Labor government urged to drop prosecutions against whistleblowers and ramp up protections

Original Source: ABC News, Nassim Khadem

The Labor government is being urged to drop the prosecution against public-servant-turned-whistleblower Richard Boyle, among others. 

Jeff Morris never set out to be a whistleblower.

But he is the man who helped expose corrupt practices at the Commonwealth Bank's financial planning arm that led to the banking royal commission.

Despite knowing the dire fate that awaited him when he blew the whistle, he felt he had no choice but to act at the time.

"You accept the consequences, and you go ahead and do it," Mr Morris tells ABC News.

Jeff Morris blew the whistle on corrupt practices at Commonwealth Bank's financial planning arm that led to the banking royal commission. (ABC News: John Gunn)

"In my case, I saw a great number of old, vulnerable people who'd been taken advantage of. They were going to have their lives destroyed and be left struggling — and in some cases, destitute — if somebody didn't take some action."

In October 2008, Mr Morris went to the Australian Securities and Investment Commission (ASIC). He complained about a high-level management conspiracy at CBA to cover up for a rogue financial planner and thereby defraud hundreds of his clients of the "tens of millions" in compensation to which they were entitled for his alleged gross malpractice.

Mr Morris said the cover-up included systemic file sanitation and the rogue planner being brought back from suspension and promoted to go on and dupe and deceive the victims.

"It went on for a period of 10 years before we got the royal commission," Mr Morris said.

"When I told my wife what I was going to have to do … her words to me were, 'You're going to take on the CBA. Are you insane? They will destroy you.'"

He said even investigators at the corporate watchdog, ASIC, warned him at the time of his revelations that protections for whistleblowers were weak and he would have to proceed at his own risk.

Post the banking royal commission, CBA vowed to transform and become a "better bank".

But for Mr Morris, the personal and financial toll of blowing the whistle on CBA was immense. It destroyed his marriage at the time. His wife left home with his children who were then aged seven and five.

"You do these things thinking you'll make it up to your family afterwards, and sometimes you don't get the chance," Mr Morris said.

He and his wife reunited some years after he blew the whistle, but she was diagnosed with pancreatic cancer and died just as the banking royal commission started in 2018.

Mr Morris was also diagnosed with post-traumatic stress disorder (PTSD) — a psychiatric disorder that can occur in people who have experienced or witnessed a traumatic event.

He says apart from getting sacked by CBA, he suffered constant surveillance and harassment, as many whistleblowers do when they make revelations about wrongdoing.

"My career in the industry was over. People cheer whistleblowers, but nobody employs them."

Currently there is inconsistency in whistleblower protections, and no single body to protect whistleblowers.

As the Albanese government works on getting legislation ready for its highly anticipated corruption watchdog, Mr Morris is now among many players calling on the government to boost protections for whistleblowers.

They argue that without an effective whistleblowing regime, corruption could run rampant. 

'Current system of whistleblower protections is a joke'

While some whistleblower reforms were introduced 2019, giving greater protections and rights to corporate whistleblowers, there are still concerns there are not enough protections in both the private and public sectors.

A 2017 parliamentary inquiry called for outdated laws protecting public- and private-sector whistleblowers to be overhauled. The Liberal government at the time agreed to many of its recommendations wholly or in part.

The committee holding the inquiry suggested the government set up a new whistleblower protection authority, which would be responsible for investigating whistleblower revelations.

This "one-stop-shop" body would also be able to conduct investigations if whistleblowers personally suffer consequences for exposing misconduct and would be able to compensate them for losses suffered.

But no such body was ever implemented, and since then several whistleblowers have been hit with criminal charges.

Three whistleblowers, Richard Boyle, David McBride and Bernard Collaery, are currently being prosecuted for working with journalists to expose serious wrongdoing.

Mr Boyle blew the whistle on unethical debt recovery practices within the Australian Taxation Office (ATO).

Richard Boyle and his wife, Louise Beaston. Mr Boyle is facing the prospect of life in prison after blowing the whistle on the ATO's debt-recovery practices. (Supplied: Richard Boyle)

Mr McBride, a former military lawyer, spoke up about alleged war crimes committed by Australian forces in Afghanistan.

And Mr Collaery, a lawyer, is alleged to have blown the whistle on Australia's espionage against Timor-Leste.

Mr Boyle's case, which is set for court hearings next month, is the first major test case of protections available under the Public Interest Disclosure Act (2013).

The Commonwealth Director of Public Prosecutions (CDPP) has already reduced the charges against Mr Boyle from 66 to 24. 

But if found guilty of each of the alleged offences, Mr Boyle could still face a maximum sentence that means he spends the rest of his life in jail.

"The current system of whistleblower protections is a joke," Mr Morris said.

