Stephen Bates (Brisbane, Australian Greens) Share this | Link to this | Hansard source

I seek leave to move the following motion:

That the House:

(1) notes with very real concern that the criminal trial of whistleblower David McBride has commenced today and that this brave and principled Australian faces the very real prospect of jail for telling the public the truth about potential war crimes committed by the Australian Defence Forces in Afghanistan; and

(2) calls on the Attorney-General to urgently use his powers under the Judiciary Act to end this prosecution and by doing so provide a clear message to whistleblowers around the country that the truth matters to the Australian Government.

Leave not granted.

I move:

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

That the House:

(1) notes with very real concern that the criminal trial of whistleblower David McBride has commenced today and that this brave and principled Australian faces the very real prospect of jail for telling the public the truth about potential war crimes committed by the Australian Defence Forces in Afghanistan; and

(2) calls on the Attorney-General to urgently use his powers under the Judiciary Act to end this prosecution and by doing so provide a clear message to whistleblowers around the country that the truth matters to the Australian Government.

The trial of David McBride has commenced just a few short kilometres from here in the ACT Supreme Court. David McBride, a brave whistleblower, could not stand by while he had evidence of crimes committed by Australian Defence Force personnel in Afghanistan. But nobody would listen to him. Nobody in his chain of command would act. No-one would commence an investigation into the evidence David McBride had that a group of Australian soldiers had committed war crimes in Afghanistan. He followed the correct processes. He went through the chain of command in the ADF and had every door shut on him. Eventually his sense of duty led him to blow the whistle and tell the media and the public what had happened. Whistleblowers like David are essential to our democracy and in holding our governments and institutions to account. Think of the robodebt scandal and how whistleblowers were silenced, or Richard Boyle, who blew the whistle on appalling practices in the ATO and is being prosecuted despite been vindicated by a Senate inquiry and an internal ATO inquiry.

After blowing the whistle on Australian war crimes in Afghanistan and being vindicated by the Brereton report, which found evidence of dozens of war crimes committed by Australian special forces, it is David McBride, the whistleblower, who is in court today being prosecuted by the government. There is one person who can stop this. That person is the Labor Attorney-General. The Attorney-General has the power to end this with a single pen stroke using section 71 of the Judiciary Act. With a flick of his pen the Attorney-General could end the prosecution of David McBride, who faces the very real prospect of years in jail simply for telling the public the truth about war crimes. While David McBride is facing trial today, not a single member of the ADF who committed the war crimes has been brought to trial. There is one pending prosecution, but the first person to face trial, the first person to face jail, is not one of those who committed the war crimes but the whistleblower. Someone needs to riddle me that. There are clearly exceptional circumstances here where our country's whistleblowing laws have proven incapable of protecting David McBride. The Attorney-General has admitted Australia's whistleblowing laws are broken and do not protect genuine whistleblowers, so why let David McBride suffer? What does Australia stand for when we have compelling evidence of troops committing war crimes and the person we prosecute is the whistleblower?

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

Is the motion seconded?

Elizabeth Watson-Brown (Ryan, Australian Greens) Share this | Link to this | Hansard source

I second the motion and reserve my right to speak.

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

Standing orders should not be suspended. All of us in this House have an obligation to the administration of justice, and this motion is not appropriate in the context of a criminal trial which started today in the Supreme Court of the Australian Capital Territory, where a jury will be empanelled this week. To repeat, this is a jury trial. Of all the matters ministers should speak on, a current criminal trial is not one of them. As everyone in this place should know, to do so carries the substantial risk of prejudicing a proceeding before a court. As Mr McBride's proceeding remains ongoing, it would be wholly inappropriate for me to comment, and I will not be commenting on the particulars of that matter.

But I am happy to make some comments about the prosecution process in Australia. The Attorney-General of the Commonwealth does not conduct prosecutions. One of the most important features of our criminal justice system is that the decision to prosecute is a matter for the independent Commonwealth Director of Public Prosecutions. The Attorney-General's power to discontinue a prosecution that has been commenced by the independent Commonwealth Director of Public Prosecutions is an extraordinary power that should be exercised only in extraordinary circumstances. Clearly, that has been the view of every Commonwealth Attorney-General since Federation, given that the power in section 71 of the Judiciary Act has been exercised only once in 120 years. I'll say that again: the power in section 71 of the Judiciary Act has been exercised only once in 120 years. That might be a little hint to you about the exceptional circumstances that might be required.

