Whistling in the dark
OPINION | Democratic Freedoms
What don’t we know because potential whistleblowers are too scared to raise concerns? What scandals remain hidden?
By Kieran Pender
Senior Lawyer
Human Rights Law Centre
Despite the attorney-general’s stated desire for a more transparent government, the prosecution of whistleblowers and inaction on meaningful protections continue
On a wintry Canberra evening in late June, the foyer of a plush Kingston hotel had filled to capacity with an eclectic mix of journalists, activists and passers-by. “It’s like the Mos Eisley cantina scene in Star Wars,” offered one observer. Besuited international journalists brushed shoulders with sign-holding activists who had long awaited this moment – the return of WikiLeaks publisher Julian Assange. “Free at last”, one sign read. A raucous cheer went up as Assange’s lawyer Jennifer Robinson and wife Stella Assange entered the room.
But while the Albanese government soaked up the plaudits for engineering Assange’s long overdue return, several of the signs on display that evening hinted that not everything was well on the home front. “Assange, McBride, Boyle”, offered one. Another particularly well-worn sign had the demand: “Fix the PID Act”. The WikiLeaks publisher may be free, but the Public Interest Disclosure Act – the whistleblower protection law for federal public servants in Australia – remains broken, as recent high-profile cases demonstrate all too well.
The dissonance between Assange’s much-hailed return and Australia’s own secrecy woes is striking. As his jet approached Canberra Airport, it passed over the local prison – presently home to former military lawyer David McBride, sentenced in May to almost six years’ imprisonment for leaking documents (with a non-parole period of two years and three months). The harshness of McBride’s term seems particularly acute when compared to one of the few other secrecy cases to go to trial in recent decades: a spy who gave classified documents to a sex worker to sell to a foreign embassy, in the mid 2000s, only served six months behind bars. McBride’s crime was giving documents to the national broadcaster, which help formed the basis of the landmark “Afghan Files” reporting on war crimes committed by Australian forces in Afghanistan.
Assange’s lawyer Robinson made the connection explicit at a press conference at parliament the following day. “I think it’s important that everyone continues to rally around the free speech issues that are so important in this case, and continue to demand better free speech protections for journalists here in Australia and the US, and for whistleblowers,” said the London-based Australian barrister. “And with that I want to recognise David McBride, who is in prison here in Australia for having revealed information about war crimes in Afghanistan. It is unacceptable he is in prison and I cannot stand here today to talk about free speech without mentioning him.”
Assange’s release also came just a week after tax whistleblower Richard Boyle lost an appeal from a ruling that he is not protected under whistleblowing law. Boyle’s case is tragic. While working as a public servant, the South Australian had become concerned about the Australian Tax Office’s indiscriminate use of garnishee notices (which seize money directly from taxpayer accounts). Without proper regard for each taxpayer’s circumstances, Boyle and his colleagues were being pressured to meet revenue targets by issuing numerous notices during what was referred to as an “hour of power”. In some cases, the notices were being used against women escaping domestic violence, or small business owners with serious health issues (some reported being suicidal as a result of the ATO’s heavy-handed tactics).
Boyle spoke up internally, to no avail (the Court of Appeal noted that his internal whistleblowing “was not dealt with appropriately”). He spoke up to the tax ombudsman, and as a last resort went public – through a joint Fairfax/ABC investigation. In the days before the story went to air, in early 2018, Boyle’s apartment was raided. Ever since he has faced prosecution.
The perverseness of Boyle’s case is that he is being prosecuted not for blowing the whistle publicly (which is lawful under the PID Act in certain circumstances), but for his conduct before he blew the whistle internally: taking photos of taxpayer information, recording some work conversations and sending some of this material to his lawyer. That is also why the South Australian District Court, and now the Court of Appeal, has decided he is not protected by whistleblowing law. Despite accepting that Boyle “is a whistleblower as that term is commonly understood”, the courts have adopted a narrow interpretation of the whistleblowing immunity: applying it only to the actual act of whistleblowing, not any preparatory conduct (no matter how closely related).
So, none of the wrongdoing of which Boyle is accused was ultimately part of his public whistleblowing. Boyle is alleged to have unlawfully taken photos of records and recorded conversations to use as part of his internal whistleblowing. And that whistleblowing has been vindicated by the tax ombudsman, the small business ombudsman and a Senate inquiry. Yet Boyle remains on trial. Unless he appeals to the High Court, he will face a jury in early September, and the distinct possibility of jail time (he has pleaded not guilty).
