Prime Minister Anthony Albanese lagging on whistleblower protections
OPINION | Democratic Freedoms
Two years ago yesterday, the ACT Court of Appeal handed down a landmark judgment in defence of truth and transparency in our democracy. There's one problem: to this day it remains secret.
By Kieran Pender
Senior Lawyer
Human Rights Law Centre
Two years ago yesterday, the ACT Court of Appeal handed down a landmark judgment in defence of truth and transparency in our democracy.
There's one problem: to this day it remains secret.
In the prosecution of lawyer Bernard Collaery, who was alleged to have helped his client, Witness K, expose Australia's unconscionable espionage against Timor-Leste for commercial gain, the Morrison government sought to shroud the case in secrecy.
The secrecy was incredibly anti-democratic.
To successfully prosecute Collaery, the government would have had to admit that Australia spied on Timor. Yet the government refused to publicly concede or apologise for the fact that Australia exploited our newly-independent neighbour for an oil and gas windfall in the mid-2000s. So, the government sought secrecy: to tell a jury we spied on Timor, and yet continue to deny it publicly. "Neither confirm nor deny," in the intelligence community lingo.
The trial judge, David Mossop, felt bound by national security law which tilted the scales in favour of the government's wishes. A secret trial was ordered. But on appeal, the Court of Appeal refused to cede to secrecy. It upheld Collaery's appeal and ordered that the trial go ahead in largely open court. It was a win for transparency, a win for democracy - a finding that, in effect, the government couldn't use secrecy to tell the court one thing but the public another.
Yet secrecy continues to trump transparency in the Australian government. Even after the new Attorney-General, Mark Dreyfus KC, intervened to end the prosecution, the Court of Appeal's judgment remains unpublished. The last government had gone to the High Court in an attempt to keep parts of it secret. The new government, after dropping the case, withdrew the High Court appeal but made a new application to the Court of Appeal for the judgment to be partially redacted. That argument was heard a year ago. It has still not been decided.
A landmark judgment that said no to a secret trial itself being kept secret? The irony is astounding. It is unclear why the Chief Justice has not yet decided the case. A one-year delay is unusual, particularly for a narrowly-confined issue with immense public interest at stake.
Dreyfus should never have sought to continue Morrison's reign of secrecy in this case. But given he has, the public is entitled to answers. Why did the Court of Appeal refuse to order a secret trial? And why does the government - old and new - want the judgment redacted?
Unfortunately, the ongoing secrecy surrounding this case is indicative of the Albanese government's half-hearted approach to truth and transparency.
The National Anti-Corruption Commission is a landmark development for integrity in federal government, yet it is hindered by the secrecy imposed upon it. The crossbench bill for an anti-corruption commission included within it a dedicated whistleblower protection commissioner; this body was missing from the commission established by the government (despite Labor promising to establish a dedicated body to protect whistleblowers at the 2019 election).
The Albanese government has refused or delayed freedom of information applications - even on issues, like ministers' diaries, where they lambasted the last government. Reviews are underway in relation to secrecy offences and whistleblowing reforms in a range of areas, but these are yet to translate into concrete law reform and practical change.
While Dreyfus did the right thing by dropping the Collaery case, and should be commended for it, two other whistleblowers remain on trial. Next month, in the ACT Supreme Court, former Defence lawyer David McBride will go on trial for his role in the ABC's landmark Afghan Files reporting. McBride is the first person to face a jury in relation to Australia's war crimes in Afghanistan. The whistleblower, not an alleged war criminal.
Richard Boyle blew the whistle on wrongdoing at the tax office - unethical debt recovery practices that were targeting small businesses and individuals in acute distress. The scheme had hints of robodebt about it - directives to issue garnishes orders, to automatically take money out of taxpayer bank accounts, pushed by metrics not a proper consideration of individual circumstances.
Both McBride and Boyle thought they were doing the right thing - speaking up about government wrongdoing. Now both find themselves on trial for telling the truth.
McBride's truth-telling has been vindicated by the Brereton Report; Boyle's whistleblowing by no less than three independent inquiries. The Attorney-General can end the war on whistleblowers with the swish of a pen - but so far he refuses to do so. If people are punished for telling the truth, then secrecy will continue to thrive.
After scandals like robodebt, or the PwC tax saga, we ask ourselves why more people did not speak up, and, in the few cases where people did, why they weren't heard. But the wider context provides the frustrating answer.
Despite some positive change under the Albanese government, secrecy remains ascendant. Truth wilts in the darkness. It is easy to be pro-transparency in opposition. It is much harder to do so in government.
In Collaery's case, the ACT Court of Appeal stood firm against the tide of secrecy consuming Australia's democracy. Two years later, its reasons for doing so remain hidden from public view. That should trouble all of us.
Kieran Pender works in the Democratic Freedoms team at the Human Rights Law Centre. You can learn more about the team's work here.