Australia’s National Focus Area E Detail Integrity System

FOCUS AREA E: PUBLIC INTEREST WHISTLEBLOWING –

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A strong 4 A connected Federal Integrity National Integrity Commission APlan B 5

Open, trustworthy Public interest decision whistleblowing making 6 Enshrine full ‘shield C laws’ for public interest 10 E journalism and disclosure 7 Enforce consistent, world- leading whistleblower 9 Fair, honest protections democracyD

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Overview WHAT SHOULD BE DONE INTRODUCTION – – Australia stands at a crossroads. Its track record in developing strong Integrity and accountability rely legal rules for whistleblowing show on the ability of citizens to speak the way. Recent innovations provide up when they suspect or witness opportunity to restore effective wrongdoing – especially the officials protections, if extended across and employees who actually know all sectors and fully supported by what’s going on within institutions. proper implementation.

Together with freedom of the media to National controversy over legal threats report what society needs to know, public to journalists, acting on whistleblower interest whistleblowing remains the single information, have also brought choices for most important trigger, in practice, for the respecting the public interest roles of the integrity mechanisms that keep institutions media into sharp relief. healthy, thriving and ethical. Simple, overdue law reforms can restore Aspects of Australia’s private sector public confidence, by recognising the whistleblower protections already lead the public interest as a defence to disclosure world. However, public sector protections or publication of confidential information, lag behind. Across both sectors, loopholes, wherever this serves the purpose of inconsistencies and lack of enforcement ensuring wrongdoing is identified and undermine effectiveness, often leaving dealt with. them as paper tigers. Overhaul of whistleblower protection laws, As government secrecy legislation grows, internal and external to government, has Australia’s strong traditions of independent been promised from all sides of politics. journalism have been compromised. Fulfilling these promises, to a high level, Indeed the rights of all citizens to receive is central to effective regimes for public and share official information, in the public interest disclosure and media freedom. interest, have been steadily disappearing.

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ACTIONS NEEDED ACTION 10 – ENSHRINE FULL ‘SHIELD ACTION 9 LAWS’ FOR PUBLIC INTEREST JOURNALISM ENFORCE CONSISTENT, AND DISCLOSURE WORLD-LEADING Stronger journalism shield laws to ensure WHISTLEBLOWER full confidentiality of publicinterest sources, PROTECTIONS ensure media freedom and protect journalists from prosecution for receiving Law reform to ensure public interest and using whistleblower disclosures whistleblowers (private and public) have effective access to remedies for any Clearer rules for when public detriment suffered for reporting, whistleblowing is protected, including: whether through acts or omissions • Simple, realistic principles for justified Consistent best practice thresholds disclosure of wrongdoing to journalists across sectors for onuses of proof, by public or private employees public interest costs indemnities, exemplary damages and civil penalties • Removal of blanket carve-outs for ‘intelligence information’ and ‘inherently A reward and legal support scheme harmful information’ from federal based on returning a proportion of the whistleblowing and journalism financial benefits of disclosures directly protection laws to whistleblower welfare Clear, legislated public interest defences A whistleblower protection authority to for any citizen for unauthorised receipt assist reporters, investigative agencies or disclosure of official information, and regulators with advice, case support, where revealing wrongdoing. enforcement action and remedies for detrimental conduct.

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whistleblowers under the Corporations Background Act 2001. Internationally, with other countries such as the European Union also making large advances, some aspects of WHY WE MUST ACT Australia’s laws set a new benchmark for – whistleblower protection. Australia has long recognised, Whistleblowing is crucial because recent encouraged and sought to protect research confirms it is the single most important trigger for bringing integrity public officials who speak up about concerns to light – and often the first wrongdoing – at least in theory. (see Figure 5.1). Queensland and South Australia first legislated whistleblower protections In one of the world’s largest studies, in 1991 and 1993, followed by all surveying over 14,000 employees across states and territories, and finally the 46 public and private bodies in Australia federal government in 2013. and New Zealand, ‘reporting by employees’ was identified as the single most important In 2019, the federal government also trigger – not just by ordinary workers and leapfrogged these public sector laws, with governance professionals, but by long overdue protections for private sector managers themselves.

