- by Anna Pha
- The Guardian
- Issue #2108
David McBride and Richard Titelius, Perth 2022.
The case of Julian Assange is well known. He spent years in tortuous confinement with the threat of deportation to the US and a life sentence hanging over his head. He was hounded and punished for doing his job as a journalist. His ‘crime’ was embarrassing US authorities by exposing their war crimes, spying, and corruption. The alleged criminals have not been punished, just whistleblower Assange.
A trend is emerging whereby whistleblowers acting responsibly and carrying out their public duty are being punished while the criminals they expose go free. The whistleblowers lives have been upended; some have lost their homes , and others lose their freedom.
A recent example is the case of David McBride, a former military lawyer who alleged that members of the Australian Special Forces had committed war crimes in Afghanistan. Before going public, McBride had raised his allegations through the proper Army channels, but they fell on deaf ears.
The Brereton report that followed McBride’s allegations found evidence of 39 murders of civilians and prisoners by (or at the instruction of) members of the Australian Special Forces, subsequently covered up by ADF personnel. The report found that 25 ADF members were involved in the killings.
On 14 May this year, McBride was sentenced to five years and eight months imprisonment with a non-parole period of 27 months. He was not sentenced for whistleblowing, but for his conduct in unlawfully gathering evidence – secret documents – that he considered would support his disclosure of the alleged war crimes.
It is a catch-22 situation. McBride did what was necessary to back up his allegations. This was the crime. Reforms are urgently needed to close that loophole.
As Rex Patrick, former independent Senator and founder of the Whistleblower Justice Fund, said, “The only person imprisoned for war crimes committed by Australian forces in Afghanistan is the whistleblower, not a war criminal – that’s not right.”
The case of Richard Boyle also illustrates the failings of current whistleblower protection legislation. He faces criminal charges with a jail sentence of up to 46 years. He revealed a garnishee practice (dipping into a debtor’s bank account), being used illegally by the tax office. At the same time as large corporations failed to pay taxes, the Australian Taxation Office targeted small businesses in order to meet key performance indicators.
South Australian Supreme Court Justice David Lovell explained in a decision on 19 June 2024 that Boyle, “faces criminal charges, not for the disclosure of information he believed needed to be disclosed, but for his conduct in unlawfully gathering evidence he considered would support his disclosure.”
In other words, it is not the whistleblowing that is illegal but the conduct in gathering the evidence. Whistleblowers need evidence when making allegations. This is another catch-22. Boyle’s allegations have since been vindicated, and the ATO has changed its practices. His sentence has not changed.
Tony Watson is a former tax lawyer and partner at PwC-owned tax advisory firm, Greenwoods & Herbert Smith Freehills. He alleged that the firm’s largest partner, Lendlease, had incorrectly claimed hundreds of millions of dollars in tax deductions on a $1.7 billion purchase of retirement villages.
He was forced out of the company and is now fighting to keep his house. The Treasury Laws Amendment (Tax Accountability and Fairness) Bill 2023 was passed in May this year. It is supposed to protect whistleblowers who disclose information to the Tax Practitioners Board (TPB).
Watson is calling for a well-funded and well-resourced Whistleblower Authority to ensure that concerns raised by whistleblowers are acted upon; that would promote good corporate governance and discourage misconduct and malfeasance. An authority like that would save public money and ensure protection is genuinely available to all whistleblowers.
It would also engage barristers and level the playing field.
Australia needs whistleblower protections that work.
Adam Greenwood is facing criminal charges for alleged harassment by sending 8 emails to police alleging corruption on the Wingecarribee Shire Council in NSW. In the emails he made demands for the police to act on the corruption.
The matter has dragged on for almost five years and even involved terrorism police!
These and other cases reflect the grave injustices being meted out to whistleblowers. The current whistleblower protection legislation, in practice protects the corrupt and the criminal, and not the whistleblower.
In each of the above examples, Attorney General Mark Dreyfus has the power to intervene, but he sits on his hands. Both he and Albanese have praised whistleblowers in the past. More legislation is planned but will it overcome the catch-22 situation that has rendered current laws ineffective in the cases of McBride and Boyle?
