Andrew Wilkie (Clark, Independent) Share this | Link to this | Hansard source

I seek leave to move the following motion:

That the House:

(1) notes that:

(a) Mr David McBride, a former military lawyer, is facing five charges relating to the disclosure of information that is undeniably in the public interest, including credible evidence of war crimes committed by Australian Defence Force personnel in Afghanistan;

(b) Mr McBride faces court on 13 November 2023, and will be the first person on trial in relation to alleged war crimes committed in Afghanistan and he faces the very real prospect of spending years in prison, simply for telling the truth, because of this Australian Government prosecution; and

(c) Mr Richard Boyle, a former Australian Tax Office official, is also facing the prospect of life in prison within the year, for revealing information about serious improper conduct within the Australian Taxation Office, which was also undoubtedly in the public interest; and

(2) calls on the Government to immediately intervene pursuant to the Judiciary Act 1903 and discontinue the politically-motivated prosecutions of Mr McBride and Mr Boyle.

Leave not granted.

I move, then:

That so much of the standing and sessional orders be suspended as would prevent the Member for Clark from moving the following motion:

That the House:

(1) notes that:

(a) Mr David McBride, a former military lawyer, is facing five charges relating to the disclosure of information that is undeniably in the public interest, including credible evidence of war crimes committed by Australian Defence Force personnel in Afghanistan;

(b) Mr McBride faces court on 13 November 2023, and will be the first person on trial in relation to alleged war crimes committed in Afghanistan and he faces the very real prospect of spending years in prison, simply for telling the truth, because of this Australian Government prosecution; and

(c) Mr Richard Boyle, a former Australian Tax Office official, is also facing the prospect of life in prison within the year, for revealing information about serious improper conduct within the Australian Taxation Office, which was also undoubtedly in the public interest; and

(2) calls on the Government to immediately intervene pursuant to the Judiciary Act 1903 and discontinue the politically-motivated prosecutions of Mr McBride and Mr Boyle.

The merit of this motion, I suggest, is self-evident. The last person who should be fronting court regarding alleged war crimes in Afghanistan is obviously the whistleblower David McBride. The last person who should be fronting court for the egregious behaviour in the Australian tax office is the whistleblower Richard Boyle. I'm reminded of a quote from then opposition leader Anthony Albanese, early last year, when referring to Witness K and Bernard Collaery. He made this point—and I'll quote the now Prime Minister: '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. That Mr Boyle is facing prosecution is simply wrong.

Equally, the urgency of dealing with this motion today, I suggest, is also self-evident, because every minute's delay in having these charges against the brave whistleblowers dropped is one more minute that those heroes stand accused of criminality. That is unjust, as far as they go.

Also, every minute's delay in dealing with this matter of having charges against whistleblowers dropped is sending a signal to every single Australian that if you are witness to misconduct in this country then the government will not support you but will come after you, will shut you down and will prosecute you. This is much bigger than just Mr McBride and Mr Boyle. This matter is relevant to every Australian and every Australian who is witness to misconduct. That's why we should suspend standing orders and deal with this matter immediately.

I'm pleased the Attorney-General is in the chamber, and I will start by saying I have immense respect for the Attorney-General. But 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. The Attorney-General cannot hide behind the fact that these prosecutions were launched by the Department of Defence and the Australian Taxation Office, and so they're matters for the tax office and the defence department to deal with. That is simply not the case because it is the Department of Defence and the ATO which created this injustice, and they can't be trusted to resolve it. That's why there is a pressing argument for why the Attorney-General should exercise his authority under the Judiciary Act to intervene and to see the charges dropped.

The Attorney-General might also argue that he can only intervene in exceptional circumstances. What on earth are these matters other than exceptional circumstances? The brave whistleblower who revealed evidence of allegations of war crimes in Afghanistan is the first person to front court regarding allegations of war crimes in Afghanistan. This is an exceptional situation. The fact is that the ATO whistleblower has been proven to be correct. I make the point again: Richard Boyle's allegations have been proven to be accurate. Is anyone else in the ATO fronting a court? No. The whistleblower is fronting a court, so these are exceptional circumstances. Because the government is failing to act, I think, sadly, it does discredit the good work the government is doing with regard to whistleblowers. It discredits it very, very seriously, and it does make me wonder, as a member of the community, as a member of parliament and as a former whistleblower, whether the government has its heart in supporting whistleblowers and improving the protections for whistleblowers.

