brereton Review has gone on to confirm unlawful killings took place there, along with other abhorrent conduct.

After attempting to blow the whistle internally on the egregious use of garnishee notices by the Australian Tax Office, and after they botched the investigation into his claim, Richard Boyle exposed the ATO’s misbehaviour externally. The Inspector General of Taxation later investigated the claims and found there were ‘anomalies’ in the use of the garnishee notices inside the very office Boyle worked in.

McBride and Boyle have both been vindicated. Yet both are being prosecuted by the Director of Public Prosecutions under referrals from the very agencies they blew the whistle; It’s those agencies that think that exposure of highly inappropriate, indeed criminal conduct within their organisation is not in their interest. They set in train the persecution of the whistleblowers.

And it appears that Dreyfus, captured by the ATO, Defence and his own bureaucrats, confuses the interest of the agencies with the public interest. They’re not the same thing.

Spies Like Us: how natsec and Attorneys-G meddle with justice, whistleblower David McBride

L’affaire Dreyfus…

Dreyfus has become a huge disappointment to his supporters. In opposition, he talked long and loud about accountability and transparency, about dealing with corruption and the importance of whistleblowers. It’s a very different story in government.

Sadly, Dreyfus lacks the courage and judgement required of him as the minister who exercises supervision over the administration of justice in our country.

Mark Dreyfus is Australia’s Attorney-General. But he doesn’t seem to have two key attributes that he needs to fulfil the role of First Law Officer; an understanding of the law, and an appreciation of what is right, and what is plainly wrong – like the prosecutions of McBride and Boyle.

He’s an Attorney-General with no sense of justice.


Rex Patrick is a former Senator for South Australia and earlier a submariner in the armed forces. Best known as an anti-corruption and transparency crusader -

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