Boyle faces jail sentence for correctly whistling over ambiguous law

The Public Interest Disclosure Act 2013 (Cth) (the Act) is designed to protect whistleblowers in the Australian public sector from making disclosures of misconduct or corruption of which they become aware in the workplace. The Act also sets out the route to be followed by such a whistleblower.

Making a disclosure in the public interest is therefore a legal act. The drafting and enactment of the PID Act to protect disclosure is an act that shows that the federal government is facilitating the disclosure of corruption in the public sector, as you would expect in a liberal democracy with an open government.

And in this regard, section 10(1)(a) of the Act provides that if “an individual makes a disclosure in the public interest, the individual shall not be subject to any civil, criminal or administrative liability (including disciplinary action) for making the disclosure in the public interest”.

However, the South Australian court ruled last year that Australian Taxation Office whistleblower Richard Boyle was protected when he prepared his PID, which had since been reported in the media, but that there was still a problem with the “alleged wrongful prior acts”.

This means that the court held that Article 10 afforded him protection when making a disclosure in the public interest, which is a legal act, but that some of his preparatory acts in gathering evidence were unlawful and that immunity does not extend to these acts.

But if that is the case, why does Article 10 even mention criminal liability?

Completely above the table

Government agencies should have a PID procedure on their website to assist staff in making such disclosures. And the first step you should take is to file an internal complaint with an appropriate officer, the chief executive officer, or one of the government officials of the agency where the discloser works.

In its June findings on Boyle’s appeal against the District Court’s ruling that evidence gathering does not fall within the criminal immunity provided for in Section 10, the South African High Court found that “it was established” that the submission of Boyle’s PID of 12 October 2017 was in accordance with the law.

It was also found that Boyle’s “PID was not dealt with appropriately” by the relevant officer, who emailed him on 27 October stating that “the disclosure did not involve serious disclosable conduct” and that the investigation was therefore being dropped. And the court stressed “that this decision was incorrect”.

Thus, in accordance with the process set out in section 7A of the Act, as Boyle was not satisfied that the disclosure had been “reasonably dealt with” by his ATO superior, he referred his PID matter to the appropriate supervisory body, namely the Inspector-General of Taxation and Taxation Ombudsman (IGTO).

But IGTO assistance was not forthcoming, so Boyle, under section 26 of the Act, gave the whistleblower to the press, specifically the ABC, in what is known as making an external disclosure. And his evidence formed part of the 2018 Four Corners programme into ATO malpractice, entitled Mongrel Bunch of Bastards.

Boyle also sought to make a disclosure to lawyers, which is also permitted under section 26, and can be made where internal public interest disclosure has not been properly handled.

A legal professional disclosure may be made to any Australian lawyer and is for the purpose of obtaining ‘legal advice or professional assistance from the recipient in relation to’ a PID.

So all the revelations Boyle made were found to be perfectly legal.

Why is there no immunity from criminal liability?

As explained above, public interest disclosures are perfectly legal and apparently encouraged by the federal government. And as Section 10 of the Act states, when making a PID, an “individual shall not be subject to any civil, criminal, or administrative liability.”

Protection from civil liability means that the agency or an individual cannot take legal action against a reporter to seek damages in connection with the disclosure, while immunity from administrative liability prevents the agency from imposing sanctions on the employee, such as termination or demotion.

But the question remains why are whistleblowers given immunity from criminal liability if it is not to protect them from ‘alleged wrongful prior acts’ committed in preparation for proving their PID case, since making a disclosure is itself a legal act?

And after presenting the case first to his superiors at the tax office and then to the IGTO, Boyle wanted to take the next steps laid down in the law, namely making a disclosure to a lawyer and an external disclosure to the press. How could he do this without any evidence?

Ambiguously formulated

Boyle blew the whistle on the ATO breaching its protocol by engaging in a garnishee practice, or dipping into clients’ bank accounts to settle outstanding debts at an earlier stage in the debt collection process than permitted. And he maintained that it was having an oppressive impact on the public.

The IGTO conducted an investigation into the ATO’s asset seizure practices, which found that the policy breach had not been implemented to improve the ATO’s financial year-end figures, as Boyle suggested. However, the 2019 report concluded that the practice had been incorrectly applied and it was stopped.

Meanwhile, that same year, when the IRS admitted that Boyle had been a whistleblower about a repressive breach of protocol, Boyle was charged with 66 counts. These were later reduced to 24 offences, for which he is due to stand trial on 2 September.

Boyle faces a maximum prison sentence of 50 years, including seven for taking photographs of taxpayer records with a mobile phone, a further seven for secretly recording conversations with his former ATO colleagues and nine for uploading photographs of taxpayer records to an email account.

It does indeed seem rational to gather preliminary material to build your case when making a PID and you would think that you would be protected in that way. However, the original PID defence filed in the South Australian High Court and the recent Supreme Court decision on appeal have held that he is not protected.

The nine charges relating to evidence uploaded to an email account were part of Boyle’s attempt to make a legal professional disclosure.

Richard therefore provided his lawyer with a secure copy of the confidential tax information via an encrypted Proton Mail account so that it could be kept safe.

However, the court held that since Boyle’s attorney had never had access to the documents, there had in fact been no disclosure and therefore the former tax office employee could not be granted immunity from disclosing documents under the law.

And while all this may seem rather unfair and confusing, one thing is abundantly clear: the immunity from criminal liability in Article 10 is rather ambiguously couched in law and it seems that it is up to the whims of the judiciary of the moment how the hammer falls.

Very unusual and exceptional

Attorney General Mark Dreyfus drafted the PID Act when he was the country’s top lawmaker in 2013. While in opposition and the coalition brought a series of whistleblower prosecutions in 2018, he promised to reform the laws if returned to power.

Dreyfus adopted a first round of amendments in mid-2023. And a consultation paper proposing a more robust overhaul of the law, published last November, specifically sets out that a proposal is being considered to extend immunities to “preparatory acts” when making a disclosure.

Although Boyle’s case is not specifically addressed in the consultation document on the Phase 2 reform of public sector whistleblowing arrangements, the fact that the issue of extending immunity to preparatory acts is a key item on the list of possible changes is an acknowledgement of this error at the highest level.

However, under section 71 of the Judiciary Act 1903 (Cth), the Attorney-General can discontinue a prosecution where the officer considers it appropriate to do so. And Dreyfus has said he did not apply this to Boyle’s case because it is a power he can only exercise in “highly unusual and exceptional circumstances”.

While you would think the Attorney General would step in and exercise this power, he is considering amending his own decade-old law to address an identified problem. The problem could result in a citizen who has made a report in the public interest being sent away for a very long time.

So the case of ATO whistleblower Richard Boyle, who is about to be tried under failed laws that are likely to be changed to stop them acting in this way, certainly represents an extremely “unusual and exceptional circumstance”, especially as this very costly mistake for some is a result of his own legislation.