On trial for telling the truth
OPINION | Democratic Freedoms
Four years. Four million taxpayer dollars. More than a dozen judgements. Days and days in court – often in closed court, with the media and public barred from attending. On Thursday, it was finally over. The prosecution of Bernard Collaery came to an end.
By Kieran Pender
Senior Lawyer
Human Rights Law Centre
It was welcome news. A moment of long-overdue relief. In a short statement issued by his lawyers, Gilbert + Tobin, Collaery said “this is a good decision for the administration of justice in Australia”. It is that – and much, much more. This case was never in the public interest. It should never have been commenced – or maintained – and in secret at that. Thursday was a good day for Australian democracy.
In some ways it was apt that the decision to end the prosecution of Collaery came from Mark Dreyfus QC, the attorney-general. Dreyfus has long championed better protections for whistleblowers – ever since he chaired the house of representatives’ legal committee, which inquired into whistleblower protections in 2009. Four years later, as attorney-general in the Gillard government, Dreyfus was responsible for the federal whistleblowing law, the Public Interest Disclosure Act.
Whistleblowers make Australia a better place. From abuse in offshore detention to misogyny in parliament, from misconduct in the banking system to potential war crimes in Afghanistan, we can achieve change and accountability when we know the truth. Without the truth, we are blindfolded to injustice and iniquity.
Every day these other prosecutions remain alive, democracy in Australia suffers. The cases send a chilling message to prospective whistleblowers: don’t speak out or you will pay the price.
But after almost a decade of Coalition government, Dreyfus returned to the role of attorney-general at a time when whistleblowers in Australia are under attack. They are being prosecuted for telling the truth. The PID Act is in disrepair, neglected by the past government. The attorney-general has his work cut out for him if he is to reverse this erosion of whistleblower protections and our democracy.
On Thursday, he made the first step in that direction – guided, no doubt, by the beliefs he developed more than a decade ago. It is a start. But there is still some way to go.
Richard Boyle is at once a compelling example of the importance of whistleblowing, and one of two remaining whistleblowers in Australia currently on trial. With the first part of his case set to begin shortly, his circumstances deserve closer scrutiny.
Boyle was working at the Australian Taxation Office in Adelaide in 2017 when he became uneasy. The ATO has immense, almost unchecked powers over everyday Australians. The agency can raid homes, take money from bank accounts and disregard the presumption of innocence.
Boyle grew concerned about the way in which the agency was using its debt recovery powers against small businesses. So, he made an internal disclosure under the PID Act. Boyle alleged that a toxic culture within the ATO was seeing staff instructed to use enduring garnishee notices – whereby the agency can seize funds from the bank accounts of taxpayers – in an unethical manner, sometimes without notice to the taxpayer or consideration of their personal circumstances.
The disclosure was rejected by the ATO – it concluded there was nothing untoward, although a senate inquiry later described the ATO’s investigation as “superficial”. Two months later, Boyle went to the Inspector-General of Taxation. Once again, there was little progress. In the meantime, the ATO offered Boyle a settlement deal, contingent on him signing a non-disclosure agreement, to resolve code of conduct allegations made against him.
Exasperated, Boyle went to the media, one of several whistleblowers to form part of a major ABC–Fairfax investigation into the tax office. Reported by award-winning journalist Adele Ferguson, the investigation underscored the human cost of the aggressive, unethical debt recovery revealed by Boyle. “How can you describe someone who’s trying to destroy your livelihood and destroy your way of life? I’d call that evil,” one small business owner told Ferguson. Another added: “Dealing with the ATO, I’ve never come across such a mongrel bunch of bastards in my entire life.”
About 18 months after Boyle’s disclosure, in March 2019, the inspector-general released a review into the ATO’s uses of garnishee notices and accepted that “problems” had arisen. Boyle was vindicated. This finding has since been reaffirmed by a senate inquiry and a review by the Australian Small Business and Family Enterprise Ombudsman, which found that use of garnishee orders was “excessive” with “devastating” consequences for small businesses.
In the interim, however, Boyle was charged with a range of criminal offences relating to his whistleblowing. He faces a lengthy term of imprisonment if convicted. Boyle has pleaded not guilty.
The first part of the trial begins in Adelaide in two weeks. Boyle is arguing that the PID Act gives him immunity from criminal prosecution because he blew the whistle consistently with the statutory regime – which allows disclosure to the media if internal avenues prove insufficient. It is the first time this element of the PID Act has been used, making it a critically important test case.
Even if Boyle wins, though, the costs have been enormous – financially and emotionally. The case was previously delayed while Boyle battled with depression. He has told The Sydney Morning Herald he has almost “died from the stress”, adding: “It’s taken a huge toll on my mental health. I couldn’t work. I couldn’t sleep and my health spiralled into what I describe as a devastating situation.”
If his defence this month is unsuccessful, he will go on trial in October for telling the truth.
Dreyfus’s decision on Thursday to drop the prosecution of Bernard Collaery is a welcome start. But it is a matter of one down, two to go. Boyle and also David McBride, who blew the whistle on potential war crimes committed by Australian forces in Afghanistan, remain on trial.