In fact, when we look at where the rubber has hit the road already, we see that the amendments to the Public Interest Disclosure Act within the term of this government have been very minor. They're what an IT company might call a patch, and there is still no substantial re-engineering of the Public Interest Disclosure Act. There is still no talk of amending the whistleblower protections in the Corporations Act, and I think the attitude of the government is revealed very well in the Boyle case. Mr Boyle clearly has protections under the Public Interest Disclosure Act, but the government is arguing that the Public Interest Disclosure Act in Mr Boyle's case only applies to the act of blowing the whistle in speaking up and does not apply to the collection of evidence by Mr Boyle, which he had to do before he could blow the whistle. This is a remarkable turn of events, and I think it goes to the heart of the matter, and that is that whistleblowers are not respected and not celebrated and not protected in this country—not one bit. They're still regarded as troublemakers that must be shut down, and they're still regarded as people who must be punished as a deterrent to other people from speaking up.

We should laud these people, and we should support these people. We should debate this motion and deal with it today so the government can get on and drop the charges against David McBride and Richard Boyle. Where would we be without these brave whistleblowers? Where would we be if Toni Hoffman, a nurse, hadn't blown the whistle on Dr Patel at Bundaberg Hospital? Where would we be if Allan Kessing hadn't blown the whistle on gaps in security at Sydney Airport? Where would we be if Witness K and Bernard Collaery hadn't blown the whistle on the illegal spying on the East Timor parliament building? Where would we be without Alysha, who blew the whistle on the shocking criminality within the Tasmanian youth justice system?

Where would we be if Julian Assange hadn't blown the whistle on US war crimes, including revealing that grainy image of US Attack helicopters gunning down Iraqi civilians and Reuters journalists in Iraq in the early days of the Iraq war?

My point is we should be doing everything we can to celebrate and to support whistleblowers, otherwise we won't have whistleblowers—and they're an absolutely essential component of our democratic system. In fact until we have effective whistleblower protections, the National Anti-Corruption Commission will be much diminished because it will be the whistleblowers who will raise the allegations, the most serious allegations often, that the NACC will then be able to deal with. So it's not enough to say, 'We've established a National Anti-Corruption Commission,' because the job is not done until we fix the Public Interest Disclosure Act, fix the Corporations Act and establish a whistleblower commissioner. Then the job will be done. Then the community can have confidence that when people are witness to misconduct they can speak up and we won't get these repeats of this nonsense with David McBride and Richard Boyle.

I make the point again: David McBride is the whistleblower who revealed evidence of allegations of war crimes in Afghanistan and he will be the first person to front a court with regard to those war crimes, facing the prospect of years in jail. I make the point again: Richard Boyle raised allegations of terrible misconduct within the Australian Taxation Office. Those allegations have been found to be absolutely true and yet he is the only ATO officer who is now fronting a court and facing the prospect of a lifetime in jail. This is a nonsense. It has to be dealt with absolutely immediately. So I call again for a suspension of the standing orders so that we can have a proper debate about this. We can vote on it, and we can lay the foundation for the government to drop the charges against these two brave Australian whistleblowers.

Ian Goodenough (Moore, Liberal Party) Share this | Link to this | Hansard source

Is the motion seconded?

Kylea Tink (North Sydney, Independent) Share this | Link to this | Hansard source

I rise to second the member for Clark's motion to suspend standing orders as a matter of urgency so that this chamber can immediately debate the need for the Attorney-General to end the prosecution of whistleblowers Richard Boyle and David McBride. Every day the government lets the prosecution of these two men continue is another day it's having a chilling effect on anyone who is considering revealing unlawful and other wrongful conduct inside the Australian government because these prosecutions send a very clear message: to blow the whistle is to bring the full force of the law down on your on head and the cost of courage is too high. As we seek to drive greater transparency across the processes of governing, we should be embracing whistleblowers. Indeed, many comparable democracies reward those who are brave enough to speak out. But here in Australia, our current track record tells people that if you blow the whistle you'll be prosecuted.

To be fair the prosecutions of Richard Boyle and David McBride commenced under the prior coalition government, but it is the Albanese government that has allowed the prosecutions to continue. Richard Boyle blew the whistle in October 2017 on the egregious use of garnishee notices by the Australian Taxation Office. His public interest disclosure was rejected by the ATO. The Senate examined how the ATO investigated it and found the investigation into his claim was superficial. He didn't give up. In November he went to the Inspector-General of Taxation to try again, and when the inspector-general rejected his approach on jurisdictional grounds, he finally went to the media. Only after the ABC exposed the conduct in the ATO was any action taken.

