A publication of the Centre for Advancing Journalism, University of Melbourne


Shooting the messenger: the chilling effect of prosecuting whistleblowers

Defamation laws and public disclosure rules are being weaponised to discourage scrutiny, and we all suffer the consequences. With two high-profile whistle blowers facing potential jail terms, experts argue better protections are long overdue. Harshita Roy reports. 

Shooting the messenger: the chilling effect of prosecuting whistleblowers

Putting defamation laws and public interest disclosure rules in the spotlight: (Left to Right) Lawyer Kieran Pender, journalist Karen Percy and Rick Morton join host Sami Shah. The empty chair - a tradition at PEN International events - symbolises a writer who could not be present because they were imprisoned, detained, disappeared, threatened or killed. At this forum, the chair represented Julian Assange. Photo: Harshita Roy

Report by Harshita Roy

The “very real possibility” that two high profile Australians will soon be jailed for “exposing wrongdoing of powerful government bodies in the media” highlights failures in the laws and systems created to protect whistleblowers, says leading human rights lawyer Kieran Pender.

The paradox “is that we’re all better off” for the actions of these two former officials, the acting legal director of the Human Rights Law Centre told a forum in Melbourne last week discussing the impacts of whistleblower prosecutions on Australian journalism.

“No one says that national security was damaged because Australians now know that our [defence] force has committed war crimes in Afghanistan,” Pender said of the case of David McBride, the former Australian army lawyer who leaked documents to the ABC which formed the basis of a 2017 investigative series into the clandestine activities of special forces.

McBride is awaiting sentencing after pleading guilty last November to charges of stealing commonwealth information and handing it to the media, after an ACT supreme court upheld a commonwealth intervention to withhold key evidence. According to the Canberra Times, the federal government has spent more than $2.4 million on McBride’s prosecution.

No one says public interest was damaged by former Australian Tax Office debt collection officer Richard Boyle “speaking up internally, speaking up to the tax ombudsman, speaking up ultimately to the media” about debt recovery practices he observed and exposed.

Boyle argued that he was protected as a whistleblower by public interest disclosure rules, but the court rejected this. His trial on 24 offences brought by the Commonwealth Department of Public Prosecutions, at a cost of $280,000 so far, is due to commence in September.

“At the moment, almost every Australian employee is protected by a whistleblowing law of some kind or other,” Pender said.

But those laws – which date back to the 1990s and Queensland’s watershed Fitzgerald Inquiry into police and political corruption – “aren’t working … we didn’t provide the institutional frameworks and support that we needed.

“The first federal inquiry into the courts arrived in Australia three decades ago to this year. And they had said, ‘Look, if you set up this law, you have got to set up a whistleblower protection body to oversee it and enforce it to make sure it actually works.’

“And ultimately, we got the law, but we did not get the Whistleblower Protection Authority.”

Boyle’s case highlighted systemic gaps and failures, he said. The trial judge found that protection in law applies only to the disclosure of materials, not gathering the documents or recording conversations in preparing that disclosure. The Human Rights Law Centre is now appealing this finding.

“He is being prosecuted not for blowing the whistle to the media”, Pender said, but for “his preparatory conduct to blow the whistle internally” to the Tax Ombudsman under the Public Interest Disclosure Act – “an absolutely absurd situation”.

“I think it’s indicative of a framework that’s full of holes, full of loopholes – that this government recognizes at a federal level and at the state level is not good enough, that needs improvement,” Pender said. “But unfortunately the reform is slow.”

These high profile cases and others were having a chilling effect on investigative and public interest journalism, award-winning journalist Rick Morton, a senior reporter with The Saturday Paper, told the forum.

“Particularly in the last two years, there have been people in government agencies and bureaucracies who have seen and kept records of incredibly damaging internal government goings on, who are completely incapacitated in their ability to talk to anyone.”

Morton, whose coverage of Australia’s $1.8 billion “robodebt” scandal over a decade earned him two Walkley awards last year, said he was not the kind of journalist who would ordinarily encounter a whistleblower at the level of a McBride or a Boyle, but he did frequently deal with people concerned about basic questions of safeguards, wellbeing and expenses. For public servants, public interest disclosure rules requiring them to do everything possible internally first were being “weaponised” to prevent them pursuing these issues.

Defamation issues were also a huge constraint on reporting of public interest matters, Morton said. “There’s so much more that I just cannot run,” he said, disclosing that he had “managed to cost my company a lot of money in a defamation matter …. Just because I emailed some questions to an agency email address”.

Forum chair Sami Shah, a journalist and lecturer at the University of Melbourne’s Centre for Advancing Journalism, asked about the implications of last week’s landmark Federal Court judgment by Justice Michael Lee against Bruce Lehrmann in his defamation case against Network 10 and journalist Lisa Wilkinson.

The Lehrmann case and last year’s high profile judgment against former SAS corporal Ben Roberts-Smith in his defamation case against Nine and The Canberra Timeswhich Roberts-Smith is now appealing – represented “strikes for media freedom, for change” said journalist Karen Percy, federal president of the Media Entertainment and Arts Alliance media branch.

Nonetheless, defamation laws were being weaponised by the “rich and powerful” to “silence scrutiny”, Percy said, calling for defamation law reform.

On the issue of ensuring the security of sources, Percy said journalists were finding it “harder and harder to protect whistleblowers in this era of metadata”.

With hundreds of provisions of federal laws that could criminalise disclosure of information, journalists and whistleblowers might not even know what law they might be breaking if they communicate, Percy said. If someone tells a journalist about a potential wrong, and the journalist asks for evidence, “even soliciting that information can be against the law … it is very hard. You’re looking at legislation, you’re looking at technology, and just sheer bloody-mindedness about authorities wanting journalists to be punished.

“It actually suits the status quo for journalists to feel that way,” said Percy.

“I don’t know whether we might see another McBride or a Boyle … that is not good for our society.”

The discussion – co-hosted by the Centre for Advancing Journalism and PEN International Melbourne – ended with a unanimous call for timely whistleblower law reforms and a dedicated Whistleblower Protection Authority to guard whistleblowers against arbitrary state secrecy offences while safeguarding democracy and freedom of speech in Australia.

An audio recording of the discussion will be available via this site soon. 

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