The Public Interest Disclosure Act 2013 (Cth) (the Act) aims to protect Australian public service whistleblowers in making public interest disclosures (PIDs) about wrongdoing or corruption that they're privy to in the workplace, and it dictates the path such a discloser must take.
So, making a public interest disclosure is a legal act and in fact, the drafting and enactment of the PID Act to protect disclosing is an act that shows the federal government facilitating the exposure of corruption in the public service, as anyone would expect in an open government liberal democracy.
And to this effect, section 10(1)(a) of the Act provides that if "an individual makes a public interest disclosure, the individual is not subject to any civil, criminal or administrative liability (including disciplinary action) for making the public interest disclosure".
The South Australian District Court, however, found in 2022 that Australian Taxation Office whistleblower Richard Boyle was protected in making his PID, which had reached the stage in the process of going to the media, yet there was still an issue with the "alleged unlawful anterior acts committed".
This means that the court found that section 10 has protected him in making a public interest disclosure, which is a legal act, yet some of his preparatory acts in gathering evidence were illegal and the immunity doesn't extend to them.
But if that's the case, why is criminal liability even cited in section 10?
Completely above board
Public sector agencies are required to have PID procedure set out on their website to assist staff in making such disclosures. And the first step to take is to make an internal complaint to an authorised officer, the principal officer or one of the public officials of the agency where the discloser works.
In its June findings on Boyle's appeal against the District Court finding that evidence gathering acts aren't covered by the criminal immunity provided under section 10, the SA Supreme Court stated "it was common ground" that the lodging of Boyle's 12 October 2017 PID did comply with the Act.
It was also found that Boyle's "PID was not dealt with appropriately" by the authorised officer, who emailed him on 27 October, stating "the disclosure did not concern serious disclosable conduct" and, therefore, the inquiry was discontinued. And the court stressed "that this decision was incorrect".
So, in accordance with the process set out under section 7A of the Act, as Boyle was not satisfied that the disclosure had been "handled reasonably" by his ATO senior, he took his PID matter to the correct oversight body, which is the Inspector-General of Taxation and Taxation Ombudsman (IGTO).
But IGTO assistance was not forthcoming, so, as per section 26 of the Act, Boyle blew the whistle to the press, specifically the ABC, which is known as making an external disclosure. And his evidence formed part the 2018 Four Corners program on ATO malpractice, titled Mongrel Bunch of Bastards.
Boyle also attempted to make a legal practitioner disclosure, which is permitted under section 26 as well, and can be made when the internal public interest disclosure failed to be handled correctly.
A legal practitioner disclosure can be made to any Australian lawyer, and its purpose is to obtain "legal advice, or professional assistance from the recipient in relation" to a PID.
So, all of these acts of disclosure that Boyle made were found to be completely legal.
Why no criminal liability immunity?
As explained above, public interest disclosures are completely legal and are apparently encouraged by the federal government. And as section 10 of the Act provides, in making a PID, an "individual is not subject to any civil, criminal or administrative liability".
Protection from civil liability infers that the agency or an individual can't take action against a discloser in court to seek damages in relation to the disclosure, while immunity from administrative liability prevents the agency from sanctioning the employee, such as terminating or demoting them.
But the question remains why is immunity from criminal liability provided to whistleblowers if not to protect them in regard to any "alleged unlawful anterior acts committed" in preparing to prove their PID case, as making a disclosure in itself is a legal act?
And in having taken the matter to his seniors in the taxation office and in turn, on to the IGTO, Boyle sought to then take the next steps set out in the Act, which was to make a legal practitioner disclosure and an external disclosure to the press, so how was he to do this without any proof?
Ambiguously drafted
Boyle blew the whistle about the ATO breaching its protocol in applying a garnishee practice, or dipping into clients' bank accounts to settle outstanding debts at an earlier stage in the debt collecting process than permitted. And he maintained that it had an oppressive impact on the public.
The IGTO carried out an inquiry into ATO garnishee practices, which refuted that the breach of policy was carried out in order to improve ATO end of financial year figures, as Boyle suggested, but the 2019 report did find the practice had been applied inappropriately and it was brought to an end.
Meanwhile, that same year, as the taxation office admitted that Boyle had blown the whistle in regard to an oppressive breach of protocol, Boyle was slapped with 66 charges, which were later dropped down to the 24 criminal offences, which he's now set to stand trial for on 2 September.
Boyle is facing a maximum of around 50 years inside, with seven counts of using a mobile phone to take photos of taxpayer information, a further seven for covertly recording conversations with his former ATO colleagues and nine for uploading photos of taxpayer information to an email account.
Indeed, in making a PID it would seem quite rational to collect preparatory materials to build one's case and one would think they'd be protected in doing so. But the original PID defence put to the SA District Court and the recent Supreme Court appeal decision have found that he isn't protected.
In terms of the nine charges referring to evidence uploaded onto an email account, this was part of Boyle's attempt to make a legal professional disclosure.
So, Richard provided his lawyer with a secure copy of confidential tax information, via an encrypted Proton Mail account for safe keeping.
The court, however, found that as Boyle's lawyer never accessed the documents, in fact no disclosure had occurred and, therefore, the former tax office employee couldn't be granted immunity for disclosing documents under the Act.
And while this all seems rather unjust and quite confusing, one thing that is brutally obvious is that the immunity from criminal liability within section 10 has been rather ambiguously legislated and it appears to be up to the whim of the judicial officer of the day as to which way the gavel falls.
Very unusual and exceptional
Attorney general Mark Dreyfus drafted the PID Act during an earlier stint as the nation's chief lawmaker back in 2013, and whilst in opposition, as the Coalition launched a number of whistleblower prosecutions in 2018, he'd then promised to reform the laws if voted back into office.
Dreyfus passed afirst round of amendment in mid-2023. And in a consultation paper that sets out a more robust overhaul of the Act released last November, it is specifically set out that a proposal is being considered to extend immunities to cover "preparatory acts" in making a disclosure.
So, while Boyle's case is not specifically raised in the Public Sector Whistleblowing Reform Stage 2 consultation paper, the fact that the issue of extending immunity to preparatory acts is a key matter on the list of potential amendments is recognition of this fault at the highest level.
Yet, under section 71 of the Judiciary Act 1903 (Cth), the attorney general can end a prosecution, when the office bearer sees fit. And Dreyfus has stated that he hasn't applied this to Boyle's case as it is a power he can only exercise under "very unusual and exceptional circumstances".
Although one might think that the AG would step in and exercise this power, whilst he's contemplating amending his own decade old law to resolve an identified issue, which is about to potentially see a citizen, who made a disclosure in the public interest, sent away for a very long time.
So surely, the case of ATO whistleblower Richard Boyle, about to be tried under failed laws likely to be amended so they don't act in this way again, does constitute extremely "unusual and exceptional circumstances", especially as this very costly mistake to some, is a result of his own lawmaking.
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