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7am Podcast

Senior lawyer at the Human Rights Law Centre and contributor to The Saturday Paper, Kieran Pender on why the NACC isn’t designed to protect whistleblowers.

The anti-corruption commission has a weakness: whistleblowers.

Read Transcript

It’s the dawn of a new era in federal politics, with a brand new anti-corruption watchdog now operating and promising to help combat corruption in Canberra.

In its first 48 hours since opening on Saturday, the National Anti-Corruption Commission (NACC) had already received 44 referrals for investigation.

But there are concerns the way the NACC has been designed could mean it will struggle to meet the public’s expectations for exposing corruption.

Today, senior lawyer at the Human Rights Law Centre and contributor to The Saturday Paper, Kieran Pender on why the NACC isn’t designed to protect whistleblowers.

 

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Guest: Senior lawyer at the Human Rights Law Centre, Kieran Pender

Read Transcript
[Theme Music Starts]
 
##RUBY:
From Schwartz Media, I’m Ruby Jones. This is *7am*.
 
We’ve been promised a new era in federal politics. The National Anti-Corruption Commission has been opened by its brand new Commissioner, Paul Brereton.
 
##Archival tape – Paul Brereton:
“Above all, this Commission is the realisation of an aspiration of the people of the Commonwealth.”
 
##RUBY:
And between opening on Saturday and Monday morning, it had already received 44 referrals for investigation.
 
##Archival tape – Paul Brereton:
“We know that you are watching expectantly and we are very conscious that it is in your interests, and for your benefit, that we must exercise our functions.”
 
##RUBY:
But the way the NACC has been designed could mean it struggles to meet the public’s expectations that it really can clean up Canberra.
 
Today, senior lawyer at the Human Rights Law Centre, Kieran Pender, on why the NACC wasn’t designed to protect whistleblowers.
 
It’s Wednesday, July 5.
[Theme Music Ends]
 
##Archival tape – Speaker:
“Thanks, everyone. I think we will commence. Today, can I welcome the representative from the Human Rights Law Centre, Mr. Pender, who's going to give evidence today.”
 
##RUBY:
So, Kieran, the National Anti-Corruption Commission officially began operations this week, and last year when the government was actually drafting legislation for this new body, you appeared before a parliamentary committee in Canberra to talk about what were, in your view, shortcomings in this draft bill. So tell me a bit about that inquiry and what your concerns were. 
 
##KIERAN:
So I remember this really well because I was in hospital with appendicitis, when I got this email from the Joint Select Committee on the National Anti-Corruption Commission legislation asking me to appear at this hearing. 
 
##Archival tape – Kieran Pender: 
“I regret that I was unable to make a written submission to the committee, which I intended to do so before being unexpectedly preoccupied with appendicitis last week.”
 
##KIERAN:
And I'd literally just had my appendix taken out. But I thought this was so important because without whistleblowers bringing information to the commission, it won't be able to do its job. At the moment in Australia, we don't have the laws and processes in place properly protecting whistleblowers, and so this was a great opportunity to get that right. And if we think about so many of the big instances of corruption and misconduct in Australia, so many of them, you know, even just in recent times; alleged war crimes in Afghanistan, the banking royal commission sparked by whistleblowers, mistreatment of refugees and asylum seekers, human rights violations, corruption, government misconduct, corporate misfeasance. So many of these big scandals have been triggered by people speaking up. And so we have to protect and empower those people to speak up to the NACC, or it won't be able to do its job.
 
##RUBY:
Right. So when you go to parliament to advocate for whistleblower protections, what do you say? What do you tell them needs to be done? 
 
##KIERAN:
So there's this idea that's been raised in the past, dating all the way back to the early 1990s. The idea of creating a body, a standalone body, to protect and empower whistleblowers, a Whistleblower Protection Commissioner or authority. So first recommended in the early nineties, again recommended in a parliamentary report in 2017. And then when the crossbench put up anti-corruption body bills, it included a whistleblower protection commissioner within it, which is a really important idea and a really important way to ensure that whistleblowers who contribute to the anti-corruption body are protected and empowered, not punished for doing so. 
 
##Archival tape – Kieran Pender:
“Unless the NACC can foster trust and confidence among such individuals, that they will be protected and empowered in speaking up, they will remain silent. The current NACC bill does the bare minimum when it comes to protecting whistleblowers, and it must go further.”
 
##KIERAN:
I like to compare it to other bodies. You know, if you're being underpaid at work, if you're being mistreated at work, you can go to the Fair Work Ombudsman. If you're being harassed or discriminated against at work, you can go to a Human Rights Commission. But if you want to blow the whistle, you've got nowhere to turn. And so that's why setting up a Whistleblower Protection Commission is so important, and the creation of the National Anti-Corruption Commission was a prime time for it to be done. 
 