Just as the Collaery case was contrary to the public interest, so too are these other prosecutions. Dreyfus has the legal authority to drop them – as he demonstrated on Thursday. He must exercise that power. Every day these other prosecutions remain alive, democracy in Australia suffers. The cases send a chilling message to prospective whistleblowers: don’t speak out or you will pay the price. If we are to begin to address the harm caused during the past decade, the new government must end these prosecutions.
Despite his position in the Collaery case, which he had telegraphed before the election, there are indications that Dreyfus is unwilling to intervene in the other cases. In a letter sent to Rex Patrick and recently posted by the outgoing senator on Twitter, Dreyfus noted in relation to the Boyle case that the Commonwealth Director of Public Prosecutions “takes decisions about the commencement of prosecutions independently of government” and that his power to discontinue proceedings “is reserved for very unusual and exceptional circumstances”.
In some respects, the Boyle and McBride prosecutions are even more problematic than Collaery’s, given both attempted to comply with the PID Act – speaking up internally first, then to an external authority, and then to the media, only to find themselves facing imprisonment for doing the right thing. The two remaining prosecutions – both also unusual and exceptional – must be dropped.
Reform to the PID Act must come next. When the law passed in 2013 it was a work in progress, so Dreyfus built in a statutory review, which reported in 2016. The Moss review found the experience of public sector whistleblowers was “not a happy one” and that a range of amendments to the PID Act was required. The prior government ignored this review for four years, belatedly acknowledged it in December 2020, and then did little to progress its recommendations.
In an interview with the ABC last week, Dreyfus said PID Act reform would be before parliament in the “coming months”. That time frame is encouraging. It is now almost a decade since the law was enacted, and six years since the Moss review reported. We cannot wait any longer.
Finally, the establishment of a national anti-corruption commission presents a landmark opportunity to empower Australian whistleblowers through the creation of a whistleblower protection commissioner. Such a body, designed to work with whistleblowers and government departments to ensure whistleblowers are protected, was a central recommendation of a 2017 parliamentary review into whistleblowing. It also formed part of Labor’s 2019 election platform and was contained within the crossbench-led federal integrity commission bill, which Labor voted for in the senate.
Creating a dedicated whistleblowing authority is an eminently good idea. Such a body, with oversight of public and private sector whistleblowing, must form part of the government’s anti-corruption legislation, which it has promised to enact by the end of the year. Doing so will unlock the unrealised potential of existing whistleblowing law and ensure that a national anti-corruption commission is a success.
Mark Dreyfus has done more than most in Australian politics to protect, support and empower whistleblowers. For that he deserves recognition and gratitude. His belief in the importance of whistleblowers is no doubt genuinely held and Australia is a better place for having someone of that view as first law officer.
But Thursday’s decision to drop the Collaery prosecution must be the beginning, not the end, of the new government’s efforts to protect and empower Australian whistleblowers.
The government has wrapped this case in so much secrecy, and has picked so many obscure procedural battles, that it can be almost impossible to keep up … All of this – a dozen interlocutory judgements, 50 or so court hearings – has been instigated by the federal government against one man.
Australia’s government has never admitted this, although it is widely accepted as true. We have never apologised to the Timorese. Instead, the government approved the prosecutions of Collaery and Witness K and has done all it can to keep the cases from the public eye. (K pleaded guilty to a lesser charge earlier this year, and was given a suspended sentence.)
The purpose of all this secrecy was spelled out last June, in a judgement of Justice David Mossop of the ACT Supreme Court, granting the attorney-general’s request for a largely secret trial. The crux of what the government wanted, wrote Mossop, was to keep secret “the evidence led by the Crown that establishes what part of the matters communicated by Mr Collaery were true … By this mechanism the Attorney‑General hopes to maintain a position of ‘neither confirm nor deny’ (NCND) in relation to the subject matter of the [redacted].”
Albeit obscured by legalese, this is a stark observation. In other words, in order to successfully prosecute Collaery the government will have to admit in court that it spied on Timor-Leste. This is because it is not a crime to make things up and tell journalists, so the information Collaery is alleged to have communicated must be true. The government does not want to admit that publicly, so it has sought secrecy to allow it to deceive the Australian people, to say one thing in the privacy of a closed courtroom and another thing in public. As the government seeks to shroud the Collaery trial in secrecy, the deck is stacked in its favour: the relevant law, the National Security Information Act, insists that judges give “greatest weight” to the opinion of the attorney-general.
Collaery appealed Justice Mossop’s decision. The appeal was heard behind closed doors. Observers, including myself, were marched out within minutes. In early October, the ACT Court of Appeal accepted Collaery’s argument, holding that most of the trial should be in open court. In an eye-catching summary, the court warned that a secret trial could undermine public confidence in the justice system. “Open hearing of criminal trials was important,” the summary reads, “because it deterred political prosecutions.”
That should have been the end of the matter. Three senior judges told the Australian government that secrecy in this case might undermine public faith in our judiciary. But it is at this juncture that this deeply disturbing case has taken an even more Kafkaesque turn.
