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On trial for telling the truth

Today, lawyer and contributor to The Saturday Paper Kieran Pender on the people still facing prison for telling the truth.
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Late last week, the attorney-general dropped charges against whistleblower Bernard Collaery. It was a sensational development in a case that has outraged many.

But Collaery is not the only whistleblower on trial for revealing shocking misconduct by the government, the public service, or the army. What’s next for those cases?

Today, lawyer and contributor to The Saturday Paper Kieran Pender on the people still facing prison for telling the truth.

Socials: Stay in touch with us on Twitter and Instagram.

Guest: Lawyer and contributor to The Saturday Paper Kieran Pender.

Read Transcript

[Theme Music Starts]

##RUBY:
From Schwartz Media I’m Ruby Jones, this is *7am*. 

Late last week, the Attorney-General dropped charges against whistleblower Bernard Collaery. It was a sensational development in a case that has outraged many.

But Collaery is not the only whistleblower on trial for revealing shocking misconduct by the government, the public service, or the army. So - what’s next for those cases?

Today - lawyer and contributor to *The Saturday Paper* Kieran Pender on the people still facing prison for telling the truth.

It’s Tuesday, July 12.

[Theme Music Ends]

##RUBY:
Kieran, last week, the Attorney General Mark Dreyfus dropped the case against the whistleblower Bernard Collaery. So could you tell me a bit about the charges against him and what happened?  

##KIERAN:
Bernard Collaery and his client Witness K are the reason allegedly that we know about one of the biggest scandals in recent Australian history. 

##Archival tape -- Reporter:
“Bernard Collaery and his client, the former ASIS agent Witness K face court next month over allegations they revealed information about Australia's secret mission in 2004 to bug East Timor's Cabinet Room.” 

##KIERAN:
In the early 2000s, as Timor was recovering from its effectively war of independence, that had left it in ruins and impoverished and was rebuilding as a new nation. Australia was negotiating an oil and gas treaty in relation to resources under the Timor Sea. And rather than do that in good faith. Australia is alleged to have bugged Timor's cabinet office. 

##Archival tape -- Reporter:
In 2004, under the cover of a foreign aid project, Australian spies snuck into East Timor's cabinet room and installed listening devices. At the time, Australia was negotiating maritime boundaries over oil and gas reserves worth an estimated $40 billion.” 

##KIERAN:
Now Bernard Colleary was facing secrecy charges in relation to allegedly telling the ABC and conspiring to tell the Timor Government about that intelligence operation. 

But on Thursday last week, the Attorney-General Mark Dreyfus announced that he was dropping the case. 

##Archival tape -- Reporter:
More on this breaking story. The Commonwealth will end its prosecution of lawyer and former ACT Attorney-General Bernard Collaery. Four years after he was accused of leaking classified information.” 

##Archival tape -- Mark Dreyfus:
“My decision was informed by our government's commitment to Australia's national security and our commitment to our relations with our neighbours. This is an exceptional case.”

##KIERAN:
But Bernard Collaery is not the only whistleblower on trial right now. There's two more. And one of them, Richard Boyle, is going to be in court very, very soon.

##RUBY:
Right so Colleary is now a free man, after years of this case hanging over his head - which is good news for him. But you’re saying there’s a bigger picture here, there are other whistleblowers still on trial. So can you tell me more about that - about Richard Boyle? What did he blow the whistle on? 

 

##KIERAN:
Richard Boyle was working at the tax office, the ATO in Adelaide, and he became uneasy with the way it was handling a debt recovery against small businesses. 

##Archival tape -- Richard Boyle:
“We are failing to action correspondence in a timely manner.”

##KIERAN:
He was really concerned that the Tax Office was misusing its powers and so he spoke up. 

##Archival tape -- Richard Boyle:
We are making incorrect decisions and we are not following through and making sure that people's debt is correct.”

##KIERAN:
And he did that by playing by the rules. The rules say you speak up internally under a law called the Public Interest Disclosure Act or the PID act, And that law sets out these pathways for speaking up about wrongdoing, corruption, misuse of power to someone within your department if you work in government. 

##Archival tape -- Richard Boyle:
It's highly unethical for me to be garnishing a person and taking money out of their bank account if their debt is incorrect.” 

##KIERAN:
And so he did that. He spoke up and he said, hey, there's this toxic culture here where staff are being told to use these draconian powers in a way that I think is unethical, in a way that they're seizing funds from the bank accounts of taxpayers, from small business owners in a way that's not giving due consideration to their circumstances and issues of fairness. 

And the ATO said no, nothing to see here. They rejected that internal disclosure. 

##RUBY:
Okay. So Richard Boyle, he sees what he thinks is unethical behaviour and a toxic culture at the tax office. And so he makes an internal report about what he's observing, but it doesn't go anywhere. And the ATO says there has been no wrongdoing. So what does Richard Boyle do then? Does he try and raise these issues even further?

##KIERAN:
Exactly. So again, he's trying to play by the rules. He's concerned about this. So he goes to the tax ombudsman, the inspector general of taxation, and raises these concerns again and again. Nothing happens. 

But in the meantime, the tax office tried to silence Richard Boyle. There'd been some code of conduct allegations made against him, and they offered him a settlement deal for it to go away if he signed an NDA non-disclosure agreement. 

And that left him exasperated and worried that he wouldn't be able to raise awareness. And so he went to the media. 

##RUBY:
Hmm. So what was the impact then? Of this reporting, of these public allegations about the way the ATO was operating and the effects of this debt recovery programme that Richard Boyle had been so concerned about?

