The prosecution of former Australian Tax Office (ATO) official Richard Boyle has been portrayed as a shocking miscarriage of justice and evidence that Australia’s whistleblower laws are badly flawed.
“The Boyle prosecution should never have been brought — it is not in the public interest. But now it has significantly undermined the scope of whistleblower protections in Australia, too,” Kieran Pender of the Human Rights Law Centre (HRLC) wrote last week for Crikey.
There’s no doubt that Boyle is a genuine whistleblower under the Public Interest Disclosure Act (the PID Act). Even the prosecution accepts that Boyle made a valid disclosure under the PID Act. He had taken exception to the casual and indiscriminate use of garnishee notices in the Adelaide office of the ATO, and the indifference to the horrific impact on taxpayers that it sometimes caused. He disclosed it to a superior officer, who failed to properly investigate it. Boyle then went to the media, and the resulting coverage on Four Corners led to an investigation by the inspector-general of taxation, which upheld at least part of Boyle’s concerns.
As Pender wrote in Crikey, “[Boyle’s] whistleblowing has been vindicated. The tax ombudsman accepted there were problems at the Adelaide branch. The small business ombudsman found there had been ‘excessive’ use of garnishee notices. And a Senate inquiry found that the tax office’s internal review of Boyle’s whistleblowing had been ‘superficial’.”
So why is Boyle being prosecuted? As Pender says, it’s for what he did leading up to his disclosure. He took photos of tax records and uploaded them to a Proton Mail account, and recorded conversations with colleagues. He did not use that material in his disclosure about the cowboy culture of the tax office. Prosecutors say that conduct wasn’t covered by the PID Act. And last week, the Supreme Court of South Australia’s Court of Appeal agreed, dismissing Boyle’s appeal that the conduct was protected by the PID Act.
Boyle’s lawyers, backed by a submission from Pender and his colleagues at the HRLC, argued that the wording of the PID Act around “making” a disclosure suggested Parliament intended that whistleblowers would have to “make” the material they would disclose, rather than simply tell someone of their concerns. The court rejected this reasoning — “make a disclosure” means what people take it to mean, to disclose something. The judges also suggested that the act did not provide any clarity around whether whistleblowers could legally record information to which they had lawful access.
This is a very strict reading of the PID Act around what whistleblowers can do in preparing their disclosures. And as Pender told Crikey readers, the government’s own discussion paper on improving the PID Act covers this exact issue, asking: “to what extent, if at all, preparatory acts should be covered by immunities, any risks associated with potential PID protections for preparatory acts, and what safeguards may be appropriate in relation to preparatory conduct to address those risks.”
But as that paper says, “preparatory acts” shouldn’t turn into whistleblowers “conducting their own investigation into alleged wrongdoing — as they may prejudice any future investigation under the PID Act or another framework.” Boyle very much conducted his own investigation by photographing tax records and uploading copies of them. The confidentiality of tax records is immensely important both for personal privacy and the integrity of the tax system, but that seems to have meant little to Boyle. It’s one thing, like David McBride, to reveal war crimes investigations — but quite another to risk the security of individuals’ most important personal information.
Boyle also secretly recorded conversations with colleagues. As the judges said, Boyle “could have asked for the meeting to have been recorded or, alternatively, have relied on the minutes of the meeting. The primary judge also found that other aspects of the material underpinning the appellant’s PID could have been obtained by lawful means.”
Boyle didn’t simply come by copies of tax records as a normal part of his job. He didn’t record conversations with colleagues as a part of his job. He broke the law doing those things.
The HRLC argued in its submission, in the words of Justice Lovell, “that external disclosures are most likely to be made to journalists or politicians, and that such recipients are unlikely to be able or willing to take any action without detail and evidence to support the information disclosed. In summary, the appellant and HRLC argue that the court should lean towards a construction which would encourage disclosures by permitting whistleblowers to record and collect information and evidence, and hence give them greater confidence that their disclosure will be protected and effective.”
Lovell responded that the threshold for making a disclosure is pretty low — whistleblowers don’t have to have chapter and verse and a watertight case to reveal conduct they think is problematic — but “to the extent that the whistleblower has lawful access to voluminous, detailed or complex information in the course of their employment, they will be free to draw on that information in preparing their disclosure.”
And he dismissed the argument that whistleblowers would need a compelling package — put together illegally — to give to journalists or politicians:
Whilst the legislature was prepared to contemplate the appropriateness of making external disclosures in certain circumstances (including to journalists and politicians), I am not persuaded that the legislature should be taken to have intended to ensure that these disclosures would be effective by not only permitting that the disclosures themselves be made with immunity from liability, but also by enabling the whistleblower to engage in criminal activity so as to make sure they have enough supporting information and evidence to attract the interest of a journalist or politician.
As interpreted in South Australia, the PID Act allows whistleblowers to look at and draw on information they lawfully have access to. Whether they can compile it isn’t clear. But stealing information to make a disclosure more interesting to a journalist definitely isn’t permitted.
The current reform process should be the vehicle for Attorney-General Mark Dreyfus (who wrote the PID Act) to fix the clarity around what “preparatory acts” attract immunity, and especially how to compile and store information relevant to a disclosure. The sentiment behind the submission from Pender and his colleagues — that there must be some wriggle room if the PID Act is to practically allow whistleblowers to make disclosures that will actually lead to investigations and thus benefit the public — is fair enough.
But stealing tax records and recording conversations is surely a bridge too far. Richard Boyle is a whistleblower, but he should still be prosecuted. Let’s just hope that, if found guilty, he doesn’t cop the monstrous sentence David McBride did.
Do you agree Richard Boyle should be prosecuted? Let us know your thoughts by writing to letters@crikey.com.au. Please include your full name to be considered for publication. We reserve the right to edit for length and clarity.
