Public Interest Disclosure Laws Stall as Government Interest Reigns

High-profile whistleblowers prosecutions – or political prosecutions, as some prefer – have become a prominent feature of the rule of the Abbott/Turnbull/Morrison regime, along with the guarding of state secrets to the point that the proposition of open government is simply an unattainable ideal.

Millions have been spent on the prosecutions of Witness K and Bernard Collaery over conspiring to disclose the details of the Howard government’s crooked dealings, with a gap of at least five years between the alleged misconduct and the laying of charges, which suggests the settling of old scores.

The other prominent cases are the persecutions of former ADF lawyer David McBride and ex-ATO officer Richard Boyle. These men both followed the correct channels to raise issues internally, before going to the press to expose corruption, only to be punished for it all in the end.

Cases like these reveal that the protections set out in the Public Interest Disclosure Act 2013 (Cth) (PID Act) are falling short of their stated purpose. And despite the Morrison government announcing it would reform the laws last year, nothing has transpired so far.

Former attorney general Christian Porter did flag PID law reforms. Yet, this was the same chief lawmaker that greenlighted the prosecutions of K and Collaery in mid-2018. And he also applied national security information orders to their cases so as to further silence their revelations.

Reforms shelved

Rudd government AG Mark Dreyfuss oversaw the passing of the PID Act in June 2013, stating it provided a “comprehensive and effective framework of protection for public interest disclosures in the Commonwealth public sector”.

The bill’s explanatory memorandum said its aims were to “establish a framework to encourage and facilitate reporting of wrongdoing” amongst Commonwealth officers, ensure agencies investigate and respond to disclosures, and to protect those who blow the whistle.

The required statutory review of the public interest disclosure laws resulted in the 2016 Moss Report, which found that “by adopting legalistic approaches to decision-making, the PID Act’s procedures undermine the pro-disclosure culture it seeks to create”.

The nation’s leading authority on whistleblower protections Griffith University Law Professor A J Brown told Sydney Criminal Lawyers in July that the definition of “intelligence information” in the PID Act is “too broad”, which prevents an individual “going to a third party or going public”.

“So, equivalent wrongdoing in any other agency would be able to be disclosed to third parties or the public if it’s not adequately resolved within the system,” the professor explained.

“But if it’s intelligence information based on the broad definition, then automatically a whistleblower is prevented from being able to claim protection or immunity for having made that disclosure.”

The Moss report made 33 recommendations for public sector disclosure reforms, which included enhancing oversight of agency responses and outlining grounds for external disclosure. Although, on the definition of intelligence information, it suggests retaining it, as well as its current treatment.

Opaque governance

The Moss report was released in mid-2016, yet the Liberal Nationals government response was not forthcoming until last December. It agreed with 30 of the recommendations in principle and added that it considers some reforms could go further. But no draft laws have yet been released.

The long delay both in the report response and the move to legislate the reforms is hardly surprising, as, in the time between the delivery of Moss and the government response, the decisions to proceed against all four above mentioned whistleblowers were made.

And further laws preventing the public disclosure of government secrets were passed in mid-2018 in the form of the Espionage and Foreign Interference Bill. These included creating an offence relating to communicating or making available national security information to a foreign country.

Experts warned that this law could be applied to journalists, and, ultimately, see them facing the maximum penalty that applies to the offence, which is life imprisonment. The AG’s office indicated at the time that it’s possible to communicate such information via the “publication of news”.

Prior to Porter telling the National Press Club in November 2019 that his government would go further in reforming the PID Act than the Moss report recommends, the AFP carried out the press raids in an effort to scrutinise leaked public service information sources and silence journalists.

In June 2019, the AFP initially raided the home of News Corp journalist Annika Smethurst over her having published documents that revealed the secretaries of Home Affairs and Defence discussing proposals to turn foreign intelligence collection agency, the ASD, on domestic targets.

Then home affairs minister Peter Dutton denied the allegations, but later went on to publicly acknowledge the truth of the plan on a number of occasions. And while the details Smethurst published had nothing to do with PID laws, the ASD can now certainly assist in surveilling the public.

And the second AFP press raid took place a day later at the Sydney ABC office. It was carried out in relation to the publishing of The Afghan Files, which was based on documents that David McBride leaked, and had tried to internally raise issue over using correct defence force procedures.

A bipartisan mission

“Nobody in Australia much likes whistleblowers,” remarked then NSW police commissioner Tony Lauer back in the 1990s.

But the federal government’s pursuit of whistleblowers has nothing to do with some cultural distrust of “dobbers”, rather it’s all about hiding its own corrupt practices.

Architect of the current PID laws, Labor legal affairs spokesperson Dreyfus indicated earlier this week that if his government takes out the next election, it will act upon the Moss recommendations, and he lamented the fact that the Coalition has neglected to build upon his original framework.

But in a similar way to the lack of movement on other reforms – such as a bill of rights, war powers, a federal ICAC and the banning of pork barrelling – there’s less incentive to improve an area like public interest disclosure when it means the government of the day has to forgo some of its power.

Indeed, the 90-odd national security and counterterrorism bills that successive federal governments have passed since the 2001 9/11 attacks – which have facilitated the ever-broadening surveillance state – have been passed with bipartisan approval regardless of which side of politics is in office.

Image of David McBride supplied by Xenophon Davis