Australia’s whistleblower laws do not offer any protection to public servants like Richard Boyle for acts allegedly committed while gathering evidence prior to speaking out, a court has found.
The South Australian district court on Thursday partially lifted suppressions over a key judgment that ruled that the nation’s whistleblower protections could not be used to shield Boyle, a former tax office employee who spoke out about the agency’s unethical and aggressive pursuit of debts.
The landmark decision, handed down on Monday, was the first real test of the public interest disclosure act (PID Act) and leaves Boyle staring down the barrel of a criminal trial for 24 offences, including the alleged use of his mobile phone to take photographs of taxpayer information and covertly record conversations with colleagues.
Boyle has pleaded not guilty to all charges.
The court’s reasons for denying Boyle immunity were temporarily suppressed on Monday. Boyle’s criminal trial is set down for October.
Guardian Australia – represented by barrister Michelle Hamlyn – intervened in the case this week, intending to argue against the complete suppression of the judgement given the public interest in its importance in revealing potential weaknesses in Australia’s whistleblower protection regime.
The court heard on Thursday that Boyle’s lawyers were seeking portions of the judgment be redacted, a position supported by the CDPP. The court made orders suppressing those parts of the judgment, though the Guardian, represented by Hamlyn, successfully argued that the remaining redactions should be lifted when the case is concluded.
The unredacted portions of district court judge Liesl Kudelka’s ruling show that Boyle argued Australia’s whistleblowing laws should protect him for any alleged acts conducted while he collected evidence and investigated the tax office’s pursuit of debts, prior to blowing the whistle internally and later externally to the taxation watchdog, the ABC and to Fairfax.
His lawyers argued that if whistleblowers were not protected while collecting evidence and investigating potential wrongdoing, it would both discourage them from speaking out and compromise the ability for authorities to properly investigate their disclosures.
Such an outcome, Boyle’s legal team argued, would contradict the objectives of the PID Act, which aims to encourage whistleblowers to come forward and ensure their concerns were properly dealt with.
The court, however, said the law was “silent” on whether whistleblowers should be protected for allegedly criminal acts done while collecting evidence or investigating prior to a disclosure.
“The PID Act does not expressly prohibit or endorse the recording of information by a public official to help formulate a public interest disclosure,” the court found. “The PID Act is silent on this aspect.”
“The PID Act does not expressly prohibit or endorse the collection of evidence by a public official to support the information contained in their public interest disclosure.”
Kudelka ruled the role of the whistleblower was more confined under the law. The PID Act, she ruled, provided no basis for whistleblowers to be protected for investigating or collecting evidence.
“It is understandable that a public official may feel that they may not be believed if they do not have ‘evidence’ to ‘back up’ what they are disclosing,” she said. “Mr Boyle expressed that sentiment on multiple occasions during his evidence. Over time he formed the belief that the ATO would not investigate his allegations.”
Kudelka said Boyle, given the response of his superiors to his concerns, may have even been “justified” in his belief.
“However, it does not follow that s 10(1)(a) should be construed to protect public officials in the performance of an investigative role which the PID Act does not contemplate they undertake,” she found.
She said that Boyle’s argument would effectively interpret the PID Act as sanctioning that would-be whistleblowers are allowed to engage in “some form of ‘vigilante justice’”.
“One difficulty with imputing such an intention is that such unlawful conduct may range from minor to egregious.”
Kudelka said such an interpretation, even if it was open, could run counter to the objectives of the PID Act, which is also designed to “promote the integrity and accountability of the commonwealth public sector”.
“A construction of s 10(1)(a) which sanctions public officials engaging in unregulated criminal conduct to gather information/evidence to prepare and support a disclosure does not promote the integrity and accountability of the commonwealth public sector,” she ruled.
Boyle’s legal team tried to argue that only alleged criminal acts that “reasonably forms” the process of making a disclosure should be protected, weighing up the seriousness of the allegation with the relative gravity of conduct.
“The silence of the legislature regarding the limits of the criminal conduct and the test proposed by the applicant gives public officials no certainty and little guidance,” Kudelka said.
Kieran Pender, a senior lawyer at the Human Rights Law Centre, said the judgment was “catastrophic” for whistleblowers in Australia and blew a “major hole” in the protections available.
“The provision at issue in this case is mirrored in every Australian whistleblowing law, which collectively protect 95% of the Australian workforce, across the private sector and federal, state and territory public sectors,” he said. “This will make it harder for Australians to speak up about human rights violations, government wrongdoing and corporate misdeeds.
“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.”
