[Theme Music Starts]

ASHLYNNE:

From Schwartz Media, I’m Ashlynne McGhee, This is 7am.

There’s been another strike against whistleblowing.

Richard Boyle was a tax office employee when he raised concerns internally about a scheme to garnish overdue taxes directly from peoples’ bank accounts, and when that didn’t work he told journalists.

A court in Adelaide yesterday upheld a ruling that he’s not a whistleblower, which means he now has no defence for leaking that confidential information.

Today, Macquarie University Professor of Journalism and whistleblower advocate Peter Greste, on why the government talks big on open democracy but hasn’t acted to fix the system.

It’s Thursday June 20.

[Theme Music Ends]

ASHLYNNE:

Peter, Richard Boyle's been in and out of court for a few years now. His case hasn't even gone to trial yet, though. Remind us why he's in this position.

PETER:

Yeah, it's a pretty tragic and troubling story I think. About five or six years ago, Richard was working as a tax official in the office, the ATO office, in Adelaide. And he saw what they called garnishee notices, which are automatic notices that the office is able to issue to banks to give them money from people that owe them tax without getting clearance from the people themselves, the taxpayers themselves. And at one level, that strictly speaking, that's legal. But it was putting enormous pressure on individuals who caught themselves in all sorts of strife, businesses that were struggling to deal with some of the things that businesses normally deal with and who were happy to cover the bills but just couldn't deal with the kind of pressure of, of a whacking great big tax bill at that point. And Richard felt that that was highly unethical.

He made a complaint or reported the problem to his superiors. They dismissed the issue. He then went to the media, to the ABC, and he took some recordings as evidence of what the tax office was doing.

Audio Excerpt - ABC Four Corners News Presenter:

“Tonight, we meet people who say their lives have been destroyed by the heavy handed tactics of the ATO. Among them is a whistleblower who describes a toxic culture driven by revenue targets and KPI’s that staff liken to a cash grab.”

PETER:

Now Richard was soon afterwards outed as the source.

Audio Excerpt - ABC Four Corners News Presenter:

“Last week in the lead up to our program his home was raided by the ATO and the Federal Police.”

PETER:

It came as quite a shock. Richard and his wife were in their Adelaide apartment early in the morning, just getting ready to go out. I think Richard had just been in the shower and the AFP came in, barged in with handcuffs and weapons and so on and started going through his drawers, personal belongings, documents, pretty much everything and dragged him off for questioning.

Audio Excerpt - ABC Four Corners Interviewee:

“It seems very vindictive that they would do this. Use public resources, use massive amounts of public resources, to investigate someone who’s blown a whistle against unethical behaviour at the Australian Taxation Office.”

PETER:

And he's been on trial ever since for illegally taking tax office records, illegally recording the details of taxpayers. Now, strictly speaking, that's true. He did make those recordings. He did keep those documents. He did pass them on. But, what Richard and a whole bunch of supporters, including myself, have been arguing is that it was an essential part of the whistleblowing process. In the end, the ATO was forced to look at its processes, look at how it was using garnishee notices, and acknowledged that they were abusive and harmful and causing a lot of people enormous stress and, and it changed its practices.

Audio Excerpt - Senator David Shoebridge:

“As countless subsequent inquiries, including from this chamber, have conclusively found this was the tax office Robodebt. And while that royal commission has just finished with damning findings against the scheme's authors, Richard is the only one from the tax office facing legal sanction after what happened there.”

PETER:

So we're in this rather crazy situation of a guy exposing something that had to be exposed, that was causing enormous pressure, that the government has changed, but the guy that exposed that is now being prosecuted for the act of blowing the whistle and that strikes me as pretty tragic.

ASHLYNNE:

Richard was back in court in Adelaide yesterday morning. Talk me through what's happened.

PETER:

So, Richard had originally argued that he was, he should be, immune from prosecution under whistleblowing legislation which allows whistleblowers to be protected if they're exposing things in the public interest.

Audio Excerpt - Court Reporter:

“The trial judge judgement in this case found that whistleblowing laws only provide narrow protection to Richard Boyle, only protected the actual act of disclosure, not his conduct in preparing to speak up internally.”

PETER:

Now, Richard lost that appeal, or lost that argument rather, and so he went to the South Australian Court of Appeal and it was the Court of Appeal that has heard his argument and they threw that appeal out. So Richard now has to face trial and potentially quite a few years behind bars if he loses it.