Ironically, the then minister ordered the Inspector-General of Taxation to conduct an inquiry. In May 2019, the Inspector-General released his review into the ATO's use of garnishee notices, stating, amongst other things, problems did arise in certain localised pockets with the issuing of enduring garnishee notices for a limited period, particularly so at the ATO's local Adelaide site. Richard Boyle was vindicated, and yet the prosecution initiated in January 2019 continues.

David McBride raised concerns about the unlawful conduct of a small group of soldiers in Afghanistan. When his concerns went unaddressed, he went to the media. We now know from the Brereton review that what David McBride blew the whistle on was true, and yet here we are with the first person facing charges in relation to Afghan war crimes being the person who revealed the crimes. This must stop.

The Judiciary Act 1903 grants the Attorney-General the authority to decline to proceed with the prosecution for an indictable offence. This power was granted to the Attorney-General so that he may discharge his ultimate responsibility to the parliament and the Australian people for the conduct of the prosecution process with due regard for public interest.

To date, in these two cases, our Attorney-General has chosen to decline to intervene in these matters, stating that he has a strong view that, while he has the power to discontinue proceedings, this is reserved for very unusual and exceptional circumstances and requires careful consideration before it is exercised. If stopping the ongoing prosecution of these two individuals, people who stood up for our rights as a society and fought to ensure that others were brought to justice, isn't considered exceptional circumstances I'm not sure what would meet that criteria.

David McBride and Richard Boyle are being punished for speaking truth to power. It is time power stepped in to protect them. This chamber needs to support the member for Clark's motion and the Attorney-General needs to come and explain to us how he can't see that the prosecution of Richard Boyle and David McBride is unjust and not in the public interest. The issue must be dealt with as a matter of urgency and I urge the chamber to support Mr Wilkie's suspension motion.

Mark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | Link to this | Hansard source

The member for Clark has raised concerns in his motion about the prosecution of Mr David McBride and Mr Richard Boyle. As I told the House yesterday in response to a question from the member for Clark, I am strongly of the view that integrity and the rule of law are central to Australia's criminal justice arrangements. It's true, as the member for Clark has pointed out in his motion, that the Attorney-General has power under the Judiciary Act to discontinue proceedings. It's also true, which he appeared to accept in speaking to the House, that that power to discontinue proceedings is reserved for very unusual and exceptional circumstances.

The motion itself points out that Mr McBride is facing criminal charges and is to appear in court on 13 November 2023. As a consequence, it would be inappropriate to comment further on the particulars of his case. The motion does not point out, or at least not directly, that Mr Boyle is also before the court. The current status of Mr Boyle's proceedings is that he raised a preliminary question relying on the Public Interest Disclosure Act in the District Court in Adelaide. He was unsuccessful. He appealed to the Court of Appeal in South Australia. His appeal has been heard and the court has reserved its judgement on that matter. So, again, as with Mr McBride, Mr Boyle has an ongoing criminal proceeding in court in South Australia. As for Mr McBride, it would be inappropriate to comment further on the particulars of the criminal proceeding concerning Mr Boyle.

But I wish to note that the government is committed to delivering strong, effective and accessible protections for whistleblowers. I detected something of a concession from the member for Clark that that is in fact the case. The government has already delivered priority amendments to the Public Interest Disclosure Act, an act that I am very proud to have brought to this parliament in 2013, an act that was reviewed as required by the provisions of the act by a statutory review conducted by an eminent Australian public servant in Mr Philip Moss, who reported to the former government in 2016. Sadly, as with so much else, the former government declined to act on the recommendations that Mr Moss made for improvements to the Public Interest Disclosure Act 2013.

On coming to government, we acted on Mr Moss's suggestions for improvements to the Public Interest Disclosure Act and we have already delivered priority amendments to the act.

As I've said publicly already, the government intends to commence a second stage of reforms, which will include public consultation on, firstly, broader reforms to the Public Interest Disclosure Act to provide effective and accessible protections to public sector whistleblowers and address what I think is fairly recognised as the underlying complexity of the current scheme. Secondly, there will be public consultation on the need for additional supports for public sector whistleblowers, with a possibility that there should be created a whistleblower protection authority or a whistleblower protection commissioner.