Figure 5.1: The Q: How important is each of the following importance of whistleblowing. for bringing to light wrongdoing in or Source: Brown, A J et al, Clean As A Whistle: by your organisation? Whistling While They Work 2, Key fi ndings and 1 2 3 4 5 actions, Brisbane: Griffi th Not important A little Somewhat Important Very important University, August 2019, Fig.3 (p.8) Accidental discovery

Client, public or contractor complaints

External investigations or audits

Internal audits and reviews

Routine internal controls

Management observation

Reporting by employees

KEY Employee respondents (n=7,135) Governance professionals (n=1,922) Manager respondents (n=4,774)

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Protecting public interest whistleblowing and journalism Most whistleblowing is also internal. provides public confidence Of over 4,200 whistleblowers surveyed, 72 percent only ever reported their and ensures accountability. concerns internally.

Very often this means wrongdoing is dealt with, in the fastest way. But even if In June 2019, the federal Attorney-General not, only 26 percent of whistleblowers then confirmed that public sector laws needed went outside – usually next to regulators rewriting, endorsing judicial criticisms that or professional bodies. Only two percent they were ‘technical, obtuse… intractable’ did not report internally first, and only one and simply not working. percent went directly to a journalist or social media. In August 2020, the Parliamentary Joint Committee on Intelligence and Security When whistleblowers do go public, the repeated this call, and recommended community knows that Australia’s strong reforms to criminal procedure to limit traditions of public interest journalism unwarranted investigations of journalists. are vital. A free and independent media A further Senate inquiry is ongoing, with ensures integrity issues are acted on, many calling for stronger reform. triggering inquiries, accountability and reforms that would otherwise never occur. The question is not whether to act, but how. Making the protection of public However, just as most whistleblowers interest whistleblowing and journalism more continue to suffer detrimental outcomes than just a theoretical principle requires even when found to be correct, even more than simple tweaking of laws. It the journalists telling their stories, as a requires a practical vision for restoring last resort, have come to be targeted by confidence that protections are both Australian Federal Police investigations appropriate and real. (see context: ‘Discouraged, intimidated and discredited’: war crimes, whistleblowers Already, Australia has a long history of and the media). laws that mean little in practice. Defects in legislation even affect the new private In April 2020, Australia dropped five sector laws. Lack of legal support and points on the World Press Freedom Index. enforcement explain the high proportion Formerly described as the ‘regional model’ of whistleblowers, both public and private, for media freedom in the Asia-Pacific, left without remedies when theoretically it was ‘now characterised by its threats protected. Whistleblowers, journalists and to the confidentiality of sources and to citizens can still be charged with dealing investigative journalism.’ in official secrets, in circumstances where the public interest should prevail, without In principle, everyone agrees Australia’s access to any public interest defence. integrity systems need strengthening to fix these problems. Until reform is broad and effective, supported by strengthened and In September 2017, a major inquiry by enforcement, these major weaknesses the Parliamentary Joint Committee on in Australia’s national integrity system will Corporations and Financial Services remain. As ABC journalist David Speers has made wide-ranging recommendations for written, ‘it feels like we’ve regressed when whistleblower protection reforms, only half it comes to transparency… We are more in of which have been implemented. the dark than ever before.’

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of detriment suffered for reporting, whether ACTION 9 through acts or omissions.

The new Corporations Act protections ENFORCE CONSISTENT, provided whistleblowers with the world’s first rights to seek compensation and other WORLD-LEADING remedies not only where they experience direct, knowing reprisals, but also where WHISTLEBLOWER organisations fail in their duty to prevent detrimental acts, as well as omissions PROTECTIONS causing harm.