ASHLYNNE:

Tell me a little bit more about that whistleblower protection he was asking for. What does it mean for people when they're facing these kinds of charges or these kinds of cases?

PETER:

What it's supposed to do is give public servants the power, or the ability, to expose misdeeds within government if what they're doing is in the public interest. Remember, they are literally public servants. They are supposed to be serving us, not the government and, pretty sure everyone recognises, there is an enormous power imbalance between individuals and the state. And when the state being is abusing that power, then we need whistleblowers who have the capacity to expose those things in the public interest.

The Attorney General, Mark Dreyfus, has acknowledged quite some time ago that whistleblower protections simply aren't working because we see cases like Richard’s, and David McBride who was the whistleblower that exposed allegations of war crimes by The Australian Special Forces. He just went to prison a month or so ago, which is also pretty tragic. And the attorney general has promised to reform the whistleblower protections and increase the public interest defence.

Audio Excerpt - Mark Dreyfus:

“The Albanese government is committed to restoring trust and integrity to government and an effective public sector whistleblowing framework is essential to achieving this, including to support disclosures of corrupt conduct to the National Anti-Corruption Commission.”

PETER:

Now, we had hoped that Richard would be able to lean on that public interest defence in this particular case and argue that, you know, that he was acting on behalf of all of us.

What we saw yesterday was, I think, a very serious blow to anybody, any public servants who might be seeing wrongdoing and thinking about following Richard's example. This is going to have a very, very chilling effect, I think, on whistleblowing and, and I think on press freedom, really, which is one of my big concerns.

I think judges tend to look at the very narrow detail of what they did wrong in the law, the law is very clear, and weigh that against a sort of mushier ideal around the public interest. And what we're seeing in Australia repeatedly happen is that the judges say, well, I can see that you broke this law very, very clearly and so I've got no real option but to find you guilty of that offence. That's what we saw happen in David McBride's case.

Again, we've all been arguing, myself and the whole bunch of others who've been supporting the whistleblowers have been arguing, that that public interest needs to be taken into account and the courts just don't seem to have the capacity or the will to do it.

ASHLYNNE:

“After the break, why the government seems to be all talk and no action.”

[Advertisement]

ASHLYNNE:

Peter, the Albanese government says it is committed to transparency, it says things should improve for whistleblowers. You laugh, tell me why you’re laughing?

PETER:

Yeah, I remember Mark Dreyfus before the last election published on his own website a very clear statement that he was committed to transparency, to improving whistleblower protections, to making sure that the government worked for the people, not for itself.

Audio Excerpt - Mark Dreyfus:

I have a near permanent interest in whistleblower protection.

PETER:

You know, to his credit, I suppose Mark Dreyfus has also gone through a process of reviewing whistleblower legislation.

Audio Excerpt - Mark Dreyfus:

“But I'm now looking at the suggestions that have come in from the public, from other members of Parliament about what further reforms are needed for our whistleblower protection scheme. And I'm looking forward to enacting those…”

PETER:

But these two cases in particular, Richard Boyles and David McBride's, have been so emblematic, that we've felt that it's really important that the attorney general follow up that rhetoric and act on these two cases and withdraw the prosecutions. By not following through I think it sends a really bad message. It suggests that the government just isn't serious about following through on all of those promises. And I think that's a very bad look.

But, I think it's also really important that we underline, we remind our politicians, we remind our public servants that they are supposed to work for us. We are their employers. You know, when we pay our taxes, we pay their wages. When we go to vote, we effectively decide who we're hiring to run government. They work for us, not the other way around. That means that they need to be accountable to us.

And the mechanisms that we do that are through the courts, through all sorts of oversight bodies, but also through the press. And we cannot do that if whistleblowers are being prosecuted for going to the press. That is an essential mechanism, an essential safety valve which keeps our system of democracy honest and at the moment it's just not working.

ASHLYNNE:

And so, Peter, what is the fix here? If the courts are following the law? How does the law need to change? What does it look like in an ideal situation?

PETER:

The law needs to give far greater emphasis to the public interest defence. It needs to recognise that there is a very potent need, a very important democratic need, to give whistleblowers that defence and make sure that it is usable. There are a couple of other steps that the law that the government needs to do, and one of them is to set up an independent whistleblower authority that has the capacity to help whistleblowers navigate the very complicated legal mechanisms. To make sure that they’re able to stay on the right side of the law. To give them advice and support and make sure that whistleblowers are protected not punished.

