Secrecy is our enemy: whistleblowers must be defended

Apr 19, 2023
Informant reports a scandalous fact.

One of the most hated aspects of the Morrison government was the secrecy. Over and again, we continue to shock to revelations of hidden wrongdoing long after their defeat last May.

It was a crucial aspect of the Coalition government’s efforts over a decade to diminish our democratic structures, shifting us towards competitive authoritarianism, and minority rule. It was integral to the malfeasance that caused us to sink 12 points – equal with illiberal Hungary – on Transparency International’s Corruption Perception Index.

Scott Morrison’s deeply secret 5-ministry scandal was partly orchestrated to keep still more secrets.

In one manifestation, Morrison stood as the only permanent member of a cabinet committee so that any meeting with others could be designated cabinet-in-confidence. Documents were wheeled into cabinet meetings or stapled to cabinet reports to grant cabinet-level secrecy.

The Coalition aimed to make acts of journalism and whistleblowing liable to up to 20 years imprisonment in 2018. AFP raids on journalists and media organisations took place as a result of the government’s fear of transparency.

Repeatedly the public has asked why people did not reveal the offences and norm violations?

Part of the problem was draconian restrictions and punishment imposed on people in the public service and working for contractors.

Australia has 849 secrecy restrictions criminalising the release of various kinds of federal government information. The publication of “government information is restricted by 11 general secrecy offences in the criminal code, 542 specific secrecy offences contained in 178 separate commonwealth acts, and 296 non-disclosure duties in 107 commonwealth laws.” Breaching any of these attracts criminal liability.

The point of sending asylum seekers and refugees offshore was in large part to keep Australians from seeing that these are people like us, particularly children with whom we might more easily empathise. The appalling abuses and crimes perpetrated against them, leading to children almost dying of Resignation Syndrome, were amongst the Coalition government’s darkest secrets.

The immigration department set the AFP on “Save the Children” workers who had made a covert submission to the Australian Human Rights Commission regarding the fact that they believed “the children have been subjected to multiple violations of their human rights and wrongdoing from multiple parties.” Workers had been blocked from speaking out by draconian confidentiality provisions in their contracts imposed by the immigration department.

Morrison devised the label of “on-water matters” to keep so much about our disgraceful disregard for international law and convention secret. Journalist Paul Farrell was pursued by the AFP at immigration department instruction for revealing Australian security boats’ incursions into Indonesian waters as part of repelling asylum boats.

Many of the best people in the public service have left a career where they had come to be treated as a servant class to political whims and ideologues’ missions. The fine people of the immigration department, with their nation-building role, left in droves over the Morrison and Dutton years, replaced with customs personnel who worked to keep out any potential non-white citizen as if they were pest-bearing woodwork. These small minds flaunted their new paramilitary uniforms and pointless medals, just as Scott Morrison did his grotesque trophy celebrating (wrongly) that he stopped the boats.

Most of the people working in immigration by the end of Morrison’s government had nowhere else to go, and many should face investigation for implementing inexcusable instructions. Obeying orders is never a valid excuse for human rights abuse.

The Robodebt Royal Commission revealed how desperately battered the Public Service in Canberra has become after years of Coalition disdain for their function. Professor Glyn Davis of the Thodey panel investigating the public service crisis described it as transforming away from a partnership with politicians to a “command and control system” where “public service becomes the delivery arm of political goals.”

Too many appointments were political. Too many senior people narrowed their focus to the task in front of them, to politicians’ demands, and ignored their duty to the nation. Too many people intimidated those who asked whether what was happening was legal or ethical.

Morrison ignored the findings of the Thodey report setting out the importance of a strong public service able to give frank and fearless advice. His government had little interest in policy supported by empirical evidence or the general good. As John Hewson said at the time, the government’s intent seemed to be to “consolidate political power.”

In the face of these threats, the last decade’s whistleblowers ought to be greeted as heroes. Public servants who strode against the humiliating tide of capitulation by their peers ought to be treasured.

Instead, only one of the whistleblowers has been rescued from continuing persecution in the processes set in motion by the last government. AG Mark Dreyfus felt that the persecution of Witness K’s lawyer Bernard Collaery was unconscionable and intervened. Public servants Richard Boyle and David McBride continue to suffer the financial, emotional and psychological pain of the system’s retribution. If convicted, they face lengthy prison terms.

Richard Boyle attempted to impress upon his superiors his concerns about the ATO’s “aggressive debt collection tactics.” When that failed, he went to the inspector general of taxation. There was no action on his justified complaints. The whistleblowing that followed the system’s failure to act on its own brokenness is still being vindictively pursued. We can only wish that Robodebt’s agents would have acted with such courage, but his persecution hints at why they didn’t.

David McBride, a former military lawyer, will be tried this November unless Dreyfus chooses to intervene. The revelations that he ultimately took to the ABC, when the internal system failed him too, became “The Afghan Files” revealing war crimes accusations. We need further military whistleblowers if soldiers did not merely, allegedly, act on their own bloodied impulse.

As Kieran Pender of the Human Rights Law Centre details, “Australia is a better place because they spoke up when they saw something wrong.” He has said, the failure of the Public Interest Disclosure Act to protect these men shows that the law is “utterly broken.” AG Dreyfus could act at any time but apparently does not want to be seen repeatedly to interfere with the actions of the courts.

We know there are 849 secrecy provisions in federal government because of an Albanese government report revealing it last month. Mark Dreyfus intends that to be the basis for extensive reforms.

Dreyfus has spoken about the crucial role of the public service in its ability to offer expert frank and fearless advice to politicians and their staffers. He has promised to extend whistleblower protections as part of his integrity framework. All this is admirable. It is not acceptable, however, for reforms to take so long that two of the best public servants continue to be tormented in the courts because of the Attorney-General’s department’s slowness to act.

A crucial part of extending whistleblower protections must be swift action to end these two prosecutions. Every politician and public servant must act knowing that they will be able to hold their heads up in the face of public scrutiny: secrecy is our enemy.

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