The Albanese Labor government is delivering on its commitment to ensure that Australia has effective frameworks to protect whistleblowers, which are critical to supporting integrity and the rule of law. Reforms to the Public Interest Disclosure Act were long overdue by the time that we took office in May last year. Significant reform is required to restore the act to a scheme that provides strong protection for public sector whistleblowers.

As I'm sure the member for Clark would appreciate, and the member for North Sydney should also appreciate, using a suspension motion to call for intervention in an ongoing court case—in this case, the member for Clark is using a suspension motion to call for intervention in two ongoing court cases—is highly irregular, and the government will not be supporting this motion.

Bob Katter (Kennedy, Katter's Australian Party) Share this | Link to this | Hansard source

I have very great respect for my colleague on the crossbenches. I've always had very great respect for him. He is one of the few people in this place who always act out of conscience and what they believe is the right thing to do. But there is another issue here. In my book, I quoted one of the best books on the typical Australian. It describes the typical Australian as a person who sticks by his mates, even if his mates are doing the wrong thing. You don't rat on your mates. Well, I think this bloke has ratted on his mates, so I've got no sympathy for him. Should he have a criminal conviction against him, I would agree with the honourable member, my colleague, that there shouldn't be legal punishment. He shouldn't be convicted, but I most certainly do not approve of his conduct.

Chris Masters has written a book big-noting himself once again. He wrote a book called The Moonlight State, which led to the destruction of the Queensland government and the jailing of four ministers. Every person in this House should listen to what I'm saying here. The leading case was that of Brian Austin. What he had done was drive his government car up to see his children at the weekend at a boarding school outside of Brisbane. For that, he spent two years in jail, like a criminal. So thank you, Chris Masters. You did a wonderful job! There was not one single conviction for government corruption—not one. It was just this petty rubbish—using your motor car to drive up to see your kids. That was the leading case. That was the case that the other four cases followed. So, Chris Masters, what you did was put a person in jail for using his car to go up and visit his kids on the weekend. Every government car in Australia will be used for private purposes today. He completely subverted and corrupted the process of government in Queensland and damaged it to a point where it is still damaged today. And now he's out there spitting upon our Australian soldiers who are risking their lives. They don't know whether the cause is right or wrong in Vietnam or Indonesia. You just join up. I just joined up. I didn't know all the rights and wrongs of it. Your government is going to war, so you just join up. That's what you do as an Australian.

Masters has spat upon those people. He is the person who's written a book that backs up the convictions of this gentleman we're talking about today. I do not wish to see this gentleman put in jail or punished in any way, and I most certainly do not want to see the parliament of Australia approving the conduct of someone who has ratted on his mates—the most un-Australian of characterisations.

Allegra Spender (Wentworth, Independent) Share this | Link to this | Hansard source

I rise in support of this motion, and I thank the member for Clark for moving it and the member for North Sydney for seconding it. I echo the words of the member for North Sydney that the prosecution is unjust. The community will look at the prosecutions of Boyle and McBride, and it will have a chilling effect on whistleblowers standing up in this country. I think the government accepts that whistleblower protections are inadequate, and I appreciate the Attorney-General's comments on this. Given that those protections are inadequate in the government's own words and own mind, I think that it is urgent for the government to intervene in these two cases for Boyle and McBride, both of whom have been vindicated in terms of the pieces of information that have arisen out of their whistleblowing. The country is better for knowing what they have identified in those whistleblowing cases, yet those are the people on trial. So I rise in support of the motion.

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

I also rise in support of the member for Clark's motion. Boyle and McBride are paying an immense price for telling the truth. Their reward for acting in the public interest is harassment by prosecution. This suspension motion is valid and urgent because these men face jail for helping reporters tell the truth about matters of public and national interest. They face jail for telling the truth. Time and again we've seen the consequences faced by whistleblowers. While I respect the Attorney-General's commitment to the separation of powers, there is an urgency to this as a potential miscarriage of justice. It's high time that the Attorney intervened to drop these cases. There is no public interest served by seeing McBride or Boyle convicted and serving time in jail.

Ian Goodenough (Moore, Liberal Party) Share this | Link to this | Hansard source

Order! The time allocated for this debate has expired.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question is that the motion be agreed to.