Generally, the only time that the Attorney-General of the Commonwealth will be involved in the prosecution process is when a law specifically requires the Attorney-General to consent to a prosecution in order for it to proceed. There are a small number of laws which require the Attorney-General's consent, in addition to the decision being made by the Commonwealth Director of Public Prosecutions to commence a prosecution. That's for a very good reason. It is vital to the administration of justice in Australia that the prosecution process is, and is seen to be, largely independent of the political arena, and we should all be thankful for that. We should be thankful that, in Australia, the prosecution process is largely independent of the political arena.

I invite all of those on the crossbench to contemplate this: if the Commonwealth Attorney-General intervened in a prosecution as a result of public or political pressure, that could have a range of far-reaching consequences. It could call into question the Attorney-General's motives. It could politicise the prosecution process. It could undermine the independence of the Director of Public Prosecutions. So any suggestion—and it's the implication of this motion that is now before the House—that an attorney-general should intervene in prosecutions routinely or has some kind of permanent, standing or ongoing supervisory jurisdiction in circumstances that are not truly exceptional should be strongly resisted. That's why the standing orders should not be suspended. I will say this, too, about the process of reform on whistleblowers. In relation to law reform, the government is delivering on its commitment to ensure that Australia has effective frameworks to protect whistleblowers. This work is critical to supporting integrity in the rule of law.

I have a very longstanding personal interest in this. I was the Attorney-General and Special Minister of State in 2013 who brought to this House the Commonwealth's first legislation to protect whistleblowers. It's called the Public Interest Disclosure Act. When we brought that bill before the parliament and had it passed in our last term in government, I wrote into the act a statutory review process in order to ensure that, within two years of that bill becoming law, there would be a review to ensure that it was working as intended. The former failed government, which had no interest in whistleblower protection, of course ignored that statutory review that was conducted by Philip Moss. The Moss review had to wait until our government, which has an interest in whistleblower protection, came to office and picked it up. We have implemented a little over half of the recommendations of the Moss review in a bill that I brought to this parliament last year.

We have, in the Public Interest Disclosure Act, a framework which facilitates and protects disclosures of wrongdoing raised by public officials. Its aim is to promote integrity and accountability in the Commonwealth public sector. On 1 July 2023, the first stage of reform to that system, the Public Interest Disclosure Amendment (Review) Act 2023, commenced and ensured that immediate improvements to the public sector whistleblower scheme were in place when the National Anti-Corruption Commission commenced. It was important to match the commencement of the National Anti-Corruption Commission. The improvements included strengthening protections for disclosures of witnesses, focusing the scheme on integrity wrongdoing, making the scheme easier to administer and enhancing oversight of the scheme.

More specifically, the amendments which commenced on 1 July reinforced the positive duty to protect whistleblowers upon principal officers by requiring them to provide ongoing training and education to public officials in their agency, strengthened protections for whistleblower disclosures and introduced protections including expanding the definition of detriment that will attract remedies. The amendments enhanced the oversight role of the Ombudsman, enhanced the oversight role of the Inspector-General of Intelligence and Security and facilitated the reporting and sharing of information relating to public interest disclosures to ensure that they can be properly addressed. The reforms also improved the allocation and investigation processes for authorised officers and removed solely personal work related conduct from the scope of disclosable conduct. This first stage of reform implemented 21 of the 33 recommendations of the 2016 review by Mr Philip Moss AM. It's another reason why standing orders should not be suspended as sought by the member for Brisbane.

The government will soon commence a second stage of whistleblower reform to address the underlying complexity of the Public Interest Disclosure Scheme and provide effective and accessible protections to public sector whistleblowers. That'll include consideration of the remaining recommendations of the Moss review, some recent parliamentary reports, some recent external reviews and reports from stakeholders and significant changes to the integrity landscapes since the Public Interest Disclosure Act was introduced, which include, of course, the establishment of the National Anti-Corruption Commission. We are interested in the community's views on what reforms are required to the Public Interest Disclosure Act and to other related measures to ensure the public sector whistleblower framework is fit for purpose. We'll be seeking views on who can make and who within the government can receive disclosures, including a 'no wrong door' referral approach. We'll be seeking views on pathways to make a disclosure outside of government. We'll be seeking views on protections and remedies that are available under the Public Interest Disclosure Act. We'll be seeking views on the function of oversight and integrity agencies and support for whistleblowers, including potential functions of a whistleblower protection authority or commissioner as well as education and training. That's another reason why standing orders should not be suspended.

