Whistleblower protections wanted by voters on all sides

Australian Tax Office whistleblower Richard Boyle accepted a guilty plea last week, ending an almost decade-long and gruelling legal ordeal. In 2017, Boyle spoke up about unethical debt recovery practices at the tax office, internally, then to an oversight body, and ultimately to Four Corners. Several subsequent independent inquiries in part vindicated his actions.

While federal whistleblower protection laws likely protected Boyle’s whistleblowing to the media, he was instead prosecuted for steps he took to prepare to leak information, such as taking photos of some tax documents and recording some conversations with colleagues. Last year, the South Australian Court of Appeal ruled that whistleblowing immunity did not protect this prior conduct.

The court loss left Boyle facing trial in November this year. On Tuesday, Boyle told the court in Adelaide that he would plead guilty to four charges, one for each category of offending, as part of a plea deal that means the prosecution will not seek a custodial sentence.

It has been a harrowing process for the former debt collection officer, all for doing what he thought was the right thing: raising concerns about government wrongdoing. In the circumstances, the guilty plea seems the best of a bad situation — a way to avoid going to jail.

But the deal also underscores the injustice of the case. How was it ever in the public interest to prosecute a whistleblower for their preparatory steps taken? No taxpayer was harmed by what Boyle did — instead, several have thanked him. At worst, his offending was minor and technical, and yet government prosecutors pursued him for more than six years.

Barely 24 hours after Boyle pleaded guilty, the ACT Court of Appeal rejected war crimes whistleblower David McBride’s appeal against his conviction and nearly six-year term of imprisonment. McBride, a former army lawyer, leaked documents to the ABC that formed the basis of the landmark Afghan Files reporting. He is the first person to face prosecution in relation to Australia’s war crimes in Afghanistan.

In late 2023, McBride pleaded guilty after the Supreme Court rejected an argument that there was a public interest dimension to the offences he faced; he was imprisoned in May last year. McBride appealed both the public interest issue and the severity of his sentence; both were rejected on Wednesday. McBride’s lawyer has indicated a possible High Court appeal.

In the face of this unjust wave of prosecutions, public support for whistleblowing and protection reform has grown significantly in Australia. People have seen the headlines, watched the news of whistleblowers walking into court, and are outraged at the price they face for speaking up.

With support from the Human Rights Law Centre and Whistleblower Justice Fund, the Australia Institute undertook polling earlier this year that indicated a 12 percentage point increase in support for whistleblower protections over the past two years. Eighty-six per cent of Australians want stronger protections. That sentiment is remarkably multi-partisan, too, with only a one percentage point variation across voting intention. What other issue unites Coalition, Labor, Green, teal and One Nation voters?

The Albanese government must use its significant majority to stop the backsliding on truth, integrity and accountability. Michelle Rowland, the new attorney-general, inherits reform to federal public sector whistleblowing laws that had been started, albeit slowly, by her predecessor. The changes being considered include providing protection for preparatory conduct, reform that would avoid a repeat of Boyle’s predicament. This must be pursued urgently.

New Assistant Treasurer Daniel Mulino is responsible for a recently commenced review of private sector whistleblowing laws. Greater consistency and harmonisation between our public and private whistleblowing laws are essential, particularly as overlap between the public and private sector becomes more commonplace, with more outsourcing and government-related wrongdoing by private companies. The recent PwC scandal is just one example of the holes in the whistleblowing framework.

At the heart of both reviews, and any reform, needs to be better support for whistleblowers.

Thirty-one years ago, the first parliamentary review into whistleblowing in Australia recommended whistleblowing laws and an authority to oversee and enforce whistleblower protections and support whistleblowers. In time, the laws came. There are today nine different whistleblowing regimes under federal law. However, as we wait for a Whistleblower Protection Authority, whistleblowers continue to be isolated, prosecuted and even imprisoned. Many more prospective whistleblowers are watching on, fearful of the cost of courage.

The reelected Albanese government can’t change its past inaction on this subject, but it now faces a critical test to move forward in a new direction. This week should serve as a grim reminder that reform to protect whistleblowers is overdue.