– This was a breakthrough – in principle – Every Australian jurisdiction has because most of the damage experienced legislated whistleblower protections, by whistleblowers starts with failures in covering all public sectors and support, turning many into ‘collateral damage’ as a result of the process, even most of the private sector. However, when proved correct. Often, organisations’ despite advances, including world- failures to support and deal properly with leading aspects under the Treasury whistleblowing are not because they intend Laws Amendment (Enhancing harm to their employees but simply Whistleblower Protections) Act through negligence. 2019, the regimes remain patchy, inconsistent and often fail to However, federal laws covering both translate into protection in practice, sectors undermine this breakthrough. They particularly when most needed. still require, in effect, a deliberate, knowing intention to cause harm before civil remedies At federal level, basic reforms to the can be accessed. A mental element (‘belief Public Interest Disclosure Act 2013 (Cth) or suspicion’ that a protected disclosure was were recommended in 2016 by a statutory made) must still be shown to be a ‘reason’ review by Philip Moss AM, followed by for the detrimental act or failure (PID Act, ss the even more comprehensive 2017 plan 13-19; Corporations Act, ss 1317AC(1), AD(1)). of the Parliamentary Joint Committee on Corporations and Financial Services. This is out of kilter with best practice, not only under the spirit of Australian laws, but Among the half of its recommendations OECD guidance that courts should be free still not addressed, the private sector to grant remedies where whistleblowing lacks a single, comprehensive Act to leads in fact to wrongful harm, even if bring coherence to the different schemes evidence of a direct intention to damage in the Corporations Act, Taxation Act, the whistleblower is weak. National Disability Insurance Act and other legislation. Reform of public sector laws Similarly, the Parliamentary Joint should similarly be aimed at a consistent, Committee recommended clear separation coherent and workable approach across all between the broad basis needed for civil Australian institutions. and employment remedies, and narrower grounds for proving criminal responsibility At the heart of reform is the need, across for reprisals – where showing that harm both public and private sector laws, to stemmed from the specific ‘reason’ that ensure public interest whistleblowers have someone believed the victim to be a effective access to remedies for any type whistleblower, makes more sense.

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In other areas, the latest Corporations Act Finally, the poor results from current protections provide a good basis for more regimes demonstrates that even the consistent, best practice legal thresholds best legal protections are paper tigers, across the different sectors. By updating without legal resources for whistleblowers other laws to match these standards, to activate their rights, and institutional steps will be taken towards world-leading support to assist and enforce more regimes, including: effective responses to whistleblowing in the first place, by public sector bodies, • expanding definitions of unlawful employers and other regulators. detriment to cover all relevant types of damage;

• reversing the onus of proof for Poor results from current remedies, recognising that whether deliberate or negligent, acts and regimes demonstrates omissions resulting in harm can be very hard to prove; that even the best legal protections are paper tigers. • exemplary damages and civil penalties where organisations fail to implement their own whistleblowing policies; As also recommended by the 2017 • public interest costs indemnities so inquiry, a whistleblower protection authority whistleblowers are not intimidated from is needed to assist reporters, investigative bringing claims. agencies and regulators with advice, case support, enforcement action and remedies The 2017 Parliamentary Committee for detrimental conduct. also recommended in favour of a reward and legal support scheme, returning a For the federal government, the need proportion of the financial benefits of was reinforced by official evidence from the disclosures directly to whistleblower welfare. existing lead agency, the Commonwealth Ombudsman, that despite the legal Following established precedents in the protections, it had no power or role for United States, Canada and elsewhere, taking action or seeking remedies for such a scheme enables eligible whistleblowers – not even to ‘investigate whistleblowers, and their lawyers, to claim whether or not reprisal action has occurred’. a percentage of the financial benefits that their disclosures bring – whether through As well as ensuring organisations fulfil fines for corruption or other wrongdoing, their obligations to protect whistleblowers or recovery of fraud or other public sector under their own policies, a fully resourced or corporate losses, identified through whistleblower protection authority is whistleblowing. needed to ensure workers can access their rights, especially the most vulnerable and Including the types of safeguards least powerful. Internationally, the need for recommended by the Committee, this effective institutional arrangements is clear. approach provides a means of funding The potential roles and powers of a national better legal support for whistleblowers, in whistleblower protection commissioner addition to another path for individuals to have been suggested in draft laws including claim compensation and recognition for the Australian Federal Integrity Commission their public interest role. Bill. All it takes is political will.

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that medical and hotel staff who tried to In the news raise the alarm were simply not listened to. Elsewhere, as parts of the aged care system broke down, other health workers THE MOST spoke up, helping limit the deaths.