There have been a whole range of improvements in recent times to the broader Commonwealth National Integrity Framework, including, of course, the establishment of the National Anti-Corruption Commission, which creates a new avenue for all persons, including public officials, to raise concerns about wrongdoing. Standing orders should not be suspended.

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

I rise in support of this standing order motion, and I rise as the elected representative of David McBride, as he is a constituent. The Attorney-General makes the point that we shouldn't have this motion at this point, because the trial is ongoing right now, starting today. I think that is actually the point. Others across the crossbench and I have been making representations about this very issue, the case of David McBride, and also the case of Richard Boyle, for months and months and months, as have many people across civil society and law reform, because this is a critical issue. I pay tribute to the Attorney-General's strong actions on whistleblowers in the past, and I understand his reluctance to intervene. But this is a case of justice that needs to be dealt with, and this is why others and I are standing at this time. David McBride did undertake processes to try and deal with crimes that he had concerns about. He undertook processes to try and get those resolved and dealt with internally, and, when he felt he had nothing else to do, he went to the press. He has stood up for the broader goals of the Australian community. He has taken one for Australia, as opposed to having taken one for the team—in this case, he has taken one for the broader Australian community—and we are better for that. As a country, we are better for his actions, and we are better for the understandings that he brought to this country as a whistleblower.

Unfortunately, he is the man on trial today. Many people have worked tirelessly to avoid this situation, but this is where we are. I think this is a matter of urgency, and this is why I rise in support of this and I rise in support of David McBride, his bravery and what he has stood up for up until this time.

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

I rise in support of the member's suspension of standing orders motion for one simple reason: whether or not reform has been fast enough in coming when it comes to the Public Interest Disclosure Act, the reality is that we now have an Australian citizen who, for all intents and purposes, has done what he believes is in the best interests of our country, and yet he finds himself to be under the full attention of our judicial system.

To many Australians, including many in my electorate of North Sydney, it makes absolutely no sense that the first person to face criminal prosecution in our country for war crimes in the Afghanistan conflict is actually the person who blew the whistle on them. It makes no sense. It's just not logical. More concerningly, it sends a very chilling message to anybody else currently sitting in a position who is watching the activities of a department or process that they may be involved in and thinking that they need to speak up about this. The message this prosecution sends to those people is: 'Do not, or, if you do, you will face the full weight of the law.' As a civil society that is seeking to progress itself ever forward, one of the things we must commit to is transparency. We must commit to integrity in all of our processes. In this simple case, it's hard not to see David McBride as a pawn in a much bigger political game. That's why I believe it's important that we suspend standing orders today to debate this.

I absolutely pay my greatest respects to the Attorney-General. I know this is a passion project of yours, and I know this is an area you are incredibly committed to. I also know, though, that you do have the power to stop this prosecution. The terms under which you can exercise that power are not written in the legislation. It is up to you to decide whether they are extraordinary. I would make the case here that, in this circumstance, just as with Bernard Collaery, these are extraordinary circumstances. David McBride should not be the person on trial today.

Monique Ryan (Kooyong, Independent) Share this | Link to this | Hansard source

I rise to speak in support of this motion for the suspension of standing orders. David McBride might be on trial today, but he's not the only person or entity on trial in this matter. This government is also on trial. This is a matter in which a whistleblower—and he's acknowledged to be a whistleblower—has drawn attention to crimes committed by representatives of this country, yet it is an egregious and cruel paradox that he is the first person to face trial on this matter. The reality is that these are extraordinary circumstances. The Attorney-General is aware of the fact that he has, as he has before, the power to exercise his unique powers to stop this prosecution.

