Pearls and Irritations

Australian legal and political history is littered with examples of petty and vicious prosecutions, notably against those considered dangerous tittle tattles who give the game away and seek to shine some light on the unpalatable practices of those in power.

Such a person is Richard Boyle, a name to keep company with any number of those who have faced or continue to face the vicious arm of the silencing state. (The list is disgracefully long, but includes such prominent figures as Witness K, Bernard Collaery, David McBride.)

The Human Rights Law Centre, in highlighting the prosecutions of both Boyle and McBride, the latter being prosecuted for revealing alleged atrocities of Australian special forces in Afghanistan, was emphatic. “These prosecutions are unjust. They undermine Australian democracy by sending a chilling message to prospective whistleblowers about the cost of courage, the cost of speaking up. Whistleblowers should be protected, not punished – and certainly not prosecuted.”

Boyle, having worked as a debt collection officer for that most unempathetic of entities, the Australian Taxation Office, found its debt recovery practices, notably against small business owners, a bit too rich to stomach. He took special umbrage at the ATO’s practice of misappropriating funds from the bank accounts of taxpayers without notice, part of a culture of aggressive revenue gathering. He could also barely stomach the callousness of senior staff members who scoffed at taxpayer threats of suicide.

Stung into action, Boyle went through the necessary steps under the Public Interest Disclosure Act (PID Act) 2013 (Cth). First came the internal public interest disclosure statement running into 27 pages, alleging that the ATO’s use of garnishee notices requiring banks to hand over taxpayer monies without notification was in breach of the Australian Public Service Code of conduct. Boyle did not have to wait long for the office’s firm rejection a fortnight later.

Then came a fruitless complaint to the Inspector General of Taxation. In January 2018, the ATO offered Boyle a settlement, with the usual proviso that he approve a gag order. He refused. With the avenues exhausted, he made what he thought to be a protected public disclosure to the media, involving a joint Age/Herald/Four Corners effort that led to the April 2018 Four Corners production Mongrel Bunch of Bastards.

A few days prior to the episode’s airing, Boyle’s Edwardstown apartment was raided by the Australian Federal Police. He was duly prosecuted by the Commonwealth Department of Public Prosecutions for revealing protected information and is currently facing 24 charges based upon alleged breaches of the Taxation Administration Act 1953 (Cth) and South Australian laws covering the misuse of listening devices. (The initial number of charges lay at a lofty 66.)

These charges include the taping of conversations without consent and taking photos of confidential taxpayer information. Scandalously enough, this prosecution is still afoot notwithstanding subsequent reviews confirming that Boyle’s claims were largely valid. If found guilty, he faces the prospect of life imprisonment.

On March 27, Boyle’s attempt to use the PID Act’s whistleblowing regime failed in the South Australian District Court. His prosecution could therefore continue. The reasons by Judge Liesl Kudelka for rejecting Boyle’s public interest defence, which would have given him immunity from prosecution, have been suppressed. Not only has he been greeted by a judicial determination rejecting his attempt to use the PID Act, the public has also been left none the wiser as to the rationale for doing so.

Kieran Pender of the Human Rights Law Centre was baffled and distraught in responding to the decision. “The decision is a major blow for Australian democracy. Whistleblowers should be protected not prosecuted.” Former Senator Rex Patrick, a keen devotee of Boyle’s cause, argued that this would “have a huge chilling effect. No one in their right mind would blow the whistle under the current whistleblower protection regime.”

The PID Act is a clumsy, feeble document, much of it vague and open-ended in its wording. As Patrick colourfully describes it, “You basically need to be a king’s counsel to be able to navigate the legislation properly.”

There is also a conspicuous absence of any supporting machinery, including, most tellingly, an independent whistleblower protection authority. Tasmanian independent MP, Andrew Wilkie, has long advocated the creation of a whistleblower protection commissioner that could be coupled with the National Anti-Corruption Commission. “A dedicated statutory office would ensure that whistleblowing laws work in practice. It would provide guidance to those speaking up and litigate strategic cases when whistleblowers come under attack across the public and private sector.”

Wilkie is far from being alone on this. An August 1994 Senate Committee report recommended the creation of an independent national Public Interest Disclosures Agency, along with the introduction of a protective scheme inclusive of both the public and private sectors.

In 2017, the Parliamentary Joint Committee on Corporations and Financial Services revisited the idea. In its final report, the Committee recommended “that a one-stop shop Whistleblower Protection Authority be established to cover both the public and private sectors”. Such a body would be vested with a number of powers, including the investigation of criminal and non-criminal reprisals against whistleblowers, making recommendations to the Australian Federal Police or any relevant prosecutorial bodies, and take various non-criminal matters to relevant tribunals or courts on behalf of the whistleblower.

The 2016 Moss Review examining the patchy record of the PID Act made 33 recommendations in terms of reforming the cumbersome statute, 21 of which were accepted in the Public Interest Disclosure Amendment (Review) Bill 2022. To the disappointment of independent MPs, these did not include the creation of an independent whistleblower protection commissioner. The promised second stage of reforms may include such a body, but this remains sometime in the future.

As things stand, the sensibly just outcome to this case is for the Attorney-General, Mark Dreyfus, to intervene and stop this needless prosecution. To date, his office is refusing to comment on the matter, preferring it to go to trial in October.

Yet another warning has been fired to frighten the cause of whistleblowers in Australia. To those exposing the sordid details of misconduct by agencies: you will not be aided, nor welcomed.

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