‘Major blow’: Judge rules ATO whistleblower cannot rely on shield laws

A former Australian Tax Office employee-turned-whistleblower is set to stand trial over a series of offences after a judge ruled that Commonwealth whistleblower protection laws did not shield him from prosecution, in a decision labelled a “major blow” to Australian democracy.

But the reasons for the South Australian District Court’s decision, handed down on Monday, are suppressed on an interim basis, pending a hearing on Thursday.

ATO whistleblower Richard Boyle, if convicted, faces time in jail.Credit: Joe Armao

The Commonwealth Director of Public Prosecutions sought the suppression on the basis of potential prejudice to his criminal trial in October.

Richard Boyle worked in the ATO’s debt recovery division in Adelaide and made headlines in 2018 when he blew the whistle on aggressive debt recovery tactics used by the Tax Office, revealed in a joint media investigation by The Age, The Sydney Morning Herald and the ABC’s Four Corners.

He was charged in 2019 with a raft of offences, subsequently reduced to 24 charges, including recording conversations without the consent of all parties, making a record of protected information and in some cases passing the information on to a third party. If convicted, he faces prison.

Boyle had sought to rely on the Public Interest Disclosure Act, the whistleblowing law for public servants, to shield him from a criminal trial. He applied for a declaration from the South Australian District Court that he was immune from prosecution.

The PID laws shield a person who makes a “public interest disclosure from any civil, criminal or administrative liability (including disciplinary action)” for making the disclosure.

It is the first time this defence has been argued in court, and the precise scope of the defence is not yet clear. One of the issues that emerged in this case was whether a person is immune from prosecution for preparatory acts before a public interest disclosure is made.

The court dismissed Boyle’s application on Monday.

Kieran Pender, senior lawyer at the Human Rights Law Centre, said: “The court’s decision that Boyle’s whistleblowing on wrongdoing within the Australian Taxation Office was not covered by the PID Act shows that the law is utterly broken.”

The HRLC said several independent inquiries had found Boyle’s concerns were well-founded.

“Whistleblowers should be protected, not prosecuted – and the Public Interest Disclosure Act was enacted to ensure just that,” Pender said.

He said the decision was “a major blow for Australian democracy” and “this prosecution, and that of war crimes whistleblower David McBride, are unjust and undemocratic”.

McBride is facing trial this year over the leaking of a cache of documents to the ABC that formed the basis of its “Afghan Files” investigation.

“The whistleblowing laws enacted by Mark Dreyfus, when he was attorney-general in 2013, have now failed both men. There is no public interest in either prosecution and it is high-time that Dreyfus intervened to drop both cases, just as he dropped the [Bernard] Collaery case,” Pender said.

Collaery, a former ACT attorney-general, had been charged with leaking classified information about Australia’s alleged spying operation in East Timor. Dreyfus announced in July last year that the Commonwealth would discontinue its case against Collaery.

“The decision today only underscores the urgent need for law reform to ensure whistleblower protections are real and don’t just exist on paper,” Pender said.

“The attorney-general should prioritise comprehensive reform to the PID Act and the establishment of a whistleblower protection authority. Whistleblowers make Australia a better place and our laws need to reflect that.”

Former independent senator for South Australia, Rex Patrick, said: “No one in their right mind would ever blow the whistle inside the public service because there are no protections and they will likely end up in jail. Perhaps this is the way the government wants things to be.

“The attorney-general, Mark Dreyfus, knows that whistleblower laws are broken, yet he’s letting Richard hang out to dry because those broken laws don’t protect him.

“Mr Dreyfus can end this unjust prosecution at any moment under section 71 of the Judiciary Act; he’s just choosing not to.”

Under the Judiciary Act, the attorney-general may “decline to proceed further in the prosecution” of a person for a Commonwealth offence.

Greens senator David Shoebridge said that “if you wanted a case study in how broken our whistleblower laws are, you got that today: with a secret judgment exposing Richard Boyle to the potential of many years in jail”.

“We repeat our call to the attorney-general to stop the prosecution of Richard Boyle, David McBride and other whistleblowers who have been proven to have told the truth.”

Boyle initially raised his concerns internally, and then with the tax ombudsman, before speaking to the media as a last resort.

Dreyfus’ office has been approached for comment.

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