What members of the House might not know is that David McBride 's father was also a whistleblower. He was the person who brought attention worldwide to the adverse effects of thalidomide. This is a family with a long and proud history of bringing unfortunate and sad events to light. He shouldn't be penalised for his actions in this; he should be lauded. We should be celebrating the actions of a brave man who has taken a personal risk to bring to light events of which we all now are sadly aware. So it is with great strength and with great conviction that I support this motion for the suspension of standing orders

Kate Chaney (Curtin, Independent) Share this | Link to this | Hansard source

I also stand in support of this suspension of standing orders motion. I appreciate that the government has a desire to increase the protection of whistleblowers and has commenced this process. Last year, when the National Anti-Corruption Commission Bill 2022 was being discussed, the crossbench urged the government to improve protections for whistleblowers with a whistleblower protection authority. Some changes have been made to whistleblower protection, but clearly not enough, so we find ourselves in this extraordinary situation with David McBride on trial this week.

I acknowledge the Attorney-General's point that his power to intervene should only be applied in exceptional or extraordinary circumstances. It's only been exercised once in 100 years. The question here is really whether these are exceptional circumstances. I think the government finds itself in a difficult position of its own making, because that whistleblower protection wasn't extended last year at the time when the crossbench was pushing for that. This appears to be exceptional. Mr McBride has done everything right: he told the truth, he showed courage and now he's paying the price. Earlier in his defence in the proceedings against him, Mr McBride sought to rely on the Public Interest Disclosure Act to introduce evidence and to defend himself in that prosecution. But the Commonwealth made an application under public interest immunity to prevent that evidence from being introduced in court, which, as Mr McBride has said, made his Public Interest Disclosure Act application and the conduct of his defence impossible. These circumstances are extraordinary, and so I call upon the Attorney-General to intervene because these are extraordinary circumstances, and to assure the Australian people that in our democracy whistleblowers will receive the appropriate protections.

Zali Steggall (Warringah, Independent) Share this | Link to this | Hansard source

I rise in support of this motion to suspend standing orders to call on the government to suspend the criminal prosecution of whistleblower David McBride without delay.

This began today in the courts, and it goes to the heart of what many have been calling for over many years in relation to whistleblower protection—that is, to have proper, robust whistleblower protection. David McBride blew the whistle to expose horrible war crimes in Afghanistan. These were crimes done in all our names—in the name of Australia. Those soldiers represented Australia overseas and so we bear a moral responsibility for those crimes. It is also our responsibility to welcome those things being exposed.

Whistleblowing is an action of last resort. David McBride blew the whistle to expose horrible war crimes in Afghanistan; he is brave and he is not a criminal. Whistleblowers pursue all avenues available. They raise concerns with their superiors and through the administrative process, if you look at the different ways in which it has occurred. They try to do it through internal ways, but when the organisational structures they belong to fail to address those concerns and fail to take action, the moral compass and the ethical dilemma they're faced with in knowing those facts and what must be done means that they take the incredibly brave course of action of blowing the whistle. We all benefit from that, as a society and as Australians. It is not done lightly and it is not done easily; it's a matter of last recourse.

To be a whistleblower requires a conscious weighing up of what is morally and ethically required for the public good, and what consequences they may have to bear themselves. Currently, our laws are incredibly and wholly inadequate. I know that the government and the Attorney-General have indicated a willingness to look at these laws but they're taking too long. In the meantime, we have the wrong person on trial. Proper legislation in this space is needed as a matter of urgency.

We need to think of the balance between the public interest and not having vexatious claims raised about the Public Service or departments. It's having people respect the administrative process and due process for raising complaints and concerns—for example, in agencies. It's also about acknowledging that the public interest should never outweigh the public interest of telling the truth and exposing wrongdoing in public life. If not, we will never know what's happening behind closed doors. This puts a veil of secrecy over our Public Service, Defence Force and any other system where we know that whistleblowers have actually done the Australian public a good.

So I support this motion to call for intervention by the Attorney-General in this case. I appreciate that it's a matter of exceptional circumstances to intervene in these prosecutions, but those exceptional circumstances are borne out by the fact that these laws are acknowledged to be inadequate and incomplete. So we do have exceptional circumstances for that intervention. It's not something that should be called for as a matter of course; it should only be done in the most rare of circumstances.

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

Order! It being nine minutes past six, the time allotted for the debate has expired and the question must be put.

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

The question is that the motion be agreed to.