Former tax officer Richard Boyle will front an Adelaide courtroom in just over a fortnight for a hearing that will almost certainly change the fate of whistleblowers who follow in his footsteps.
It has been five years since Boyle blew the whistle on what he says he saw as an egregious wrong.
Boyle, then an Adelaide-based Australian Tax Office debt collection officer, began raising concerns in 2017 about the legality of the ATO’s aggressive pursuit of debts using garnishee notices, a practice which has been criticised for destroying the lives of families and small business owners across the country.
Now, he is facing 24 charges in the South Australian district court, including the alleged use of a listening device to monitor private conversations, disclosing protected information and recording someone’s tax file number.
On 4 October, Boyle will attempt to convince the court that he should be shielded from prosecution by virtue of Australia’s whistleblowing laws. If he fails in that hearing, and any subsequent appeals, he will face trial.
A ‘model’ whistleblower
Experts are under no illusion as to the importance of Boyle’s case.
It will for the first time provide a major test of Australia’s much-criticised whistleblowing protections.
Boyle is considered by observers as a model whistleblower. He appears to have done everything required of him under the Public Interest Disclosure (PID) Act, the laws that protect government whistleblowers.
He raised his concerns internally within the ATO in October 2017, prompting an internal investigation.
Boyle was dissatisfied with the conduct of that internal investigation. His view was later vindicated by a secretive Senate inquiry, which found the ATO’s investigation of Boyle’s concerns to be “superficial” and substandard.
The whistleblowing laws allow people like Boyle to then approach third parties.
Boyle did just that. He approached the inspector general of taxation and the ABC’s Four Corners, which aired an episode in 2018 relying partly on Boyle as a source. Reviews by the inspector general and the small business and family enterprise ombudsman would later substantiate his concerns.
Kieran Pender, a senior lawyer at the Human Rights Law Centre, says Boyle did the right thing by speaking up about wrongdoing within a powerful government agency.
“Boyle has been vindicated by three independent inquiries, which collectively found that the ATO had misused its debt recovery powers, and that the ATO’s internal investigation of Boyle’s whistleblowing was superficial,” Pender says. “Yet he finds himself on trial for telling the truth.”
Despite the case’s importance, suppression orders sought by commonwealth prosecutors threatened to stymie attempts by the media to freely report on proceedings.
Prosecutors feared public reporting of the preliminary whistleblower defence case would compromise Boyle’s chance at a fair criminal trial and sought to block the media from accessing key documents and covering aspects of the whistleblower case.
That prompted an intervention by Guardian Australia, represented by barrister Stephen McDonald SC, who argued the suppressions were too broad and unnecessarily infringed on the principles of open justice.
On Friday, South Australia district court judge Liesl Kudelka decided to lift the suppression and grant the media access to documents outlining Boyle’s case. She did so after Boyle indicated his own opposition to the suppressions.
The decision will pave the way for wider media reporting of the Boyle proceedings.
The case for reform
There is a view among whistleblowing experts that if the PID Act fails to protect Boyle, who appears to have complied with its onerous requirements, it will protect few others.
Should they not provide a shield to Boyle, calls for an overhaul of Australia’s whistleblowing laws will likely become overwhelming.
But even if he succeeds in his hearing, the case has already laid bare the regime’s current failings, according to AJ Brown, a Griffith University professor and board member of Transparency International Australia.
Boyle has spent the past four years with the threat – and later reality – of criminal charges and imprisonment hanging over his head. He has suffered financial turmoil, stress and professional damage as a result of his decision to blow the whistle.
Yet it’s only now, after so much damage has been done, that he has been able to seek protections under the whistleblowing regime. It’s considered a key weakness of the system. There is little proactive protection or practical advice available to whistleblowers in the early stages of their disclosures.
“The travesty in it is the delay and the cost to get to a point where they’re even arguing whether he is protected or not under the PID Act,” Brown told Guardian Australia. “I think it will be a very important case, as a test case, because unless there’s something wrong with the evidence I’ve seen, then he should have a very, very good defence.
“And if not, it’ll point to how the law needs to be reformed.”
Providing protection
Many, including Brown, believe the establishment of a whistleblower protection commissioner would go a long way in addressing the system’s current failings.
The commission would exist to advise and aid would-be whistleblowers, providing guidance and bringing strategic cases to protect them. The body would ensure that whistleblowing laws are working in practice. It would mirror a body in the Netherlands called Huis voor Klokkenluiders, or whistleblowing house, and follow attempts in 2020 and 2021 in the UK to establish an office of the whistleblower.
A whistleblower commission is a key part of the proposal for a national anti-corruption commission (NACC) put forward by the crossbench, including former MP Cathy McGowan, Centre Alliance’s Rebekha Sharkie, and later the Greens and independent MP Helen Haines.
Independent MP Andrew Wilkie, a former intelligence analyst at the Office of National Assessments who blew the whistle on the misrepresentation of evidence used to justify the Iraq war, is a strong supporter of the concept and says it must not be considered as an optional extra to any anti-corruption commission.
“It goes to the heart of the NACC’s ability to be effective,” he wrote in the Nine newspapers. “Having a protective mechanism for whistleblowers is essential for them to come forward with evidence of alleged misconduct so they have the confidence they’ll be protected and their concerns taken seriously. Anything less would be a betrayal to those who are compelled to speak up in the national interest.”
Recent experience has highlighted other areas of potential reform.
Balancing national security
The cases against Witness K and Bernard Collaery, who helped expose the 2004 Timor-Leste spying affair, prompted public discussion of how whistleblowing laws interact with matters of national security and intelligence.
Brown says the laws give very limited options for would-be whistleblowers to complain about illegality or misconduct in areas related to intelligence and national security.
The laws give absolutely no recourse for whistleblowers to make their concerns public.
“The problem with the definition of intelligence information is that it is so broad in the PID Act,” Brown says. “It’s any information that has ever been generated by, or given by, or basically come within a Covid-sniffing distance of an intelligence agency. That’s automatically intelligence information and therefore has to be treated differently and doesn’t attract the same protections.”
He says a proper harm and risk test was required, to balance genuine concerns about the disclosure of such information against the public interest in those disclosures being made.
As it stands, he says, people like Witness K who pleaded guilty to disclosing intelligence information were left with no defence.
“Witness K should have been entitled to argue a defence to say: ‘Look, I took it to [the inspector general of intelligence and security], and then I took it to a lawyer, and it was in the public interest’,” Brown says.
“But the way the intelligence information exception is worded, it’s just so broad, he doesn’t even get a day in court – even a day in a secret court – to argue he has a public interest defence.”
The Human Rights Law Centre wants the attorney general, Mark Dreyfus, to intervene to end the Boyle prosecution, much like he did with Collaery. The attorney general has given no indication he will heed that call.
Former senator Rex Patrick wrote to Dreyfus after Labor won office, calling for him to intervene.
Dreyfus responded that such interventions were reserved for “very unusual and exceptional circumstances”.
Labor has publicly committed to overhauling the PID Act, though the scope of those reforms are not yet clear. While in opposition, it also voted in support of the NACC bill put forward by the crossbench, which would have established a whistleblowing commissioner.
Pender says the fact that two whistleblowers remain on trial – Boyle, and David McBride, a military lawyer who leaked files to the ABC – shows the current regime is clearly failing.
“The Albanese government must prioritise stronger laws and the establishment of a whistleblower protection commissioner to ensure Australian whistleblowers are protected and empowered,” he says.
“Whistleblowers make Australia a better place.”
