Australia’s still dangerously secretive, and it’s our democracy that’s at risk

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When it comes to corruption, mismanagement and abuse of power, there is a clear known unknown. We can be sure that across Australia there are scandals that remain hidden in both government and the corporate world, concealed by the corrupt, the unethical and the powerful.

There will be abuses of authority, millions (perhaps billions) of dollars skimmed off in crooked scams, cases of mismanagement and malpractice, sexual assault, abuses of human rights, countless innocent victims, and a few good people who know what’s going on but are too afraid to speak out.

David McBride (left), who went to the ABC to expose alleged war crimes in Afghanistan, and Richard Boyle (right) who blew the whistle about wrongdoing at the Tax Office.Credit: Alex Ellinghausen/Joe Armao

We know this because, for a long time, we’ve watched precious few courageous whistleblowers rely on journalists to tell their stories. There’s Jeff Morris, the Commonwealth Bank insider who revealed corrupt practices at its financial planning arm and triggered the banking royal commission; Alan Parkinson, who went to the ABC in 1997 to expose the failures in the clean-up of nuclear waste at Maralinga; and nurse Toni Hoffman, who revealed the gross medical malpractice of a surgeon in Bundaberg.

But in Australia, the laws that protect both whistleblowing and media freedom – two of the mechanisms essential to a working democracy – are manifestly failing. They reflect a troubling lack of transparency that once prompted The New York Times to declare something most journalists already knew: “Australia may well be the world’s most secretive democracy.” The Times made its remark in 2019 after the Australian Federal Police infamously raided two news organisations, hunting down the whistleblowers for two stories based on leaked classified information.

Attorney-General Mark Dreyfus hosted a media freedom round table in February but since then, he has failed to act on key reforms.Credit: Alex Ellinghausen

The Times listed several reasons for its bold statement, starting with the lack of any explicit constitutional protection for freedom of speech including media freedom. It then pointed to our draconian secrecy laws, which provide heavy jail terms for public officials who go public with official information – even when in the public interest.

Then there is a web of legal restrictions designed to protect privacy but also help corrupt officials hide their misdeeds, defamation law weighted heavily in favour of anyone exposed by the media, a hopelessly ineffective Freedom of Information system, and a slew of more than 90 national security laws passed since 9/11 related to secrecy, espionage and terrorism.

One University of Queensland study of espionage laws found, “a significant risk of criminalising legitimate journalism and that this, in combination with their staggering complexity and uncertain scope, is contributing to the ‘chilling’ of public interest journalism in Australia”. For the public, that means fewer whistleblowers, fewer investigative stories, and less transparency.

“No other developed democracy holds as tight to its secrets,” declared the Times.

In response to the 2019 raids, the powerful Parliamentary Joint Committee on Intelligence and Security held an inquiry that acknowledged the problem and made 16 recommendations designed to free up the media. Attorney General Mark Dreyfus (then the shadow attorney-general) sat on the inquiry and signed a statement that said the recommendations should be, “a bare minimum – a starting point – for reform”.

After three years of inaction by the Coalition government, the attorney-general finally hosted a media freedom round table in February where he promised to implement the reforms. To date, none of the recommendations have been acted upon.

The situation for whistleblowers is just as bad. Those who have had the courage to expose wrongdoing frequently report losing their jobs, losing money, suffering mental health problems including PTSD and, in several prominent cases, are even facing trial.

There are more laws of course. Australia has a Public Interest Disclosure Act (2013) designed to protect public servants blowing the whistle, and the Corporations Act (2001) for those in the private sector.

In a recent campaign, the Human Rights Law Centre compiled a list of every whistleblowing case to go to a court judgment over the past 30 years and found only one that led to a whistleblower receiving compensation for the retribution they experienced after taking action. Even then, the compensation was a measly $5000.

Again, the attorney-general has acknowledged the problem and promised to fix the law, but it is hard to take him seriously while the two most prominent whistleblowers of recent times are still facing trial and prison time for what most of us would consider acts of heroism.

The first is David McBride, the source of the stories that triggered the AFP raid on the ABC. McBride, a former Defence Department lawyer, revealed evidence that exposed alleged war crimes committed by Australian troops in Afghanistan. In two months, he will become the first person to face court in relation to the alleged war crimes, ironically not someone accused of those crimes, but the man who exposed them.

The other is Richard Boyle, the Tax Office official who revealed in a joint media investigation by this masthead and the ABC’s Four Corners unconscionable debt collection practices by the ATO in South Australia.

His disclosures triggered more inquiries, apologies and overdue reforms. Yet he is still facing 24 charges including taping private conversations without consent and taking photos of taxpayer information, actions he says were necessary to gather evidence.

The attorney-general has the power to drop the charges, reform whistleblower laws, and protect journalists and their sources, including introducing a media freedom act. Unless he does so, Australia will remain dangerously secretive, to the detriment of all but the most powerful.

Peter Greste is a professor of journalism at Macquarie University and executive director of the Alliance for Journalists’ Freedom.

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