##Archival tape – Kieran Pender: 
“This would be a body that oversees and enforces whistleblowing law, but it would have a central critical function within the NACC protecting and empowering NACC whistleblowers. And I would submit that that is central to the operation and the effectiveness of this body.”
 
##KIERAN:
Unfortunately, that body was missing from the Government's legislation. It wasn't in the draft bill. And so, I went to the committee and said, look, this is the single most significant thing the government could do ,to protect and empower whistleblowers, would be to establish within the National Anti-Corruption Commission, an office dedicated to protecting whistleblowers who bring information to it, and whistleblowers in Australia more broadly. 
 
##RUBY:
And so what kind of response did you get then, when you raised that idea? 
 
##KIERAN:
Well, unfortunately, a whistleblower protection Commission is not in the bill that ultimately became the National Anti-Corruption Commission. The government has committed to a discussion paper this year about whether we need such a body. I think the need is evident and we should be getting on with talking about what it looks like and how it can be done. I think it's important we don't undersell the significance of the establishment of the NACC, the National Anti-Corruption Commission. But unfortunately, it's missing this critical element, robust protections for whistleblowers who go to it. You know, the bill does contain some limited provisions to protect people who bring in information. But that law is flawed, fatally flawed. The ability of people and the confidence of whistleblowers to go to the National Anti-Corruption Commission. to bring examples of wrongdoing and corruption, that's not there.
 
##RUBY:
Right. So you're saying that this body, the NACC, has been established and it, essentially, it relies on people coming forward, blowing the whistle on corruption to be able to function, but at the same time, it offers little protection for those who do. So, what are the potential consequences of that for someone who might want to come forward? 
 
##KIERAN:
Well, I just think people who see corruption will be concerned about whether or not they'll be safe in bringing information to the National Anti-Corruption Commission. Now, there are some protections there. It does fit into a wider framework, but that framework, at the moment, is not working. And so that's why it's so important we get this right. Now, the government has introduced a first phase of whistleblowing reform, it's promised more. But on the critical issues, it's not moving fast enough. And I think that leaves the NACC in a really awkward position because people will want to go to it, but they'll be afraid about whether they're going to be protected in doing so. And, right now, we have two whistleblowers facing prosecution. We have a number of whistleblowers in the courts with their employers suing them. We have a history and a lot of evidence showing that when whistleblowers speak up, too often they are punished. And we've got this new body opening its door saying, come to us and tell us about these issues. But a critical component of that, to ensure the people who bring the information to it are protected and empowered, not punished and prosecuted, is missing. 
 
##RUBY:
We’ll be back in a moment.
 
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##RUBY:
Kieran, can we talk a bit more about the way that whistleblowers in Australia have been, and still are, being treated in some instances? You mentioned the two whistleblowers who are being prosecuted; former military lawyer David McBride and Richard Boyle, who worked at the Tax Office. Tell me a bit more about what they exposed and the position that they still find themselves in now. 
 
##KIERAN:
Right now, two Australian whistleblowers are on trial. On trial for doing what they thought was the right thing in speaking up about government wrongdoing. 
 
##Archival tape – Laura Tingle:
“Richard Boyle's Adelaide home was raided by the Australian Federal Police. It was days after the former tax office employee spoke to ABC's Four Corners program about debt collecting tactics used inside one of Australia's most powerful institutions.”
 
##KIERAN:
So we have Richard Boyle, who worked at the tax office. He was concerned about unethical debt recovery practices at the tax office. He spoke up internally, he spoke up to the tax ombudsman and nothing was done about it. So as a last resort, he went to the media.
 
##Archival tape – Laura Tingle:
“Since blowing the whistle, he's now facing a staggering 161 years in prison.”
 
##KIERAN:
David McBride was a defence lawyer serving in Afghanistan and he followed a similar path. He was concerned about serious misconduct by Australian forces. He spoke up internally, to oversight bodies and, ultimately as a last resort, to the ABC. 
 
##Archival tape – Q&A:
“And they charged him for leaking information to the media. He admits that he gave information to the media because he exhausted all remedies available to him. David McBride faces life imprisonment, because that's what the penalty is. It's a limitless penalty.”
 
##KIERAN:
Both of these people thought they were doing the right thing. So federal whistleblowing law says, in certain circumstances, if you can't get anywhere internally, then you can speak up to the media. And yet both of these people are on trial for blowing the whistle on wrongdoing. 
 
The McBride case is particularly perverse because in November, he will face trial as the first person to face trial in relation to Australia's war crimes in Afghanistan. 
 
He's not a perpetrator, he's the whistleblower, and yet he's the first person on trial. 
 
##RUBY:
And the legal action against both of these men, it began under the Coalition government. But so far what we've seen is, is Labor is willing to continue those prosecutions. Tell me more about what the Albanese Government has said when it comes to these two cases. 
 
