Andrew Wilkie, the Independent MP for Clark, tabled a motion in the House of Representatives on September 6, calling for Labor to use the power it has to “discontinue the politically-motivated prosecutions” of whistleblowers David McBride and Richard Boyle.
Heralded as heroes, McBride and Boyle continue to be pursued by the Anthony Albanese government, as Scott Morrison’s Coalition did before it.
These political prosecutions are designed not only to punish the pair but to deter others from exposing government corruption.
Attorney General Mark Dreyfus promised whistleblower reform while in opposition. He said it as outrage built over these prosecutions, along with a third involving ACT barrister Bernard Collaery.
Wilkie suggested to parliament that the merit of his motion was “self-evident” as the two men had exposed corruption in the public sector: McBride revealed war crimes, while Boyle uncovered an unlawful practice in the tax office.
But after a number of Independent MPs spoke in support, the motion was put and overwhelmingly voted down by the major parties.
It reveals that Labor is just as keen as the Coalition about making an example of these men to help silence would-be disclosers.
'Unjust, as far as they go'
Wilkie cited the Prime Minister’s words in relation to the Collaery case early last year. Albanese had said: “The idea that there should be a prosecution of a whistleblower for what’s a shameful part of Australian history is simply wrong”.
“I read that and think about Mr McBride, the whistleblower who shone a light on the alleged war crimes in Afghanistan. That he should be facing prosecution is simply wrong,” Wilkie said.
McBride is facing five national security offences in relation to leaked classified documents revealing war crimes in Afghanistan. Boyle faces 24 criminal charges regarding measures to gather evidence that the tax office was unlawfully accessing citizens’ accounts.
Dreyfus continues to state “the government is delivering on its commitment to ensure that Australia has effective frameworks to protect whistleblowers”.
And while he began amending the law last year, he only did so, after McBride and Boyle had attempted to apply it in defence.
“I do feel that the government and the Attorney General are failing us when it comes to not dropping the charges against David McBride and Richard Boyle,” Wilkie said.
He added that while the AG insists he can only intervene in “exceptional cases”, these prosecutions are the exception.
Justice denied
Section 71 of the Judiciary Act 1903 permits the federal attorney general to intervene in a prosecution and bring it to an end prior to case finalisation.
Dreyfus’ only under “exceptional circumstances” reading of this law is his own interpretation.
Dreyfus did apply the Section 71 power to the prosecution of Collaery in July of last year.
One obvious distinction between the three cases is that Collaery was fighting suppression orders placed on his case and was on his way to exposing six hidden matters publicly via court order. These would have been embarrassing for some public figures, as well as the government as a whole.
The Public Interest Disclosure Act 2013 (PID Act) is supposed to protect public servants who expose corrupt government practices. However, the 2016 Moss inquiry report into the Act found it to be convoluted and full of holes.
Dreyfus drafted these laws and oversaw their enactment a decade ago, during his previous stint as AG. He admitted in October 2021 that the laws were lacking on enactment and he planned to fix this if reelected to office.
Labor’s talk of reforming the PID Act, prior to the election, had been taken as a prospect that all three high-profile cases might be ended if Labor won. Instead, only Collaery was saved. The two other men were made to attempt to defend themselves under pre-amended law.
As Dreyfus told the chamber the day prior to Wilkie’s motion, in response to questioning from the Independent for Clark, he has ensured that priority PID amendments were enacted in June, and a public consultation process on overhauling the entire PID Act is on its way.
Punishing the truth-teller
Both McBride and Boyle blew the whistle on the understanding that there were public interest disclosure laws that would protect them. Both men are now facing charges for revealing wrongdoing in the public interest that could lead to them spending the rest of their lives behind bars.
Boyle argued his PID defence last October.
Yet, the laws were found not to provide him with immunity regarding the measures he took to gather his evidence to build his case. This is despite the Australian Tax Office having brought an end to the unlawful garnishee practice he exposed.
The former ATO officer launched an appeal of this decision last month: the outcome is yet to be announced.
In terms of McBride’s PID defence, he was served another stark injustice when fronting up to court to argue it.
The former ADF lawyer arrived already aware that the prosecution was set to challenge whether his only two witnesses could testify, but then a public interest immunity order was placed on the case which meant the prosecution could remove any of his evidence.
Faced with this, McBride’s defence team had little choice but to pull the plug on the PID proceedings. The man who served two tours as a legal officer in Afghanistan on behalf of the country is set to stand trial from November 13.
These facts reveal that the authoritarian creep, gaining pace under a decade of Coalition rule, has not been brought to a halt with a change to Labor.
What is increasingly apparent is that the closure of open government and lack of justice is being advanced by both major parties.
[Paul Gregoire writes for Sydney Criminal Lawyers where this piece was first published.]