When the Albanese government took office, it took decisive action to end another whistleblower injustice of the Coalition era – the case against lawyer Bernard Collaery, who had helped his client, Witness K, expose Australia’s ruthless espionage against Timor-Leste. The attorney-general, Mark Dreyfus KC, dropped the Collaery prosecution with the flick of a pen in July 2022. But he has refused to act in the Boyle or McBride cases.
Nor has progress on whistleblower protection reform been swift. Mid last year, parliament passed initial reform to the PID Act, to coincide with the commencement of the National Anti-Corruption Commission. These changes were important, but they are minor and technical, largely focused on the practical operation of the scheme. They are not the complete rewrite of the scheme that the government promised.
Whenever a scandal hits, expert inquiries, parliamentary committees and royal commissions seem to stress the importance of whistleblowers and recommend stronger protections. The Brereton Report into war crimes in Afghanistan hailed the whistleblowers who had contributed to it, as did the robodebt royal commission. Following the aged care royal commission, stronger protections for whistleblowers in the aged care sector are in the works. The PwC leaks scandal has already precipitated better laws for tax-related whistleblowers. A more wide-ranging review of corporate whistleblowing is about to begin.
But when it comes to practical protections and assistance that will meaningfully help people speak up, we have so far seen little progress. At the 2019 election, the Labor Party promised to establish a whistleblower protection authority if elected – a body to oversee and enforce whistleblowing laws and support whistleblowers. Now the government is only promising to consider whether such a body is needed; it did not support a crossbench proposal to include the authority within the National Anti-Corruption Commission.
My team and I speak with whistleblowers every day. They tell us over and again about the chilling effect of the prosecutions, and their fear of speaking up without strong laws and robust support. What don’t we know because potential whistleblowers are too scared to raise concerns? What scandals remain hidden?
The prosecution of whistleblowers and inaction on meaningful protections are only part of Australia’s growing failure of transparency. Since the Australian Federal Police’s 2019 raids on the ABC and a News Corp journalist, there has been increased scrutiny of the proliferation of secrecy offences in Australian law. Two parliamentary inquiries expressed concern at the sweeping secrecy reform enacted by the Turnbull government, while a recent review by the Attorney-General’s Department identified 849 secrecy offences and non-disclosure duties under federal law. That’s almost a thousand different ways in which the law criminalises the disclosure of government information.
Not even the staunchest defenders of transparency would deny the legitimate role of secrecy in our democracy. Self-evidently, intelligence agencies need it to do their job. But there is a balance to be struck, and the pendulum has now swung firmly to the side of opacity. A recent independent review highlighted considerable rule of law and human rights concerns within our secrecy framework. Some offences could see journalists and civil society advocates imprisoned for the mere receipt of confidential government information; others criminalise any leaking of information by any public servant, no matter how innocuous the information or whether the public interest is best served by disclosure.
What’s more, while secrecy is ascendant, transparency regimes are crumbling. Australia’s freedom of information scheme – once world leading – is now in tatters. Government departments routinely fail to meet legislatively mandated deadlines, or rely on dubious exemptions to redact documents beyond meaning. Delays in the scheme are not just frustrating, they undermine its utility. Good luck trying to get meaningful, timely information through an FOI request.
Two recent cases, both brought by former senator and self-described transparency warrior Rex Patrick, are indicative. In March, the Federal Court ruled that the longstanding practice of denying FOI requests after a minister leaves office was unlawful. That practice rendered FOIs moot after reshuffles and changes of government, and had significantly undermined the objective of the Freedom of Information Act. There had even been suggestions that outgoing ministers were shredding sensitive documents. The decision was a landmark moment for transparency. And yet the attorney-general, who while in opposition self-represented in FOI fights against the government, has lodged an appeal. A Guardian Australia headline summed up the strange state of affairs: “Labor fights for the right to shred documents if it loses office.”