Collaery is now battling the attorney-general on two separate fronts. First, in relation to this critically important Court of Appeal judgement, the government applied for large swaths of the judges’ reasons to be redacted before they were released publicly. They want parts of a judgement that said no to a secret trial to itself be kept secret.
Last month, ACT Chief Justice Helen Murrell heard arguments about the extent of redactions. On the day Murrell was due to release the judgement – partially redacted, but apparently not sufficiently for the government’s liking – Attorney-General Michaelia Cash’s lawyers asked for a delay so they could consider appealing to the High Court. Not in relation to the judgement itself, but about the extent of the redactions. The absurdity is breathtaking.
The other front in this ongoing saga concerns secret evidence. When the parties were arguing about the extent of secrecy before the trial judge, Mossop, back in 2020, the government sought to use secret evidence – that Collaery could not see – to persuade Mossop about the necessary secrecy to be applied. Mossop decided he could reach his decision without determining whether to accept secret evidence.
But now that the Court of Appeal has overturned Mossop’s initial decision, the attorney-general wants another bite of the cherry. Her lawyers are before Mossop again, arguing that the existing evidence (which was secret from the public at large, but at least visible to Collaery) should be supplemented with new, super-secret evidence (which not even Collaery can see). The attorney-general says that on this basis the judge should remake the decision, and allow the trial to go ahead in secret, despite what the Court of Appeal said.
If at this point you are confused, you are not alone. The government has wrapped this case in so much secrecy, and has picked so many obscure procedural battles, that it can be almost impossible to keep up.
This latest fight on secret evidence was in court on Friday. Whatever Mossop’s decision, it will almost certainly return to the Court of Appeal, and could end up in the High Court. An actual trial, before a jury, whether in secret or not, is unlikely to be heard until 2023 at the earliest.
All of this – a dozen interlocutory judgements, 50 or so court hearings – has been instigated by the federal government against one man. Collaery strikes a brave figure, calling out injustice inside the courtroom and out. But the process, with no end in sight, has evidently taken a toll. He is up against the might of the government, which has spent almost $4 million in taxpayer dollars on legal fees in this and the Witness K case. In Collaery’s corner are a group of distinguished lawyers and barristers working for free, because they recognise the importance of this fight.
Even in isolation, the outcome is crucial. But the chilling nature of the Collaery prosecution is compounded when set against a backdrop of creeping secrecy and surveillance. Our journalists are being raided and our whistleblowers are on trial – not just Collaery, but also David McBride, who blew the whistle about alleged war crimes in Afghanistan, and Richard Boyle, who spoke up about misconduct at the tax office. In both cases, the whistleblowers thought they were doing the right thing, following the letter of whistleblowing law. Now they face jail time for speaking up in the public interest.
While overseeing these prosecutions, the government has delayed crucial reform to whistleblowing law that might prevent history repeating. An independent review called for urgent reform in 2016. Four years later, last December, the Morrison government belatedly accepted the review’s recommendations. Another 12 months on, there has still been no substantive progress. Reform before the election is now unlikely. Instead, the government has been busy enacting new surveillance laws – that can be used against journalists and whistleblowers, with only patchy safeguards – and increasing the severity of secrecy offences.
In another particularly alarming case, the same law governing secrecy in the Collaery trial was used to ensure the prosecution of a former spy was conducted entirely in secret. The defendant, Witness J, was sent to jail – and not even the ACT Justice minister, with oversight of the prison system, knew about it. Secret trials are anathema in a robust democracy, where open justice is a paramount principle.
What, then, is to be done? For a start, the Commonwealth Director of Public Prosecutions should drop the prosecution against Collaery – and Boyle and McBride. Whether held in secret or not, there is no public interest in prosecuting whistleblowers. All three are alleged to have spoken up about matters in the public interest. No one has denied the veracity of their truth-telling. The CDPP has the power to discontinue a case at any time; that authority should be exercised.
Attorney-General Cash is steadfast in her position that the government will not intervene to end the prosecution, even though she also holds that power. In the abstract, her position has some merit – politicising an independent prosecutorial service is ill-advised. But the prosecution has been political from the start, given it required former attorney-general Christian Porter’s explicit consent. His predecessor, George Brandis, had sat on it. Discontinuing one prosecution, in these extreme and compelling circumstances, is not a carte blanche invitation for future political meddling. In this case, it is the right thing to do.
At a broader level, law reform is urgently needed – to our whistleblowing, secrecy and surveillance laws. We need laws that empower whistleblowers to speak up, let journalists do their job and ensure neither group suffers as a result. It is a deep shame that no such change looks likely before the next election. Whoever wins should prioritise reform, end the current government’s ceaseless quest for secrecy, and, if necessary, direct the CDPP to discontinue the Collaery prosecution. An apology to the people of Timor-Leste is also overdue.
Whistleblowers make Australia a better place. They should be protected, not punished – and certainly not prosecuted in a secret trial, with secret evidence and secret judgements.
Kieran Pender works in the Democratic Freedoms team at the Human Rights Law Centre. You can learn more about the team's work here.