Comment

Kieran Pender
On trial for telling the truth

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.

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.

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.

This article was first published in the print edition of The Saturday Paper on July 9, 2022 as "On trial for telling the truth".

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