IMPORTANT Elsewhere, Australian governments learned the lessons. When whistleblowers INTEGRITY TRIGGER: in Perth spoke up about problems in their own quarantine hotels, warning ‘little action IN GOOD TIMES was being taken to address issues when they emerged’, the government acted AND BAD within 48 hours. Defence Force personnel were deployed to assist with security, so – far successfully preventing the problems The vital role of whistleblowing in from repeating. Australia’s integrity systems has long been evident – but rarely as clearly Long before COVID-19, the importance of whistleblowing was clear – along with as during the COVID-19 pandemic. the inadequacies of Australia’s laws in response. Across the world, in fact, a wide international coalition of organisations For Australian Taxation Office (ATO) have pointed to the ‘early warning role’ officialRichard Boyle, the system began whistleblowers play in ensuring the to break down when he raised concerns, Photo 5.1: ‘Nurse effectiveness of crisis responses: as a tax debt recovery specialist, about Jen’, one of several ‘controversial and aggressive’ recovery Melbourne COVID-19 ‘When decisions are taken in emergency practices which he feared were devastating whistleblowers, conditions, often away from democratic businesses and destroying livelihoods. gives evidence in scrutiny, whistleblowers… are the August 2020 to the corrective fail-safe mechanism in any Failed attempts to have the problems Commission of Inquiry into Victoria’s hotel society, especially in an international health addressed internally, and with the quarantine failures. crisis when the public’s right to know can Inspector-General of Taxation, led to Mr Source: Victorian Inquiry have life-or-death implications.’ Boyle going public in 2018 soon after being live hearing

The OECD agreed that the pandemic ‘highlighted—in many ways—that the world needs whistleblowers’, reinforcing their role as ‘one of the only ways that misconduct will be able to be detected early and addressed.’

Among many other events, the failure of effective whistleblowing regimes was confirmed in June 2020, when Australia’s most serious coronavirus outbreak unfolded in Melbourne.

As breaches of hotel quarantine were identified as the cause, it became clear

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terminated by the ATO. The revelations by ABC’s Four Corners and Fairfax media led to systemic and operational flaws in ATO debt recovery being identified by two separate reviews, sparking a raft of reforms. A Senate inquiry described the ATO’s handling of Mr Boyle’s original disclosure as, at best, ‘superficial’.

Nevertheless, Richard Boyle continues to face 24 criminal charges relating to his disclosures, fighting them with crowd- sourced funds. Whether the prosecution remains in the public interest, how the whistleblowing regime failed, and whether the legal protections should apply to overrule these charges are set to be important questions at trial. laws to help lead to fairer outcomes Photo 5.2. Richard for others. Boyle, former Some of Australia’s most important Australian Taxation Office debt recovery whistleblowers have helped pave the way However, alongside well known specialist attends for the laws now in place. When sales problems with Australia’s 2013 public court in Adelaide. executive James Shelton blew the whistle sector whistleblowing laws, corporate Credit: AP / David Mariuz to the Australian Federal Police, then whistleblowers are still navigating legal the media on systemic bribery of foreign minefields even after recent reforms. officials by Securency Ltd – owned by the Reserve Bank of Australia – there were no meaningful national level whistleblowing laws in place. Photo 5.3: Reserve Bank company whistleblowers Brian Together with Brian Hood, company Hood and James secretary of Note Printing Australia, Shelton meet for the Shelton’s evidence was crucial in what first time in 2013, became Australia’s biggest bribery after playing parallel prosecutions (see Focus Area A: A roles in bringing Connected National Plan). Both men were Australia’s biggest foreign bribery pushed out of their companies, but served scandal to light. as federal witnesses until the cases were Credit: Jason South finalised with several executives and both companies convicted, resulting in more than $21 million in fines.

Despite the federal government securing those penalties, Hood received only a small settlement from his former employer, while Shelton received nothing for the impact on his career, nor for the time, legal costs and stresses of almost a decade supporting the prosecutions. Even if too late for them, they expected new corporate whistleblowing

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Photo 5.4. Former Commonwealth Bank of Australia whistleblower Jeff Morris, helped trigger numerous parliamentary inquiries and the Royal Commission into Banking Misconduct. Credit: AP / Joel Carrett

Financial planner Jeff Morris was one of ‘I think the people who have drawn up this a group of whistleblowers to the Australian bill have perhaps lost sight of the fact that, Securities & Investments Commission to a prospective whistleblower, the (ASIC), who helped trigger new laws by prospect of having to navigate a legal revealing fraudulent and exploitative abuse minefield with the possibility of getting of customers in 2008 by a subsidiary of the some compensation is only marginally Commonwealth Bank. more attractive than the current situation… and the vast majority of people won’t Over the following years, with a huge come forward.’ toll on Morris’ career and life, the disclosures led to parliamentary inquiries into the financial planning industry and performance of ASIC, and ultimately, the Hayne Royal Commission into Misconduct in Banking, Superannuation and Financial Services (2017-2019). All along the way, it became clear that new whistleblower protections were crucial, as mapped out by the Parliamentary Joint Committee on Corporations and Financial Services.

