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Whistleblowers should be protected not prosecuted

Whistleblowers have played a vital role exposing wrongdoing, holding power to account, and making Australia a better place.

But the first person who could go to jail in relation to war crimes in Afghanistan isn't a war criminal – but the person who helped expose it.

David McBride could spend years in jail for helping reporters tell the truth about wrongdoing.

And he’s not the only one - Richard Boyle is also facing trial, for blowing the whistle on misconduct at the tax office.

There is no public interest in prosecuting whistleblowers, and the government has the power to stop this.

We call on the Federal Labor Government to take action to protect the two whistleblowers facing jail, and fix the law to ensure whistleblowers are protected, not punished.

David McBride has pleaded guilty to leaking documents to journalists that formed the basis of “The Afghan Files” – a 2017 ABC expose revealing allegations of misconduct by Australian special forces in Afghanistan, including possible unlawful killings. McBride had earlier spoken up internally and to oversight bodies.

McBride will be sentenced in May and is almost certainly going to be the first person jailed in relation to war crimes in Afghanistan.

Richard Boyle worked at the tax office when he witnessed aggressive debt collection powers being used unethically to target people in vulnerable situations.

Boyle spoke up internally, then to the Tax Ombudsman, and then to journalists as a last resort. Boyle lost his legal bid to be declared immune from prosecution in March 2023, and is currently waiting on a decision in his appeal. He is due face trial this year.

Both David McBride and Richard Boyle spoke up internally first, and then to oversight bodies. Both are alleged to have spoken to journalists as a last resort.

Under federal law, whistleblowers are permitted to blow the whistle to journalists or politicians in certain circumstances – either in emergency situations or when internal whistleblowing fails. McBride was forced to withdraw his whistleblowing defence after a national security intervention by the government last year.

Both cases underscore the risks faced by whistleblowers in going public and the need for stronger laws.

The Federal Labor Government was elected on a promise of restoring integrity. They have affirmed their commitment to press freedom and accountability, by establishing the National Anti-Corruption Commission, convening a press freedom round table and moving forward with reforms to whistleblower protections, surveillance laws and secrecy offences – but refused to intervene to stop David McBride or Richard Boyle from facing jail.

By refusing to act, they have continued the Coalition Government's shameful legacy of punishing whistleblowers. It sends a chilling message to truth tellers around the country – speak out and face punishment.

Australia’s whistleblowing laws are broken. Our whistleblower laws should be designed to protect and empower whistleblowers, but with two whistleblowers currently facing jail time and no successful judgment ever handed down for a whistleblower under our whistleblower protection laws – it is clear that our laws have fundamentally failed.

Comprehensive reform is urgently needed, together with the establishment of a dedicated whistleblower protection authority, to ensure that whistleblowers are protected not punished.

The Federal Government is currently considering changes to our whistleblower protection laws, the Whistleblower Justice Fund made a submission to their consultation here.

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