"Whistleblowers are left completely defenceless. And the institutions sadly — both public as well as private — can use the legal system as a blunt instrument to beat them into submission."

This, he says, means many people fear reprisals and choose to stay quiet rather than expose wrongdoing.

David McBride, a former military lawyer, spoke up about alleged war crimes committed by Australian forces in Afghanistan. (ABC News: John Gunn)

Mr Morris wants a dedicated whistleblower agency to process whistleblower complaints, to be given the power to protect whistleblowers from retaliation and to be able to award compensation to the whistleblowers.

"I'm not talking about a reward; I'm talking about compensation for what they give up by making that choice," he said.

Mr Morris says if there were better protections, more people would come forward and expose wrongdoing.

"A whistleblower could come forward without fear of having their life ruined … there would be hundreds of people coming forward, instead of the odd one or two."

Government urged to drop criminal charges against whistleblowers

Independent senator Rex Patrick had been campaigning for the former government to drop criminal charges against Richard Boyle. He is now pushing the new government to do it.

Senator Patrick will hold his seat in parliament until the end of the month, and until then is fighting for what he says is justice for Mr Boyle.

Independent Senator Rex Patrick had been campaigning for the former government to drop criminal charges against ATO whistleblower Richard Boyle. (ABC News)

The senator has written to Attorney-General Mark Dreyfus about Mr Boyle's case, urging him to intervene and take the extraordinary step of dropping all charges.

A spokesman for Mr Dreyfus told ABC News they would consider changes to whistleblowing laws but did not go as far as saying they would drop the charges.

"The Attorney-General will closely examine what needs to be done to ensure we have proper laws to protect whistleblowers," Mr Dreyfus said.

Attorney-General Mark Dreyfus has powers under Section 71 of the Judiciary Act to stop the prosecution of whistleblowers. (ABC)

Senator Patrick says the Attorney-General has powers under section 71 of the judiciary act to stop the prosecution of Richard Boyle.

"It's an unusual power that shouldn't be used in ordinary circumstances," he said.

"But it would be improper not to use the power in circumstances, such as Richard Boyle where he blew the whistle."

Senator Patrick notes that Mr Boyle first made a public interest disclosure within the ATO internally, and then made a complaint to the tax ombudsman before he made his revelations as a part of a joint Fairfax-Four Corners investigation.

Senator Patrick also notes that follow-up reviews confirmed Mr Boyle's revelations of aggressive debt recovery practices at the ATO at the time were valid.

"He (Richard Boyle) is a hero — he is a person who we all ought to look up to," Senator Patrick said.

He says apart from dropping the prosecution against Mr Boyle, the government needs to introduce stronger whistleblower protections.

"Right now, there are all sorts of ambiguities in circumstances where someone blows the whistle — they are normally a David, going up against the Goliath," Senator Patrick said.

"And in circumstances where ambiguity exists, it means that the whistleblower has to be able to afford to engage lawyers to be able to protect them — it shouldn't be like that."

"People ought to be able to front up, honestly make a public interest disclosure, and know that they are fully protected, and there can be no repercussions for what it is that they've alleged — even if it turns out that what they've alleged is not correct."

In opposition, Labor had been vocal about other whistleblowers, including Australian Julian Assange, who for past three years has been in high-security detention at Belmarsh Prison in the United Kingdom. This is after seven years of asylum within London's Ecuadorian embassy in a bid to avoid arrest.

Julian Assange has spent over 10 years in political asylum, prison, and house arrest. (Getty Images)

United States authorities have sought Mr Assange's extradition from the UK so he can stand trial on charges of espionage and computer misuse relating to hundreds of thousands of leaked cables from the wars in Iraq and Afghanistan.

While in opposition, Anthony Albanese — the newly elected Prime Minister — is reported to have told a February 2021 caucus meeting that "enough was enough" and he "can't see what's served by keeping [Julian Assange] incarcerated".

Mr Albanese is also a signatory to the Bring Julian Assange Home Campaign petition.

But since taking office, neither Mr Dreyfus nor Mr Albanese has yet expressed what they will do for Mr Assange or the three whistleblowers facing prosecution.

'Deeply troubling flaws in our whistleblowing law'

Senior lawyer at the Human Rights Law Centre, Kieran Pender, also wants the federal government to drop the prosecutions against the three whistleblowers and does not think Mr Assange should be extradited and prosecuted in the US either. 

Kieran Pender, a senior lawyer at the Human Rights Law Centre, wants the new government to drop charges against whistleblowers and reform laws. (ABC News: Greg Nelson)

"We think that all three prosecutions are not in the public interest, and we're urging the new Attorney-General Mark Dreyfus to intervene and drop all three cases," he said.

"Despite telling the truth, despite calling out wrongdoing, these three whistleblowers are on trial. That points to deeply troubling flaws in our whistleblowing law."