It's certainly something that would also signal the government's seriousness about supporting whistleblowing.

ASHLYNNE:

What do you think the prime minister's appetite is like for that?

PETER:

You know, the prime minister and the attorney general were very, very forthright in opposition, less so now. And, you know, as we've seen in recent reporting, The Financial Review looking at a particular speech that the Prime Minister gave some time ago when he was in opposition about the importance of transparency and accountability and so on.

The Financial Review discovered that that speech had magically disappeared from the internet, for a period until they started asking questions about it at which point it suddenly, sort of surreptitiously, popped back up again.

So anyway, the prime minister's office dismissed that disappearing speech as a technical glitch, and it's also hard not to see the coincidence here.

But I want to give the government some credit for making the right noises, and reviewing a lot of other pieces of legislation around secrecy and privacy and so on, which I think is helping. But, at the moment it looks far more cosmetic than it does realistic or practical.

A few years ago, you might remember when the Australian Federal Police raided two news organisations, this was back in 2019. The New York Times took a good, hard look at Australia's culture and they declared that Australia may well be the world's most secretive democracy. That was not a flippant throwaway line. I think that was a serious piece of journalism and, you know, I've been looking hard at Australia's culture of secrecy and I think I'd have to agree.

We have all sorts of provisions on paper that support unfairness and transparency, like whistleblower protections and freedom of information laws. But anybody who works with whistleblowers or FOI Applications knows that they just don't work. They are utterly dysfunctional. And since then, since 2019, what we've seen are more restrictive laws that have been passed, not less. We've passed more national security legislation since 9-11, than any other country on Earth. Almost 100 separate pieces of legislation.

Now, I'm not saying that we shouldn't be upgrading our national security laws to cope with the current environment, but huge numbers of those laws intrude on our civil liberties, intrude on our freedom of speech, intrude on our press freedom, intrude on transparency in government. And I think overall, it's actually shifted the balance of power in favour of government, away from us as individuals and citizens. We need to be very, very careful when that happens, because it turns us more towards authoritarianism than towards a liberal democracy that we like to think of ourselves as.

ASHLYNNE:

You mentioned David McBride, who has been sentenced and he's now in jail. We spoke to him just on the eve of his sentencing hearing.

Audio Excerpt - David McBride:

“Whatever happens today, put it this way, It’ll be hard to choke back the tears cause it’s, while it’s not going to be completely over today, it is the end of a pretty long phase.”

ASHLYNNE:

And you could hear the emotion in his voice and the toll that it's taken on him. Cases like these are hardly an ad for whistleblowing, are they?

PETER:

Yeah, nah they’re not.

Put yourself in the position of a public servant who is sitting on some information about some wrong-doing that they're seeing in government and, on the one hand they're listening to the prime minister and the attorney general's rhetoric around protecting whistleblowers, and on the other hand you see the experiences of Richard and David. You see how they've suffered financial ruin. Their careers have been shot. At least one of them is already in prison. They've suffered enormous personal stress as a result of this.

You know that the price that those guys have paid individually for doing what I think most of us would recognise is really heroic acts on behalf of all of us. If you're a public servant sitting on information, what are you going to do? You’re hardly going to think, yep I'm going to go out there.

Whistleblowing does work in some places. But those two cases in particular I think are very, very bad advertisements for whistleblowing in this country.

ASHLYNNE:

Peter, thanks so much for your time.

PETER:

It's fantastic to talk to you Ashlynne.

[Advertisement]

[Theme Music Starts]

ASHLYNNE:

Also in the news today,

State governments in Victoria and Queensland have rejected the nuclear policy announced by Peter Dutton yesterday which would see nuclear power plants built at seven sites around Australia including two in Queensland and one in Victoria.

Peter Dutton at a press conference yesterday announced the plan, promising it would provide cheap energy to households but refusing to say when he would reveal the cost of it all.

And Russian President Vladimir Putin has visited the capital of North Korea, meeting with leader Kim Jong-un, with the two expected to announce treaties strengthening ties between their two nations.

The US State Department said it believes the visit was a sign of desperation on the part of the Russian president, looking to strengthen his remaining alliances after the invasion of Ukraine led to sanctions and severed other diplomatic ties.

That’s all from the team at 7am today. My name is Ashlynne McGhee, thank you for your company. I’ll see you again tomorrow.

[Theme Music Ends]