When half the committee’s recommendations were implemented by the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019, Morris welcomed the initiative – but queried when Australia would see the other half. He told the Senate Committee reviewing the legislation that much more was still needed:

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Since 2011, initial journalism shield laws ACTION 10 have been introduced federally and in most parts of Australia. These support the right of journalists not to identify their ENSHRINE FULL sources in legal proceedings, protecting whistleblowers from exposure and ‘SHIELD LAWS’ FOR journalists from conviction for contempt PUBLIC INTEREST of court. However the events of 2019-2020 JOURNALISM AND confirmed the need for a much stronger system of “shield laws” to ensure full DISCLOSURE confidentiality of public interest sources, – ensure media freedom and protect journalists from prosecution for receiving Even if internal and regulatory and using whistleblower disclosures. whistleblowing processes are strengthened, public integrity in A bare minimum of improvements was Australia will always depend on the recommended by the Parliamentary Joint Committee on Intelligence and Security ability of whistleblowers to go the in August 2020. These would seek to media, when necessary – and the ensure criminal investigation powers such ability of independent journalists to as search and seizure are only exercised report on wrongdoing, in the public against journalists when truly necessary, interest, without fear or favour. through mechanisms such as a public interest advocate to contest search In June 2019, the weak state of warrant applications. protections for public whistleblowing and journalism was vividly displayed. Not only However, these reforms – while useful – whistleblowers were targeted with federal would not go far enough. The Law Council criminal charges for revealing serious of Australia has long supported the need wrongdoing to the media. Journalists for such special procedures for the issuing themselves – from News Limited and the of warrants to investigate journalists, but ABC – found themselves under criminal has also called for defences for public investigations for receiving and acting on interest journalism to extend across federal the information (see context: ‘Discouraged, secrecy legislation. This would mean only intimidated and discredited’: war crimes, truly criminal behaviour by journalists – whistleblowers and the media). outside their public interest reporting roles – would ever be worth investigating in the It was already recognised that public first place. interest journalism faced an uncertain future in the face of growing secrecy and The Alliance for Journalists’ Freedom has national security laws. In May 2019, the maintained, in its evidence to the further Alliance for Journalists’ Freedom (AJF) Senate inquiry, that reforming specific laws called for a comprehensive Media Freedom would have value, but ‘a far more practical Act to address declining protections and effective approach’ remains a Media in Australia. Freedom Act to codify the role of the media and its relationship to government.

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In addition to protections for journalists, Similarly, for these automatic public clearer rules are needed for when public interest exemptions from confidentiality whistleblowing itself remains protected, to work, they must extend to disclosures so that public interest whistleblowers are of all information that is genuinely in the not dependent simply on preservation of public interest to reveal. This requires the media confidentiality in order to escape removal of blanket carve-outs for certain, detrimental outcomes. This includes wide classes of information from federal additional reform of whistleblowing whistleblowing and journalism protection legislation, above, to enact simple, laws – especially those relating to realistic principles for justified disclosure ‘intelligence information’ (PID Act, s. 41) and of wrongdoing to journalists by public or ‘inherently harmful information’ (Criminal private employees. Code, ss.121, 122).

‘Simplifying the public interest test’ for federal government whistleblowers was confirmed as a vital objective by Protections for journalists as the Parliamentary Joint Committee on Intelligence and Security, reinforcing the well as clearer rules for public need for both reform of the Public Interest Disclosure Act 2013, and whistleblowers are needed. greater consistency.

