David Shoebridge (NSW, Australian Greens) Share this | Hansard source

I rise on behalf of the Greens to indicate we will be supporting the Public Interest Disclosure Amendment (Review) Bill with amendments that we'll address in the committee stage. I say at the beginning that this is a bill about protecting whistleblowers, and, at its core, protecting whistleblowers is about protecting the truth. Without a commitment to truth—which the Greens accept can include open and challenging contests about what is true—democracy simply can't function. That is why this bill is so important. It's also why the bill has been put under close scrutiny by the Standing Committee on Legal and Constitutional Affairs.

The Public Interest Disclosure Act 2013, which this bill seeks to amend, is one of a number of critical ways we protect whistleblowers in this country. In the 10 years since it was enacted, there have been very significant developments internationally and domestically that have not been incorporated in Australia's whistleblower laws.

In that time, there have been whistleblower protections inserted into the Corporations Act that are, in significant ways, superior to those that apply to public sector employees under the PID Act. We've also seen the 2016 report of the Moss review into the PID Act, which sat on the shelf unimplemented by the former government. It is a matter of public record that the former government had the Moss report for six years, with key recommendations about the urgent need to repair and improve our whistleblower protections in this country, and they did nothing. Not only did they do nothing; under the former government a number of whistleblowers who sought the protection of the PID Act and came out and bravely told the truth ended up being prosecuted. To the current government's shame, those prosecutions are continuing, and I'll address that at some further point.

What we do have at the moment are public sector whistleblowers with far fewer protections than they deserve. As a result, this parliament has an obligation—it is, I think, an obligation not just on behalf of those whistleblowers but on behalf of the entire country—to address these matters as urgent matters, and I have to say that this bill goes about 20 per cent or, perhaps, 25 per cent of the way there.

There are three areas that I'll focus on in this second reading contribution that are directly related to this bill. The first is the inappropriately large carveout proposed under the Public Interest Disclosure Act for personal work related matters. This bill, in the form as tabled, gets it wrong, and I hope we will correct that in the committee stage. The second matter is the absence of one of the critical national reforms we need, which is a national whistleblower commission.

The third matter is the inexplicable lack of remedies for whistleblowers who approach the National Anti-Corruption Commission. It's important when we're addressing this point to realise that the government said at the end of last year and in the first part of this year that the amendments in this bill were absolutely urgent. The Attorney said that they needed months of implementation in the public sector before the NACC opened and was, indeed, very critical of the crossbench and the opposition for taking this bill to an inquiry. He was very hot under the collar. He was very heated. He said it was urgent. He said they needed months to implement it. He was very, very angry at the opposition and the crossbench for taking this bill to an inquiry.

We took it to an inquiry. The inquiry reported well over a month ago. The inquiry reported in March, in time for the March settings, and the Attorney failed to bring it on. So we will be seeking an explanation from the minister about what happened to the urgency. We were told it was urgent to get it through in March. The committee complied with that. We did everything we could. We shortened our hearing schedules and produced the report, and then the government just did nothing with it for the better part of two months. Where is the urgency, and is it going to be ready in time for the NACC to open its doors?

I said at the beginning of this contribution that protecting the truth should be a political project that unites political parties who are serious about democracy. We should all come together here and celebrate when whistleblowers tell the truth about government misbehaviour and corporate misbehaviour. Instead, this parliament has failed to back in key whistleblowers. It has failed to send the biggest signal it can send to people in the public sector about truth-telling. It has failed to make a statement for the end of the prosecution of whistleblowers David McBride and Richard Boyle. That's why, on behalf of the Greens, I move the second reading amendment:

At the end of the motion, add ", but the Senate:

(a) recognises the need for further reforms to whistleblower laws; and

(b) supports ending the current prosecutions of whistleblowers David McBride and Richard Boyle and ensuring that what happened to them does not happen in the future".

This is a chance for this parliament, for this chamber, to come together and say,'Yes, we are not just tinkering with the laws. We are making a clear statement that the ongoing criminal prosecution of David McBride for telling the truth about war crimes in Afghanistan is a stain on this government.' It is a stain on the former government and it sends a signal to everybody in the ADF: you better not tell the truth again or this government is going to come after you and try and put you in jail. David McBride should be acknowledged as a truth teller, should be acknowledged as a member of the ADF who was willing to put his career on the line to tell the truth about war crimes, which led to the Brereton report, which identified the war crimes in detail. What has been this government's response and what was the previous government's response? Well, the current Attorney-General is quite happy for David McBride to continue to be prosecuted and to be put in jail for telling the truth about war crimes. We must make a statement here today that that is an obscenity and say to the Attorney, 'Drop the prosecution.'