##KIERAN:
So I was really hopeful that the Labor government would end these prosecutions and they did get off on the right note. They dropped the case against Bernard Collaery, the lawyer who together with his client, Witness K, had allegedly blown the whistle on Australia's espionage against Timor-Leste. 
 
##Archival tape – Mark Dreyfus:
“Today, I have discontinued the prosecution of Mr. Bernard Colleary, under Section 71 of the Judiciary Act 1903. 
 
My decision was informed by our Government's commitment to Australia's national security, and our commitment to our relations with our neighbours.”
 
##KIERAN:
The Attorney-General, Mark Dreyfus, he's a strong proponent of whistleblower protections. He convened a roundtable early this year on press freedom. He agreed to recommendations coming out of the secret trial of Witness J to address, sort of, secrecy in our court system. And we've begun, the Government's begun, this work on whistleblower protection reform. 
 
##Archival tape – Mark Dreyfus:
“The Commission will not just investigate corruption after it happens, but will seek to prevent corruption as far as is possible. The Commission will be tasked with education and prevention functions. The Commission will provide guidance and information to support the public sector to identify and address vulnerabilities to corruption.” 
 
##KIERAN:
So there's a lot of good stuff happening and the Government is to be commended for that. But at the same time, these two cases continue. Dreyfus has consistently refused calls to intervene and discontinue the prosecutions of Richard Boyle and David McBride. He's refused to exercise that same legal power that he used to end Bernard Collaery's case, and he's also refused to do other things. So for example, in the Richard Boyle case, he was unsuccessful in relying on a whistleblower defence. He's now appealed. The Government was asked by different groups to intervene in that appeal and he's refused to do so. So there's these two prosecutions ongoing and they're really the canary in the coal mine. We've got some really positive stuff taking place, but for as long as two whistleblowers remain on trial, it significantly undermines good work by the government on transparency and integrity in this country. 
 
##RUBY:
Kieran, what does it say to you that just as the Government is trying to unveil this new era of anti-corruption and accountability through the establishment of the NACC, that they are still forging ahead with the prosecution of these two whistleblowers who really tried to bring on that kind of accountability? 
 
##KIERAN:
It's deeply frustrating. The Government has acknowledged these laws are broken, they need to be fixed and they've committed to fixing them. But at the same time, we're leaving these two men, who just tried to do the right thing, to their fate under these broken laws that they thought would allow them to speak up in the public interest. 
 
That's really unjust and significantly undermines transparency in our democracy. To be as simple as possible, the core point is both of these people expose government wrongdoing. No one denies that there was wrongdoing at the tax office, that was exposed by a number of independent inquiries. There's significant evidence that shows alleged war crimes committed by Australian forces in Afghanistan. But the two people who pointed that out, who made Australia a better place by exposing that wrongdoing… Those two people are on trial. That's not right.
 
##RUBY:
And just to come back to what's at stake here for the NACC. I mean, is there a risk, do you think, that it's being set up to fail here? That by not having protections, or enough protections, in place for whistleblowers, people won't feel like they can maybe give the evidence that they want to give and then the body won't be able to meet, what I think are, pretty high expectations of it from the public at the moment. 
 
##KIERAN:
The National Anti-Corruption Commission is a really important step forward for integrity in Australia. I don't want to underplay that. I don't want to, sort of, be seen as a downer. This is a good step forward, but it's not enough. The NACC won't be effective, it won't meet those expectations, if whistleblowers are not protected and empowered to go to it with credible information of wrongdoing, knowing that they will be safe in doing so, knowing that there are protections and knowing that the NACC has their back. Instead, these ongoing prosecutions, the failure to reform whistleblowing law, the failure to establish a whistleblower protection authority so far, as part of the NACC or as a separate body, leaves this significant risk that people who go to the NACC will be punished for it, will suffer. And that will have a chilling effect on people wanting to bring information of wrongdoing to light. 
 
So this is a good step forward, but it's missing this critical ingredient. And until we have robust whistleblower protections in Australia, integrity and transparency will be undermined. 
 
##RUBY:
Kieran, thank you so much for your time. 
 
##KIERAN:
A pleasure.
 
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[Theme Music Starts]
 
##RUBY:
Also in the news today…
 
The Reserve Bank has held the official cash rate at the current level of 4.1 percent.
 
It’s the second time in the current rate hiking cycle that the RBA has chosen to leave rates on hold.
 
In its statement, the RBA board said that further interest rate rises might be required in the coming months, but that they believe inflation has peaked.
 
And,
 
UK prime minister Rishi Sunak has criticised Australia, accusing the Australian men’s cricket team of breaching the spirit of cricket.
 
During the Ashes test series in London, Australian Alex Carey stumped Jonny Bairstow, when the England player walked out of his crease at the end of the over, sparking a debate about whether Australia followed the spirit of the game.
 
The British media has made several references to the word "cheat" on front and back pages.
 
I’m Ruby Jones, this is *7am*. See you tomorrow.
 
[Theme Music Ends]