This is vital not only because of the Currently any public disclosure of differences between public and private ‘intelligence information’ will mean that sector approaches, but because neither whistleblower protections simply cease provides a model. In addition to inserting to apply – even though this includes any requirements that are unlikely to be met information ever held or generated by an in many deserving cases, they define ‘the intelligence agency, even if nothing to do public interest’ from competing directions. with national intelligence or security, and The Corporations Act requires only that even if there would no risk to national a whistleblower have a reasonable belief security if it were revealed. that the public interest is satisfied, whereas the PID Act imposes an objective test that ‘Inherently harmful information’ as the disclosure must not be contrary to the defined by the Criminal Code is similar. public interest, with a long list of criteria. Its disclosure means that defences against criminal conviction for either whistleblowers A base test is whether ‘it is reasonable or journalists cease to be an option, despite in all the circumstances’ for the disclosure the definition including vast categories to be made to an external party ‘to ensure of information that involve no ‘inherent’ that it is effectively investigated’. This is risk of harm. the basic principle underpinning different, incomplete but simpler provisions in NSW, Queensland, Western Australia and the ACT, as well as the United Kingdom and Ireland. A priority action is a simple, all- encompassing set of principles for when and why it is reasonable for a whistleblower to go public.

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Sensible international principles are Now is the time to re-equip our legal available to help restore these “carve-outs” system with these important integrity safety to a narrower, logical form, as well as better valves. Without them, not only mechanisms for ensuring that national whistleblowers and journalists but any security whistleblowers have suitable citizen can run the risk of persecution, disclosure channels. rather than protection, for playing their role in revealing and acting on wrongdoing Finally, these principles extend within the integrity system. beyond simply whistleblowers revealing wrongdoing, or journalists publishing about it. Clear, legislated public interest defences are needed for any citizen who receives or Whistleblower protections discloses unauthorised official information, for the purpose of revealing wrongdoing. It are crucial for ensuring the is not only worker disclosures or journalism that can attract penalties for dealing with integrity system can receive official information without authority, under Australia’s ever-expanding secrecy laws. and act on wrongdoing.

Whereas the common law once supplied such defences, with relative clarity and simplicity, the growth of decades of secrecy legislation means this is no longer the case. Parliamentary Committees have concluded since at least 1994 that uncertainty over the scope of any remaining common law protection is exactly why general statutory protections are needed. Creeping criminalisation of official information means that anyone could potentially be caught – including a wide range of businesses, community organisations and professionals dealing with government information.

The Australian Law Reform Commission recommended, in 2010, wider reform to give courts the flexibility and discretion to consider when the public interest in disclosure outweighs the merits of secrecy, in any circumstances where a criminal breach is alleged. In September 2020, the UK Law Commission followed suit with recommendations for the Official Secrets Act to make available a statutory public interest defence for civilians – plus a ‘residual’ public interest defence for public servants for the ‘rare and exceptional’ cases where internal processes do not work.

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In the news ‘DISCOURAGED, INTIMIDATED AND DISCREDITED’: WAR CRIMES, WHISTLEBLOWERS AND THE MEDIA – receiving and further disseminating – Photo 5.5: Australian On 5th June 2019, the Australian by publishing – official federal government Federal Police officers information ‘stolen’ by a Defence execute their ‘Afghan Federal Police shocked the nation Files’ raid on the whistleblower. by raiding the Ultimo headquarters ABC’s Sydney Ultimo of the Australian Broadcasting headquarters, 5 June In October 2020, 17 months after the raid, Corporation (ABC), seeking the 2019. Source: ABC the AFP finally dropped the investigation. News files of two national reporting According to the CDPP, while there was a team journalists, Dan Oakes reasonable chance of securing a conviction andSam Clark. against Oakes, the public interest was not served by pursuing a prosecution. This unprecedented event was also not isolated. The day before, in Canberra, The raids themselves had been described the AFP had raised the Canberra home by ABC chair Ita Buttrose as a ‘seismic’ of a News Corporation journalist, Annika event, ‘clearly designed to intimidate’ Smethurst, over an unrelated article about the media. The Australian Press Council plans by the Australian Signals Directorate denounced the police approach for its to monitor Australian citizens. ‘chilling effect on journalists’.

