Rex Patrick: Government credibility on the line amid Boyle, McBride whistleblower trials

Relentless prosecution of whistleblowers David McBride and Richard Boyle may damage the credibility of Australia’s government on the world stage, writes Rex Patrick. Whistleblower protection laws need urgent reform.

“We are committed to ensuring that Australia has effective protections for whistleblowers”, the Attorney-General Mark Dreyfus KC proclaimed at an Australian Public Sector Anti-Corruption Conference in Sydney a week ago. With the skill of a seasoned politician, he did so with a straight face.

Dreyfus pledged his support for the protections knowing full well that the prosecutions of whistleblowers Richard Boyle and David McBride, by the organisations they blew the whistle on, continue relentlessly.

Boyle is in the courts facing criminal charges related to his disclosure of Tax Office abuse of garnishee powers. Enduring garnishee notices issued by ATO allow the Tax Commissioner to unilaterally and completely strip the bank accounts of businesses, leaving them unable to pay employee wages, superannuation, nor supplier. It’s a death warrant. 

After Boyle blew the whistle through the ABC’s 4Corners, the Inspector-General of Taxation (IGT) conducted a review into the ATO’s use of garnishee notices and found anomalies in the ATO’s Adelaide office, where Boyle had worked. The irony in the review is, after a botched investigation by the ATO into his initial public interest disclosure, Boyle went to the IGT – who did nothing.

McBride is also in the courts facing criminal charges for blowing the whistle on war crimes committed by a small group of Australian troops in Afghanistan. Although what he alleged was occurring would be embarrassing to the Army’s higher command, it’s not as though he was making things up. Since he blew the whistle the Brereton Review found of operations in Afghanistan: 

There is credible information of 23 incidents in which one or more non-combatants or persons hors-de-combat were unlawfully killed by or at the direction of members of the Special Operations Task Group in circumstances which, if accepted by a jury, would be the war crime of murder, and a further two incidents in which a non-combatant or person hors-de-combat was mistreated in circumstances which, if so accepted, would be the war crime of cruel treatment.

Last month, at the start of what was to be a four-day hearing of McBride’s whistleblowing defence, the government sprung a public interest immunity (PII) claim over parts of McBride’s evidence. The PII claim was made on national security grounds and has made it impossible for McBride to effectively argue his whistleblowing defence.

That’s right, the same government that expects us to believe the Government is committed to ensuring that Australia has effective protections for whistleblowers has emplaced an impenetrable barrier in the way of McBride’s whistleblower defence.

Meanwhile, no Australian soldier has yet been prosecuted for war crimes in Afghanistan.  Only the whistleblower has been targeted.

Attorney-General Mark Dreyfus could, at the stroke of a pen, end the persecution of Boyle and McBride. Section 71 of the Judiciary Act grants him a power to decline to proceed further in indictable prosecutions. The power is provided to ensure the Attorney-General can discharge his ultimate responsibility to Parliament and to the people for the conduct of the prosecution process.

Dreyfus used this power in relation to whistleblower Bernard Collaery, who blew the whistle on the Howard Government’s defrauding of Timor-Leste of its oil and gas resources – through spying on Timor’s sea boundary negotiating team in 2004. No-one should mistake the use of his powers to stop Collaery’s prosecution as an act to protect a whistleblower, rather it was used because a failure to do so would have significantly complicated Australia’s ongoing relationship with Timor-Leste. 

Spies Like Us: how Timor’s oil and gas delivered justice to Bernard Collaery

 

Earlier this month the International Whistleblower Network, a coalition of national and international whistleblower protection experts, wrote to Mr Dreyfus. In comparing Boyle and McBride to Collaery’s case, they stated:

The cases of whistleblowers Mr Boyle and Mr McBride are equally exceptional and important. …  Despite raising matters of serious public concern – since vindicated by independent investigations – these prosecutions have continued. Urgent intervention is needed to address the injustice caused by these criminal prosecutions, to minimise the chilling effect of these cases and to fix Australia’s whistleblowing law to ensure such cases can never happen again.

They went on to warn:

Around the world, we once looked to Australia as a beacon in protecting and empowering public interest whistleblowers. If Australia proceeds to prosecute and imprison public officials who speak up about government wrongdoing, it will lose credibility on the world stage when it comes to transparency and accountability.

Reform is essential. 

Mr Dreyfus has foreshadowed the introduction of a new Bill to offer greater protection to whistleblowers. But will those protections be enough?

In what can only be described as a well-timed release, the Centre for Governance and Public Policy at Griffith University, the Human Rights Law Centre and Transparency International Australia have unveiled a Federal Roadmap for Protecting Australia’s Whistleblowers.

The report is short, but informative and punchy. It will serve as a baseline against which politicians, the media and the public can judge and the legislation that Dreyfus is about to table. Key recommendations include:

• the establishment of a Whistleblower Protection Authority to guide and support people through the whistleblowing process, 
• better training for government officials, 
• consistency for all whistleblowers, whether they work in the private or public sector, and
• ensuring whistleblower protection exists against all but ‘self-standing’, entirely unrelated offences.
• Enforcing a positive duty to protect whistleblowers
• Simplifying and upgrading proof requirements of remedies to detriment

Let’s just hope Dreyfus reads the report and takes heed of it recommendations.

As he rises to the table of the House of Representative to introduce new legislation and describe the road looking forward, the Attorney-General might want to stop the bus and deal with the carnage in the rear-view mirror caused by his own flawed 2013 Bill and a lack of attendance to grossly improper prosecutions that are still happening.

The Attorney-General’s credibility, and that of the Government, is at stake here. 

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Editor’s Note: Anthony Watson, the external Lendlease tax lawyer who refused to “look the other way” from the company’s $300m retirement village tax scam, has also told Michael West Media the whistleblower laws are not fit for purpose. Watson, formerly of Greenwoods & Herbert Smith Freehills, is suing Lendlease in the Federal Court. After 4 years, the ATO confirmed his original complaint of Lendlease doubling-counting tax deductions via a Tax Ruling.

Everything to play for: whistleblower’s home on the line as Lendlease makes merry with tax code