In July this year, Patrick lost a case he’d taken to the Federal Court claiming that delays in FOI reviews at the Office of the Australian Information Commissioner were so bad as to be unlawful. In August 2020, he had lodged a request with the federal department of health for documents relating to border closures during the early days of the pandemic. The department refused access to several documents, so the following month Patrick sought a review from the FOI oversight body. At the time he began the litigation, in March 2023, his review request was still pending. Not only had it not been decided by the information commissioner, it had not even been allocated to a reviewer for consideration. As the trial judge observed: “Two and a half years is a very long period of time for the [review] to have remained, effectively, untouched.” But the delay was not found to be unlawful – by the judge, and then on appeal. “Recognising the delay is very lengthy, we nonetheless are not satisfied that this delay, although unfortunate, is unreasonable in the vitiating sense required [by administrative law],” said the appeal reasons.
Unfortunate is an interesting description for this sad state of affairs. In the litigation, the information commissioner blamed under-resourcing for the delays – the body has struggled since Tony Abbott attempted to abolish it while he was prime minister. Unable to pass the necessary legislation through the Senate, the Abbott government instead slashed the commissioner’s office to the bone. Although the budget has increased since, backlogs remain so bad as to render the scheme ineffective. Abbott got his wish.
Any of these issues would be cause for concern in isolation. But cumulatively, they represent a significant degradation of Australia’s transparency framework. Whistleblower protection, secrecy offences, freedom of information, press freedom… they all intersect to determine the level of accountability and transparency in our democracy.
During parliament’s penultimate sitting week before the winter break, Dreyfus was pressed on transparency. In Question Time, Sophie Scamps asked whether the government would commit to establishing a whistleblower protection authority; Helen Haines queried why the government was “dragging its feet” on whistleblowing reform. A week later, at the National Press Club, the attorney-general was pressed again. Dreyfus’s answers stuck to a consistent message: blaming the last government for inaction (“this is another area where the former government didn’t act”), highlighting last year’s amendments (“I brought a first round of reforms” – albeit minor and technical) and casting forward to promised changes ahead (“There’s a second round coming”). At the Press Club, the attorney-general’s interlocutor pushed back: “But do you have a timeline on that at all?” “Soon,” was all Dreyfus offered.
The Albanese government undeniably talks a better game on transparency than the Coalition governments before it. In a major speech in 2019, while opposition leader, Albanese insisted “journalism is not a crime. It’s essential to preserving our democracy. We don’t need a culture of secrecy. We need a culture of disclosure. Protect whistleblowers – expand their protections and the public interest test. Reform freedom of information laws so they can’t be flouted by government.” (The speech disappeared from Albanese’s website around the time McBride was due to be sentenced; after media enquiries, it was reinstated – with technical problems blamed.) Earlier this year, Dreyfus wrote an entire essay in this magazine about the need to restore trust in government through transparency and accountability.
But in the final analysis, governments are measured not by words but actions. And more than two years in, it feels increasingly hollow to blame the last lot for Australia’s ongoing secrecy crisis.
There are now only 10 months until the latest date for the next election. The government has been vague about whether the second, more substantial round of whistleblowing reform will be enacted before parliament rises. Promised reforms to secrecy offences are yet to be introduced, and some proposed changes could make the situation worse not better. The government has not yet formally responded to a Senate inquiry into the FOI framework, which raised significant concerns. All the while McBride remains in jail and the Boyle prosecution drags on. Unfortunate indeed.
As with all political issues, the current transparency agenda is a matter of choices and priorities. The Albanese government could choose to pursue robust whistleblower protection reforms, which would take Australia from laggard to world-leading once more. It could choose to establish an independent and well-resourced whistleblower protection authority. It could reform secrecy offences to better balance competing public interests, fix holes in the FOI framework and increase funding to the FOI watchdog. And it could pardon McBride and end the prosecution of Boyle. But so far, the Albanese government has chosen to do none of these things.
Transparency sits at the heart of our democracy. If we do not know what is done in our name, how do we exercise informed political judgement? If we do not know about wrongdoing and injustice, how can we demand accountability and justice? In a troubled world, transparency is more essential than ever.
The long-overdue return of Assange is a rare positive moment for transparency advocates in Australia, and the Albanese government should be applauded for the role it played. But any credit given must be tempered by the ongoing inaction on reform closer to home. The Albanese government talks the talk on transparency and whistleblowing. But they are fast running out of time to walk the walk.
Kieran Pender works in the Democratic Freedoms team at the Human Rights Law Centre. You can learn more about the team's work here.