I say the same about Richard Boyle. Richard Boyle saw appalling behaviour in the Australian Tax Office—utterly appalling behaviour. He saw the way in which individuals were being dragged through the courts, losing their financial security. It was happening on an industrial scale in the Australian Tax Office. He tried to get it fixed internally and they refused to address it. Then finally, in desperation, he came out and told the public the truth and he has been backed in by the ATO, investigated by the ATO, and backed in by a committee of this Senate, which said everything he said was right. The ATO has been forced to change its behaviour, and thousands and thousands of people are being protected from ongoing bastardry by the tax office. What did the former government do? It prosecuted him for breaching confidence and is trying to put him in jail. What is the current Attorney doing? Signing off on the continuation of that prosecution. They are quite comfortable with Richard Boyle, a whistleblower from the public sector, being put in jail for saving thousands of Australians from being completely monstered by the tax office.

We have a chance now in this debate to support the Greens' second reading amendment and say those prosecutions should end. That is about the most fundamental signal we could send to whistleblowers. Yes, by all means amend the law, but whistleblowers, whether in the tax office or the ADF, the Attorney-General's Department or Home Affairs, are thinking of telling the truth and looking at the legal protections, and they don't seem very good. But then the big meta message sent by the current government is their ongoing prosecution of David McBride and their ongoing prosecution of Mr Boyle. Unless the message is sent to whistleblowers that we're going to protect them and they won't be prosecuted, we can change the law all we like, but whistleblowers are still getting the message from this government as they did from the previous one : if you stick your head above the trenches, we will kick it and we will put you in jail. We have a chance to fix that.

I deal now with the inappropriately large carve-out that is proposed in this PID Act for personal work related matters. This was raised by a great majority of engaged stakeholders to the inquiry—the CPSU, the Alliance Against Political Prosecutions, the Uniting Church, Maurice Blackburn Lawyers, the Australian Lawyers Alliance, Human Rights Law Centre, Griffith University and Transparency International. I commend them all for the way in which they engaged in the inquiry and for the strength of their submissions. The essence of that concern is that the proposed drafting in sections 29(a) and 29(b) of the bill does not implement recommendation 5 of the Moss report. Moss's recommendation was simple and it was balanced. It said:

That the definition of 'disclosable conduct' in the PID Act be amended to exclude conduct solely related to personal employment-related grievances, unless the Authorised Officer considers that it relates to systemic wrongdoing. Other existing legislative frameworks are better adapted to dealing with and resolving personal employment-related grievances.

The Greens agree. To the extent a matter is solely related to personal employment related grievances, it shouldn't be dealt with under the PID Act. This bill does not implement that recommendation. The rationale behind that recommendation was that, if a complaint solely relates to that workplace issue then it should be taken under those other mechanisms, not the PID act. The PID act, which contains quite a rigid response structure and strict confidentiality, can actually be a barrier to resolving some of the issues in the workplace. Moss found that too many PID act complaints were simply workplace issues, and therefore the scheme and workplace relations within the public sector would be enhanced by removing the matters that were solely—and I emphasise the word 'solely'—work-related personal concerns. The reason Moss recommended limiting the exclusion to matters that are solely work-related personal concerns is he recognised that once someone blows the whistle, the line between the original public disclosure and any adverse action taken against the whistleblower after that is very hard to separate. The evidence before Moss, like the evidence we got before our inquiry, made it clear that many whistleblowers, once they make their concerns public, very often face reprisals in the workplace. That can include seemingly unrelated disciplinary action, demotions, even dismissals that are purportedly for matters unrelated to their whistleblowing but are in truth intimately connected.

There is merit in Moss's balance recommendation, but this bill goes beyond that. The proposed subsections 29(2) and 29(2A) exclude work-related conduct matters from the operation of the PID act. There's no reference to the limitation of 'solely'. It includes such a broad definition in the carve-out that the exclusion far exceeds Moss's much more balanced proposal. While the proposed subsection 29(2) excludes personal work-related matters from the 29(2A) carve-out, where they're taken as reprisal actions against the whistleblower, as multiple submissions to the inquiry pointed out, that's a toothless, meaningless protection. Since the inception of the PID act, guess how many successful prosecutions there have been for reprisal actions? In 10 years of the PID act, with multiple complaints under the act and thousands of disclosures, how many successful prosecutions? Not one—not one successful prosecution for reprisal, because the law doesn't work. Unlike the Corporations Act, where there is a reverse onus, the PID act puts the almost impossible task to the prosecution of proving what's in the mind of the person taking the reprisal action. You have to prove adverse intent, and it doesn't work. For some reason, the Attorney has failed to fix that.

Can I address very briefly the need for a whistleblower commission? We can change the law, tinker with the law and make marginal changes here, but when a whistleblower stands up against a multibillion-dollar government agency, the law at the moment means they're on their own. They need someone on their side—not one individual, but an institution. As happens in the Netherlands and in other jurisdictions around the world, they need a whistleblower commission, properly funded, who will be on their side and help take them through the steps of being a whistleblower and give them some balance in what is otherwise a David-and-Goliath fight where we know, from case after case after case, that Goliath keeps winning and shutting down the truth.

These amendments are said to be urgent for the NACC to be operating. That is true. So why are there no remedies for the whistleblower protections and the PID act protections in the NACC act? Why is there no remedy to allow for reinstatement? Why is there no remedy to allow compensation to be paid? I'll be asking the minister in the committee deliberations: why the absence of remedies and does that really protect whistleblowers?