Nine months later, the High Court ruled Bret Walker SC, former national security unanimously that the AFP had no legal legislation monitor, warned the raids justification for the search warrant executed were a calculated attempt to ‘deter rather on Ms Smethurst’s home. Forced to than encourage’ inquiry into the affairs of admit that the raid could have been better government by anyone ‘outside officialdom’. handled, the AFP dropped the investigation Other journalists and commentators noted as to whether, by receiving and publishing it would have a chilling effect, not only the leaked information, she had broken on journalists and outsiders, but public the law. servants thinking of blowing the whistle.

However, it was a full year after the raids From across the world, the New York before the AFP handed a brief of evidence Times stressed the danger of intimidating to the Commonwealth Director of Public those who told ‘uncomfortable truths’. The Prosecutions (CDPP), recommending BBC described it as a deeply troubling charges against the ABC’s Dan Oakes for attack: ‘when the media is becoming less

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where did their information come from – who was the whistleblower?

In 2017, Oakes and Clark had published the Afghan Files. Their stories first revealed to Australia that its most highly decorated special forces troops, stationed in Afghanistan, appeared to have engaged in war crimes including murders of unarmed, defenceless Afghan citizens.

The ABC’s source was former Army lawyer, David McBride – who even before the Australian Federal Police raids on the ABC, had been charged by federal authorities with stealing secret information and providing it to Oakes, and whose free across the world, it is highly worrying prosecution continues. Photo 5.6, Photo 5.7: if a public broadcaster is being targeted for Dan Oakes, (top left) doing its job of reporting in the According to McBride’s legal defence the ABC journalist public interest’. team, he approached the ABC and who received and became a public whistleblower after published the ‘Afghan However, the drawn out threat of criminal Defence dismissed concerns he had raised Files’ (bottom) spent action provided a chilling wake-up call. internally from 2014 about conditions in over two years under It showed that when whistleblower Afghanisation and the culture of impunity criminal investigation before prosecutors disclosures are used as part of journalists’ among Australia’s special forces. agreed charges were normal public interest role, Australian not in the public law leaves them completely exposed to In March 2020, while the AFP were interest. prosecution, conviction, fines and jail. still preparing their request for charges Source: ABC News

Law Council of Australia president Pauline Wright said the result ‘simply highlights that the capacity for rigorous, public interest journalism in Australia is currently at the mercy of discretionary decisions of a single Commonwealth law official or the Attorney- General. … This is repugnant to the rule of law and diminishes Australia’s credibility as a supporter of the right to freedom of expression and the critical role of a free and informed media in liberal democracy.’

The narrowness of Oakes’ escape continued to sound warning bells throughout the media.

However, the most chilling side of the story was still playing out. What was the subject of the ABC national reporting teams’ coverage? Was it justified? And

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Photo 5.8: Former Australian Army lawyer and accused Afghan Files whistleblower, David McBride addresses supporters and media outside the ACT Supreme Court. Credit: AAP / Rod McGuirk

against Oakes, and the CDPP continued chief General Angus Campbell made no to prosecute McBride, the truth of the reference to the ABC reporting that first reporting was put beyond doubt. brought the atrocities to public attention.

The ABC obtained and broadcast helmet- However, he drew attention to the many cam footage of an Australian solider Defence Force personnel who had assisted executing an unarmed Afghan villager the inquiry, including witnesses who had in 2012. Previously, an army inquiry had confirmed what occurred. He also pointed cleared the solder of wrongdoing, recording to the environment created by the soldiers the incident as an act of self-defence. Now, responsible for the killings, and its effect on the soldier was immediately stood down the ability of other special forces soldiers and referred to the Australian Federal Police to blow the whistle. According to General for investigation for murder. Campbell, ‘those who wish[ed] to speak up were allegedly discouraged, intimidated He was to be the first of many. In and discredited.’ November 2020, the Inspector-General of the Australian Defence Force finalised While reinforcing the importance of a four-year inquiry into the rumours about whistleblowing, apparently General Afghanistan. It uncovered at least 23 Campbell did not mean Mr McBride, Dan separate incidents between 2005 and 2016, Oakes – or any of the other public servants, in which 25 Australian defence personnel personnel or journalists influenced by were alleged to have killed 39 unarmed and criminal investigations to keep their heads defenceless civilians or prisoners. down or stop reporting.

Releasing the shocking war crimes report and confirming the referral of the soldiers for criminal investigation, Defence

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