Zoe Daniel (Goldstein, Independent) Share this | Hansard source

I welcome the intentions behind this legislation, and I strongly believe that enhanced protections for whistleblowers must be through the parliament in time for them to be in operation when the National Anti-Corruption Commission begins its work later this year. I welcome the Attorney-General's confidence that this will be the case.

I do remain of the view that these protections should have been part of the corruption commission legislation, and I still believe that serious consideration needs to be given to a whistleblower commission or agency. The form of that is up for discussion. It could, for example, be attached to the Commonwealth Ombudsman's office. I understand, but don't entirely agree, with the Attorney-General's view that making it the responsibility of a deputy commissioner of the NACC, as proposed by the member for Indi, would lead to confusion of roles.

However it's done, though, it's overdue. Make no mistake, the government's commitment to the establishment of a national anticorruption commission was a watershed moment in this place. It means that, for the first time, the Commonwealth will have caught up with the states in addressing the dodgy behaviour we've seen, especially over the last decade but going back to the actions of both complexions in the last century.

But, without complementary protections, the NACC risks being one-legged stool. As Justice Griffiths of the Federal Court said in a judgement in 2019 regarding an unsuccessful application by a whistleblower from within this building with regard to the Public Interest Disclosure Act:

The legislation might more accurately be described as technical, obtuse and intractable.

The previous government's raids on the home of journalist Annika Smethurst and the head office of the ABC, my former employer, had a chilling effect on legitimate investigative journalism. That appears, though, to have been the intent. But, as we've seen repeatedly in recent years, sunlight has been the best disinfectant, as the cliche goes, for governments across the country and of all stripes. As the Attorney-General said from opposition two years ago in response to a Senate report on press freedom:

Labor believes journalists should never face the prospect of being charged, or even jailed, just for doing their jobs;

Law enforcement agencies should never be raiding journalists just because they are embarrassing the government.

As a former journalist and foreign correspondent, I completely agree.

Whistleblowers underpin a lot of public interest journalism. Without whistleblowers, much of the hard-hitting journalism that we watch, listen to and read would never be published. This is a critical consideration in an environment of depleting trust in government and institutions and fragmenting democracy.

Federal whistleblowing law for public and private sector whistleblowers recognises the importance of the intersection between the media and whistleblowers by explicitly providing for whistleblowers to go to the media lawfully. But, despite the best intentions of the Attorney-General, who developed and introduced this act in 2013, the law is not working as well as it might. The ongoing prosecutions of Richard Boyle and David McBride provide the evidence. Here are two whistleblowers who spoke up about wrongdoing internally. Their concerns weren't addressed and so, in what they thought was compliance with the law, they went public to the ABC. Arguably because of the complexity of the act that we are discussing, both men are now on trial for doing what they thought was right and lawful in speaking to the media.

The Attorney-General recognised the need for regular review of his original for regular review of his original act by providing for a review after its first five years of operation. Very fortunately, that review went ahead in 2016 under a coalition Attorney-General and was conducted by the former head of the Australian Commission for Law Enforcement Integrity, Philip Moss. In consultation with the Ombudsman and the Inspector-General of Intelligence and Security, Mr Moss produced an authoritative report in 2016 with 16 major recommendations for updating the act. But nothing happened except, thanks to the Audit Office, we did learn about the Leppington Triangle deal, in which land was procured for Sydney's second airport under a dodgy deal at grossly inflated prices. Speaking of which, I do hope the Attorney-General takes note of recommendation 4 of the Senate enquiry, which I referred to earlier. The report, supported by all Labor senators at the time, recommended providing additional resources to the Audit Office so that work on such issues could be expedited without undermining or delaying its other important work.

We also found out about colour-coded spreadsheets. The Attorney-General says he is implementing the important recommendations of the Moss review except for those rendered redundant by the passage of time. Fair enough; a lot of water has either passed or frozen under the bridge over seven years. But anticorruption advocates argue it's not quite that simple. Transparency International, the Human Rights Law Centre and Griffith University's Centre for Governance and Public Policy welcome these amendments generally but argue that the amendments only address one recommendation in full and four in part from the roadmap outlining 21 actions needed to return Australia to global best practice for protecting whistleblowers. In particular, they are concerned, as I am, about the question of the intersection between whistleblowers and journalists and the vulnerability of both under the current regime.

I would like, therefore, to propose amendments to section 26 of the PID Act to add clarity and symbolic statutory recognition of the importance of journalists to whistleblowing. I have discussed this with the Attorney-General, and I know he has reservations about this. But such a definition, and what I am proposing, are not exclusive. The media is going through what I would say is a permanent revolution as the digital revolution rolls on. There are bloggers, there are websites and there are citizen journalists who are doing great work in holding the powerful to account. It's not my intention with my proposed amendments to make journalists the exclusive preserve of this important work of the fourth estate—whistleblowers would still be able to go where they will—but my amendments would enhance the protections for both reporters and whistleblowers.

I would therefore suggest inserting the definition from the Corporations Act into the PID Act. It reads:

journalist means a person who is working in a professional capacity as a journalist for any of the following:

(a) a newspaper or magazine;

(b) a radio or television broadcasting service;

(c) an electronic service (including a service provided through the internet) that:

(i) is operated on a commercial basis, or operated by a body that provides a national broadcasting service (within the meaning of the Broadcasting Services Act 1992); and

(ii) is similar to a newspaper, magazine or radio or television broadcast.

There has been criticism of this law for its lack of clarity. It's not a law that's user-friendly, as the Federal Court judgement I cited earlier demonstrates. The amendments seek to signpost to whistleblowers that journalists are an avenue to whom they can speak in appropriate circumstances.

The remainder of the text of my amendments seek to improve the operation of the external and emergency disclosure provisions, to act as a safeguard when whistleblowers don't tick all the highly technical boxes that they're currently required to but where their whistleblowing is in the public interest. As I have said, two are currently on trial; these provisions would provide an additional layer of certainty. While the Attorney-General would argue that it's difficult to define 'journalist' in this modern world, I would argue that if it's good enough for the Corporations Act then it's even more important here. Indeed, in an environment of disinformation, defining what a journalist is could be argued to be more important than ever, on a broader level.

I would also argue that the cases of Boyle and McBride show that other avenues often throw up roadblocks, and worse. I appreciate the consideration given to me and to the other crossbenchers by the Attorney-General and the Attorney-General's office as we address this important second leg of these anticorruption reforms. These amendments are a genuine attempt to address the scope of his intentions.

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