If You Huff and Puff Will It Blow the House Down? Whistleblowing Updates

Oct 3, 2023

In October 2017, Richard Boyle blew the whistle on the Australian Taxation Office’s (ATO) aggressive debt recovery tactics against small businesses wherein staff in the ATO’s Adelaide office were instructed to issue standard garnishees on every case to assist the agency in meeting its revenue goals.

Mr Boyle was employed in the ATO’s debt recovery division in Adelaide and chose to speak out when he saw that the ATO’s aggressive tactics were destroying lives and causing unwarranted distress. He had concerns that people were at the risk of suicide from these aggressive tactics, and at his 2022 hearing, even spoke of a case where a woman fleeing domestic violence was still mercilessly being pursued by the ATO even though she hoped to pay her debt to the ATO after selling her home.

Mr Boyle initially raised the matter internally with the ATO, but his disclosure was rejected. Mr Boyle then made a further disclosure to the Inspector-General for Taxation, but no action was taken. As a last resort to protect the public, he revealed the ATO’s actions in a joint media investigation between The Sydney Morning Herald, The Age and the ABC’s Four Corners.

Mr Boyle was subsequently charged in January 2019 with 66 criminal offences. These include the disclosure of protected information, the recording of private phone calls and the taking of photographs of taxpayer details; all in attempts to gather information regarding the unethical and aggressive debt-recovery practices within the ATO.

Nonetheless, because Mr Boyle spoke up, the matter garnered public attention and calls for transparency and accountability, forcing the relevant authorities to take action. In March 2019, the Inspector-General released a report finding that ‘problems did arise in certain localised situations for a limited period, particularly so at Adelaide’s local ATO site’. The following month, the Australian Small Business and Family Enterprise Ombudsman published findings in support of Mr Boyle’s disclosure; that the ATO’s use of garnishee notices was in fact ‘excessive’. Further, a Senate inquiry into the matter found that the ATO’s investigation into Mr Boyle’s initial disclosure was ‘superficial’. With the release of these reports, the Commonwealth Director of Public Prosecutions (CDPP) dropped 42 charges, leaving Mr Boyle with 24 charges to defend.

Section 10 of the Public Interest Disclosure Act 2013 (Cth) (‘PID Act’) sets out the ‘Protection of disclosers’. The section states that an individual who makes a public interest disclosure ‘is not subject to any civil, criminal or administrative liability (including disciplinary actions)’ for making such disclosure. Nonetheless, Judge Liesl Kudelka of the South Australian District Court dismissed Mr Boyle’s application seeking immunity under the Act on 23 charges. Her Honour’s 62-page judgment was subject to an interim suppression order at the request of Commonwealth prosecutors. The unredacted sections of the judgment reveal that Her Honour determined that the PID Act was more restricted than Mr Boyle’s lawyers argued, and the provisions did not allow for whistleblowers to conduct their own investigation, gather evidence in secret or in a manner that was discreditable. The dismissal of the immunity application means that Mr Boyle will have to face a trial by jury in October this year, with the possibility of imprisonment.

Mr Boyle blew the whistle because the actions of the ATO were serious and severe, and it was in the public interest to expose the ATO’s aggressive debt collection tactics that had dire consequences of people’s lives. The PID Act was designed for the protection of public officials who make public interest disclosures in the Commonwealth public sector. Mr Boyle blew the whistle under the impression that the PID Act would protect him as section 6 of the Act clearly states that the purpose of the Act is ‘to ensure that public officials who make public interest disclosures are supported and protected from adverse consequences relating to the disclosures’.

Nevertheless, despite the authoritative reports supporting Mr Boyle’s whistleblowing, and the ATO making changes to its practices, Mr Boyle’s application for immunity under the PID Act was still rejected by the South Australian District Court. This is certainly a perplexing and distressing outcome as it conveys that despite an individual being genuine in their efforts to act in the public interest, and acknowledgement by the relevant authorities that changes do have to be made to practices, the individual who blew the whistle is still crucified for acting in the interest of the public and doing what legislation encouraged them to do. This then begs the question: is it really safe to blow the whistle?

It appears that those who blow the whistle are often punished for doing so, almost as if to make an example out of them and discourage others from doing the same. Mr David McBride, former lawyer in the Australian Army is another individual who is currently facing trial for whistleblowing. Mr McBride was deeply disturbed by the wrongdoing of Australian forces while serving in Afghanistan and disclosed classified documentation exposing the Australian special forces of committing war crimes in Afghanistan. The resulting Inspector-General of the Australian Defence Force Afghanistan Inquiry Report found credible evidence of the said war crimes, including 39 murders, executions and allegations of torture. Nonetheless, Mr McBride is still being punished for whistleblowing, with his trial due to take place late this year.

The attorney-general has the power to order the CDPP to discontinue a case, as it did with the case against whistleblower lawyer Bernard Collaery. Mr Collaery was charged when he helped reveal the conduct of Australian spies in Timor-Leste who bugged the nation’s cabinet to give Australia the upper hand in oil and gas negotiations in 2004.

While Mr Collaery was lucky to receive the support of the attorney-general, the same cannot be said for Mr Boyle and Mr McBride. Mrs Louise Beaston, wife of Mr Boyle, had written to Prime Minister Anthony Albanese and attorney-general Mark Dreyfus, pleading that the government uses its powers to have the case against Mr Boyle dropped. Mrs Beaston stated that their lives had been shattered since federal police and tax officers raided their home in 2018, and then again 2019 – ‘All for telling the truth’ she wrote in her letter.

The attorney-general is still silent on his willingness to assist Mr Boyle and Mr McBride, thus revealing the terrifying reality for whistleblowers in this country.

If you or someone you know is contemplating blowing the whistle on misconduct in the public sector, speak to one of our experienced solicitors here at Green & Associates Solicitors. We will work with you to ensure the right whistleblowing steps are taken to enable public disclosure, whilst making sure you are protected under legislation at all times.

Green & Associates

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