Richard Boyle is a hero. So why are we treating him like a criminal?

Whistleblowers should be protected, not punished. It’s a simple message that Attorney-General Mark Dreyfus needs to heed after a devastating loss to whistleblower protections emerged in the South Australian District Court on Monday.

The court ruled that former Australian Taxation Office employee-turned-whistleblower Richard Boyle will have to stand trial over a series of offences after a judge decided that Commonwealth whistleblower protection laws did not shield him from prosecution.

Dreyfus knows the Public Interest Disclosure Act he set up is broken. And now he knows it doesn’t protect whistleblowers. It is time to step in and help Boyle, who must feel like he is suffering death by a thousand cuts.

Australian Taxation Office employee-turned-whistleblower Richard Boyle will have to stand trial.Credit: Ben Searcy

Boyle went public in April 2018 as part of a media investigation into the ATO that I was doing for The Age, The Sydney Morning Herald and ABC’s Four Corners. He revealed that his area of the ATO in Adelaide had been instructed to use more heavy-handed debt collection tactics on taxpayers who owed the agency money.

Months before speaking out, he followed protocol and did a public interest disclosure to the ATO. His concerns were investigated by the ATO and dismissed. He only came to the media because he was worried about the small businesses in the ATO’s firing line.

Days before the story went public, Boyle was raided.

In January 2019, he was slapped with 66 criminal charges, including telephone tapping and recording of conversations without the consent of all parties, and making a record of protected information, in some cases passing that information to a third party.

The charges were later reduced to 24, reducing the time he would serve in jail if found guilty, but it could still be several decades.

He applied for immunity on 23 of the charges in South Australia’s District Court. The case was pitched as the first time whistleblowing laws would be tested as a shield in criminal proceedings.

On Monday, the court found Boyle wasn’t immune from prosecution of the charges.

If this decision isn’t successfully appealed, he will face a jury in October with the spectre of a long stint in jail if he loses.

ATO whistleblower Richard Boyle, left, with then-senator Rex Patrick in July 2019.Credit: Dominic Lorrimer

Boyle had no personal gain in speaking up. He always maintained he was doing so because he believed it was the right thing to do.

He was vindicated in a series of inquiries and reports that followed the media investigation, including a report by the Inspector General of Taxation, which found “problems did arise in certain localised situations for a limited period, particularly so at Adelaide’s local ATO site”.

Another investigation by the Australian Small Business and Family Enterprise Ombudsman found that the ATO’s use of garnishee notices was “excessive”.

A Senate inquiry into why the ATO dismissed Boyle’s allegations outlined in his Public Interest Disclosure statement found the ATO investigation to be “superficial”.

Former senator Rex Patrick, who was on the Senate committee, said at the time that the findings should have been enough for the attorney-general to stop the prosecution.

On any level, this latest decision should be a wake-up call to Dreyfus to intervene. He did it with whistleblower Bernard Collaery, and painted himself as a defender of whistleblowers.

Collaery is a hero who was also fortunate to have East Timor fighting in his corner at a time when the government wanted to ensure the small neighbouring country didn’t feel aggrieved enough to move closer to China.

The government has agreed to improve the lot of whistleblowers, but the treatment of Boyle and others is a reminder of how far behind we are in protecting those who speak up – and it is hard to fathom why.

Cut through the noise of federal politics with news, views and expert analysis from Jacqueline Maley. Subscribers can sign up to our weekly Inside Politics newsletter here.