Richard Boyle claims a judge was wrong to deny him whistleblower protections, and says Australia’s laws should have shielded him from alleged acts made in preparation to expose the conduct of the Australian Taxation Office, court documents show.
Boyle has lodged an appeal against a key decision in the South Australian district court, denying him the protections of the nation’s Public Interest Disclosure Act, which left him facing criminal trial on 24 charges – including the alleged use of his mobile phone to take photographs of taxpayer information and covertly record conversations with colleagues.
Boyle’s case was the first proper test of the whistleblower protections and was widely seen as crucial in understanding the flaws and weaknesses in the current regime, which Labor has proposed reforming.
The court ruled that Boyle could not be protected for allegedly unlawful acts while gathering evidence to prepare to blow the whistle about the ATO’s unethical and aggressive pursuit of debts. Boyle, an ATO worker based in Adelaide, made disclosures internally at first, then to the inspector general of taxation, and, ultimately, to Fairfax Media and ABC Four Corners.
Boyle’s notice of appeal, released to Guardian Australia by the SA courts, shows he will argue that the judge erred in finding that the PID act “only provided a person with immunity for the act of disclosing a Public Interest Disclosure statement and does not extend to the acts [including criminal acts] reasonably necessary to formulate that PID statement”.
The appeal documents argue that the judge applied the wrong standard of proof and also took an “unreasonably narrow” interpretation of the act.
Boyle says the judge falsely found that the conduct he is charged with was “not reasonably part of the process of making his public interest disclosure”.
“Her Honour erred by taking into account irrelevant considerations and in doing so relied on alternative lawful steps she considered Mr Boyle should have taken in order to formulate his [public interest disclosure],” the court documents say. “Her Honour thereby applied the wrong test and erroneously imported a subjective threshold test which failed to have regard to any criminal acts contemplated by [section 10 of the PID act].”
During the hearing of Boyle’s initial whistleblower case, his lawyers argued that the PID act was designed to encourage whistleblowers to come forward and ensure their disclosures are properly investigated. If the laws failed to cover whistleblowers for any activity done in preparation for blowing the whistle, Boyle’s lawyers argued, people would be deterred from coming forward.
The court disagreed and found that the laws were “silent” on whether whistleblowers ought to be protected for anything they did while investigating a matter or collecting evidence.
“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.”
Boyle’s appeal is before the supreme court of South Australia. It is unclear when the appeal will be heard and resolved, though it is likely to delay his criminal trial in the district court.
His criminal trial had been set down for October.
