Whistleblower ruling ‘makes it harder for Australians to speak up’

Whistleblower ruling ‘makes it harder for Australians to speak up’

A former Australian Taxation Office employee who blew the whistle on aggressive debt recovery tactics by his former employer could not rely on Commonwealth laws shielding whistleblowers from prosecution when the steps he took to gather evidence were alleged crimes, a court has ruled.

Kieran Pender, senior lawyer at the Human Rights Law Centre, said the decision was “catastrophic for Australian whistleblowers” and would “make it harder for Australians to speak up about human rights violations, government wrongdoing and corporate misdeeds”.

ATO whistleblower Richard Boyle. Credit:Joe Armao

Richard Boyle worked in the ATO’s debt recovery division in Adelaide and made headlines in 2018 when he spoke out against his employer’s heavy-handed approach to some taxpayers 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 covertly recording conversations with ATO colleagues and using his mobile phone to photograph taxpayer information. If convicted, he faces a lengthy prison sentence.

Boyle had sought to rely on the Public Interest Disclosure Act, the whistleblowing law for public servants, to shield him from a criminal trial in relation to 23 of the charges. He applied for a declaration from the South Australian District Court that he was immune from prosecution.

But in a decision on Monday, partially redacted reasons for which were published on Thursday after a temporary suppression order was lifted, the court said Boyle could not rely on those protections.

It is the first time the defence had been argued in court. The laws shield a person who makes a “public interest disclosure from any civil, criminal or administrative liability (including disciplinary action)” for making the disclosure.

A key issue in the case was whether a person was immune from prosecution for preparatory acts before a public interest disclosure was made, or only for the specific act of making the disclosure.

Boyle told the court he believed he needed to collect evidence to back up his claims.

Judge Liesl Kudelka said the whistleblower laws did not “expressly prohibit or endorse the collection of evidence by a public official to support … [their] public interest disclosure”. However, the judge was not satisfied the laws protected public officials “in the performance of an investigative role which the PID Act does not contemplate they undertake”.

The interpretation of the law advanced by Boyle and his legal team “invites a finding that Parliament intended to sanction a public official engaging in some form of ‘vigilante justice’ prior to making a public interest disclosure”, Kudelka said.

“One difficulty with imputing such an intention is that such unlawful conduct may range from minor to egregious,” Kudelka said.

Kudelka said Boyle’s legal team had “sought to limit the range of unlawful conduct that Parliament may have intended to sanction by submitting that, for an individual to be protected, the conduct must reasonably form part of the process of making a public interest disclosure”. The judge rejected this interpretation of the law.

“The silence of the legislature regarding the limits of the criminal conduct and the test proposed by [Boyle’s legal team] … gives public officials no certainty and little guidance,” the judge said.

The judge further found that Boyle had not made a disclosure to his lawyer that would be protected under the whistleblower regime.

Pender, from the Human Rights Law Centre, said the decision “blows a major hole in the protections available to whistleblowers”.

“The provision at issue in this case is mirrored in every Australian whistleblowing law, which collectively protect 95 per cent of the Australian workforce, across the private sector and federal, state and territory public sectors,” he said.

“By narrowly interpreting the scope of whistleblower protections as applying only to the act of blowing the whistle and not prior preparatory conduct, this judgment dramatically weakens these protections.”

Pender said “the EU whistleblowing directive and laws in Britain, France and Ireland all explicitly protect reasonably necessary conduct related to the disclosure – such as accessing or securing relevant information. Australian law should, too”.

“Richard Boyle did the right thing in exposing wrongdoing at the tax office. He should be protected, not prosecuted. This judgment only underscores the need for the Attorney-General Mark Dreyfus KC to drop this case and urgently fix the law. Every day that this case continues compounds injustice for Boyle and further undermines whistleblower protections for all Australians. It must end,” he said.

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