He says the Human Rights Law Centre has looked at every whistleblowing case mounted in Australia.

It found that there are only a handful of instances where whistleblowers had been successful, and only one at a federal level where a whistleblower has received compensation under whistleblowing law for suffering retaliation.

"Too often when whistleblowers speak up, they suffer at work, they get demoted, they get discriminated against or they lose their job," Mr Pender said.

Australia once led the world in terms of strong legal protections for whistleblowers, but now was well behind.

"We haven't kept pace with international developments, and the lack of practical legal support for whistleblowers means that even those laws that do exist aren't working in practice," he said.

A new EU whistleblowing directive has "raised the game" on whistleblower protections, making whistleblower protections more accessible in court, more expansive and attached with more practical support.

Mr Pender also notes that in the United States, whistleblowers are often financially rewarded for speaking up and can bring court actions directly against the company committing the wrongdoing.

"[These laws] have been used to great success to hold companies to account and has saved the American taxpayer billions of dollars in fraud and corruption," he said.

Many people who come to his organisation for help often get scared of exposing what they know because they see high-profile whistleblowers being prosecuted.

"There is no doubt that there are Australians out there who know about misconduct and wrongdoing — whether in corporate Australia or in the federal state or local government — that aren't speaking up," Mr Pender said.

"It would be simple but incredibly powerful message for the new government to drop these whistleblower prosecutions and urgently reform whistleblowing law."

Whistleblowers become 'collateral damage' without effective compensation

AJ Brown is a professor of public policy and law at Griffith University and a board member of Transparency International Australia.

He says the new Albanese government has an opportunity to fix the laws as well as bring in a Whistleblower Protection Authority as part of its new national anti-corruption commission.

AJ Brown, professor of public policy and law at Griffith University and board member Transparency International Australia, wants a new body set up to protect whistleblowers. (ABC News: Mark Leonardi)

He says recent reforms to private sector whistleblower protections in 2019 mean they are "vastly superior" to the laws that govern public sector whistleblowers, but both sets of laws make it too hard to mount a complaint and to get compensation if they suffer detrimental action as a result of blowing the whistle.

He says ASIC and banking regulator APRA are the current bodies where whistleblowers can make a complaint, but that: "If you go to the wrong regulator, to the ACCC for example on a consumer protection or competition issue, or if you blow the whistle to the Australian Federal Police on a criminal offence of major fraud, those regulators would not be covered unless you had first gone to ASIC."

And to prove that somebody does cause detrimental action against a whistleblower, Professor Brown says, "it's effectively got to be almost like a criminal offence of reprisal".

"There's got to be satisfaction that somebody actually caused that detriment with the purpose of harming somebody or as a direct result of them having blown the whistle — that can be extremely difficult to show," he said.

Professor Brown notes that while both private and public sector whistleblower laws purport to offer strong protections, in reality "the rules in both are quite confused and they're inconsistent".

He says Australia's laws are still very reliant on whistleblowers themselves having the legal resources and the money to be able to go to court to fight for their own protection.

He says a new Whistleblower Protection Authority could "stand up for the little people — whistleblowers who do the right thing by speaking up about wrongdoing".

He notes that currently there's little scope for either ASIC or for the Commonwealth Ombudsman to investigate if a whistleblower is mistreated and offer them reasonable compensation.

"Too often still, it's the whistleblower who ends up being the sort of collateral damage, if you like, for identifying something which has gone wrong," Professor Brown said.

"It shouldn't just be up to that employee to have the resources to mount what is a very unequal legal fight for basic compensation so that their career can be resumed or progressed, after having been interrupted by this whole event of having blown the whistle on wrongdoing."

He says Australia cannot have an effective national anti-corruption commission if people can't blow the whistle to it safely.

He also notes that the current prosecutions against Mr Boyle, Mr Collaery, and Mr McBride send a "very bad message to people who might be thinking about doing the right thing and speaking up".

Canberra lawyer Bernard Collaery is alleged to have blown the whistle on Australia's espionage against Timor-Leste. (ABC News: Andrew Kennedy)

"There's a real question about whether it's in the public interest to keep prosecuting them [the three whistleblowers] for having revealed what they revealed," he adds.

CBA whistleblower Jeff Morris remains optimistic that change is on the way.

CBA whistleblower Jeff Morris remains hopeful that there will be changes to whistleblower laws under the new Albanese government. (ABC News: John Gunn)

"I'm hoping for great things from this new government," he said.

"It should be remembered that they strongly supported the banking royal commission. And they've demonstrated a much greater moral compass than the previous government.

"They've made a commitment to a federal ICAC, and I see whistleblower reform as being very much complementary."

The reporter, Nassim Khadem, was involved in the joint Fairfax-Four Corners investigation into the ATO during her time employed at Fairfax Media.