##KIERAN:
So eventually Boyle was vindicated. It took some time. It took almost 18 months, in fact. But eventually, the inspector general released a report that found that the ATO's use of garnishee notices had been problematic in certain areas, particularly in the Adelaide office where Boyle worked. 

And so you think this is a happy ending? Wrongdoings disclosed. Someone courageous speaks up and it's identified and addressed. But this isn't a happy ending, because in the interim, before those reports had come out that had vindicated the concerns that Richard Boyle had addressed. He was charged with a range of criminal offences relating to that whistleblowing and he faces a lengthy term of imprisonment if he's convicted. But it's important to say he's pleaded not guilty.

##RUBY:
Okay. So, Kieran, it sounds like Richard Boyle tried to go through the proper internal processes, but when nothing came of that, he felt he had to go public. And even when he did, some of what he alleged seems to have been pretty accurate. So if he did all of that, if he followed the rules and then ultimately was right in what he said, why is he still being prosecuted?

##KIERAN:
Richard Boyle is on trial for telling the truth. He's facing a whole range of charges. Originally, there were many more, but they've been narrowed down to just over 20 charges that relate to the way in which he gained and used government information in blowing the whistle. 

But what's really interesting is that at the same time as we've got this case ongoing, a case that's been rolling on for years now. Suddenly we've got this new Federal Government and a new Attorney-General in Mark Dreyfus, Attorney-General, that's previously been really outspoken in standing up for whistleblowers. And so there's an alternative just as the Attorney General intervened in the Collaery case. He could do that in the Boyle case too, and add another whistleblower, David McBride, who raised awareness about the potential war crimes being committed by Australian forces in Afghanistan to the list as well. 

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##RUBY:
Kieran, Mark Dreyfus, the new attorney-general, has the power to change things for Richard Boyle - and he’s intervened in the Colleary case quite sensationally - so, is there the possibility he will do the same for Richard Boyle? He’ll abandon the prosecution against him?

##KIERAN:
It's not all that clear. The Attorney-General has repeatedly said that the Bernard Collaery case was exceptional, and he said that again on Thursday when he dropped the case. And just recently, he said a letter to outgoing Senator Rex Patrick, who's long been a vocal advocate for whistleblowers, and he told Patrick that he thought in relation to the Boyle case that the Commonwealth director of public prosecution was independent and should be left to proceed with such things independently. And that Dreyfus's power to discontinue proceedings is reserved for very unusual and exceptional circumstances. So reading between the tea leaves of that letter, which Rex Patrick posted on Twitter, it didn't look as if he, the Attorney-General, was intending to intervene in the Boyle case or potentially as well as the McBride case.

##RUBY:
Hmm. I wonder, then, do you think that we should be moving past this kind of situation where it seems like it's at the the attorney general's discretion as to whether some whistleblowers end up being prosecuted and not others? 

##KIERAN:
We definitely need law reform and as all these three cases show. So even though the Collaery case has been discontinued, it's been four years of hell for Bernard Collaery. The government has come at him with millions of dollars. Endless government lawyers and barristers. Bernard’s been really fortunate to have really strong backing from the community and pro-bono legal support from law firms and some of Australia's top barristers. But it's been an incredibly difficult time for him. He's had to spend years, he's put his life on hold, he's put most of his legal practise. Collaery was a distinguished lawyer himself, remains a distinguished lawyer. He's had to put most of that on hold to fight this case, charges that really should never have been laid. 

And so we definitely need stronger whistleblower protections to ensure cases like these, cases like the Boyle case, David McBride, that these cases can never happen again. 

##RUBY:
And Kieran, Richard Boyle's case, will be before the court very soon. So what are we likely to see play out? 

##KIERAN:
This is a hugely important case, an important legal test case. It's the first time the whistleblowing law, the PID act has been used in this way as a shield from prosecution. So that legal scheme will be under the microscope and it's really important. If Boyle wins, then the case will be over. He'll be vindicated. If he loses, he'll go on trial before a jury later this year. 

But even if Richard Boyle is successful in the court, the cost of this will have been enormous at an emotional and financial level.

##Archival tape -- Richard Boyle:
But we're in severe financial stress. Debts are piling up. Our parents have helped us as much as they can.”

##KIERAN:
Boyle has spoken repeatedly about the impact the case has had on him. He's talked about the depression and anxiety he's suffered as a result. He said he almost died from the stress.

##Archival tape -- Richard Boyle:
I can't really see any light at the end of the tunnel at this stage.” 

##KIERAN:
And I think it's worth coming back to the fact that this is someone who worked for the government, worked for a government agency that has enormous powers over everyday Australians, saw something that he thought was wrong and tried to do the right thing. Journalists broke really important stories as a result of that whistleblowing. And yet Richard Boyle is on trial…

##RUBY:
Mhm. Kieran, thank you so much for talking to me about all of this.

##KIERAN:
Thanks a lot. 

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[Theme Music Starts]

##RUBY:
Also in the news today,

After two decades in prison, Jason Roberts has walked free following a jury decision that found him not guilty of murdering two police officers in 1998. Roberts’ conviction was overturned when the Court of Appeal found police misconduct corrupted the fairness of his original trial. Roberts was jailed in 2003 and served 20 years of his 35 year sentence.  

 

And…

 

Jenny West, the woman who was first offered the New York trade commissioner job which was later offered to former New South Wales deputy Premier John Barilaro, has told a parliamentary inquiry that when the job offer was rescinded she was told the position would instead be a “present for someone else”.  Mr Barliaro was later appointed to the New York position but withdrew following the political fallout. 

 

I’m Ruby Jones, this is *7am*. See you tomorrow.

[Theme Music Ends

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