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Whistleblower prosecutions and Australian democracy

By Adam Henry - posted Monday, 13 June 2022

Australians content themselves with the notion that as a democratic society our way of life is inherently free of authoritarian tendencies, that our system is not merely benign, but noble. We point to the rule of law, the rule of parliamentary governance, elections and private enterprise. We do not like to dwell on the issues that lurk in the shadows.

Australian citizens lack the ability to extract basic answers from their government, or Commonwealth agencies, about almost every important issue you can conceive. We cannot prevent the Cabinet from declaring war, sending troops to foreign lands, from selling weapons overseas, or ignoring international law. At the federal level, we currently have no independent commission to investigate corruption. The Australian government and commonwealth agencies can hide almost any malfeasance behind the veil of secrecy, often using the banner of national security.

In 2004, the Australian Secret Intelligence Service (ASIS) bugged East Timorese cabinet rooms in Dili. At the time, Australia was negotiating with Timor-Leste over how the revenues from lucrative oil and gas reserves would be shared. Witness K, an ASIS agent, raised serious concerns about the operation. He was given approval by the Inspector-General of Intelligence and Security to engage lawyer Bernard Collaery.


When the bugging operation was publicly exposed, and the government of Timor Leste used international law to seek legal remedy, the persecution of Witness K and Collaery by the Commonwealth began in earnest. While Witness K pled guilty and has now been sentenced, Collaery continues to fight.

Major David McBride is being prosecuted for giving information about alleged war crimes in Afghanistan to the ABC. The subsequent Brereton Report into the conduct of the ADF in Afghanistan found credible evidence for 39 non-battle related killings committed by the SAS. He continues to be prosecuted. Richard Boyle faces years in prison for exposing the unethical behaviour of the ATO in relation to debt collection practices.

In these cases, the Australian state decided that protecting itself from embarrassment is more important than democracy, justice and the public interest. The right to a speedy, open and fair trail, judged by your peers, simply does not exist should the Australian state deem it inconvenient. The right of the accused, as with Bernard Collaery, to even see information crucial to their defence, has been denied. How then can any citizen believe that the game is not rigged?

Let us see what the Australian state apparently finds acceptable.

In the case of Julian Assange, he has been left by successive Australian governments to the mercy of the British and Americans. He is charged with no crimes under Australian law and is an Australian citizen. The legal processes being used against Assange are a travesty , and a clear threat to journalistic freedom. In the case of the ASIS bugging operation, Alexander Downer (foreign minister at the time), later became a paid consultant for Woodside Petroleum. Following retirement, Ashton Calvert, Secretary of the Department of Foreign Affairs and Trade (DFAT) at the time of the bugging, became a member of the Woodside Board . Woodside has a long-standing stake in oil and gas exploration in the Timor Sea. In 2004 at the time of the bugging by ASIS, the organisation was headed by the late David Irvine. In 2013, ASIO raided the Canberra home of Witness K and the legal offices of Collaery, seizing Witness K's passport and their documents for the Timor-Leste case in the Hague. The head of ASIO in 2013 was David Irvine!

The many conflicts of interests at play here, even at the most superficial level, are extraordinary.


The Commonwealth Director of Public Prosecutions (CDPP) is meant to be independent and to carry out prosecutions carried in the public interest. The Attorney General who approved these prosecutions was Christian Porter. We can ask, how do the prosecutions of Witness K, Collaery, McBride or Boyle serve the Australian public interest? On what possible basis can the CDPP pursue whistleblowers who have acted in good faith and exposed such unethical behaviour? What does this all say about the independence and integrity of the CDPP?

At present, the Australian state routinely hides its secrets behind the veil of national security. National security allows the censorship and redaction of documents for any number of reasons, and it is ubiquitously useful. In the cases of Bernard Collaery and David McBride, both facing years in prison, their right to fair and open trial simply does not exist in practice. When facing the wrath of the Australian state, Australian citizens possess only those rights the government of the day allows.

These cases demonstrate how any political interference in the legal system destroys public trust. If there is no trust in the fairness of the law, how can our democracy survive? There have been indications from the incoming Albanese Labor government that they recognisethe seriousness of what is at stake. Several incoming independents to our next federal parliament have been outspoken in their support for whistleblowers. The next Australian government must implement a strong federal anti-corruption commission, improve whistleblower legislative protections, and conduct a review into the independence of the CDPP. It will also need to address the issue of Julian Assange and bring him back to Australia.

On principle, we cannot accept the politicization of our legal processes. This undermines fairness, accountability, and hobbles the ability of anyone to present a public interest defence. This is self-evident in the cases of Collaery, McBride and Assange. The legitimacy of our democracy moving forward will depend on such measures. The incoming Albanese government now has an opportunity to stop the rot, but will it seize the chance? We will see.


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About the Author

Adam Hughes Henry is the author of three books, Independent Nation - Australia, the British Empire and the Origins of Australian-Indonesian Relations (2010), The Gatekeepers of Australian Foreign Policy 1950–1966 (2015) and Reflections on War, Diplomacy, Human Rights and Liberalism: Blind Spots (2020). He was a Visiting Fellow in Human Rights, University of London (2016) and a Whitlam Research Fellow, Western Sydney University (2019). He is currently an Associate Editor for The International Journal of Human Rights (Taylor and Francis).

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