Richard Boyle’s public interest disclosure (PID) defence hearing will take place at Adelaide District Court on Tuesday 26 July.
The former ATO officer will be arguing that his having blown the whistle on dodgy tax collection practices was protected under federal law.
Boyle followed the steps a public service whistleblower must take, under the Public Interest Disclosure Act 2013 (Cth) (the PID Act), when revealing corruption. This saw him initially make an internal disclosure, followed by another to the tax ombudsman and finally, he went to the press.
The case against Boyle is one of three controversial whistleblower prosecutions commenced under Liberal attorney general Christian Porter that Labor AG Mark Dreyfus inherited. But, unlike that of ACT barrister Bernard Collaery, the current chief lawmaker has refused to drop Boyle’s case.
In response to his raising corruption allegations, which several inquiries have since vindicated, the Commonwealth Department of Public Prosecutions first slapped Boyle with 66 charges carrying 161 years. However, further developments have since seen this dropped to 24 counts.
But it’s hard to see how Boyle will receive a fair defence hearing under the provisions of the PID Act, when those laws, which have failed him so far, have already been slated for reform by the new attorney general, who admits the laws that he drafted nine years ago, need strengthening.
Shooting the messenger
Following a June 2017 directive from ATO management ordering that standard garnishee notices – a mechanism that permits the tax office to require a bank to handover taxpayer money without notification – be applied across the board, Boyle made an internal complaint.
An officer at the ATO Adelaide offices, Boyle submitted an extensive 27 page public interest disclosure on 12 October that year, arguing that the sweeping directive was in breach of the Australian Public Service code of conduct, set out in section 13 of the Public Service Act 1999 (Cth).
The ATO promptly rejected the claims in his report a fortnight later. And as per the requirements of the PID Act, Boyle then took the complaint to a higher authority, the Inspector General of Taxation (IGT), making sure that he redacted the information necessitated by secrecy laws.
In January 2018, the ATO offered Boyle a settlement, on the proviso that he sign a gag order. But the former tax officer declined, taking his story to the media, which involved a joint Age/Herald/Four Corners investigation that resulted in the April 2018 program Mongrel Bunch of Bastards.
But, just days prior to the airing of the Four Corners episode, the AFP raided Boyle’s Edwardstown apartment, and he was subsequently charged with dozens of disclosure offences under the Taxation Administration Act 1953 (Cth), along with the misuse of a listening device in breach of SA laws.
“A superficial investigation”
Related to the Boyle case, a Senate inquiry into the Inspector General of Taxation released its final report in June 2020. It found that the ATO investigation into Boyle’s public interest disclosure had been lacking, and just days later, the CDPP dropped the charges against him down from 66 to 24.
Committee chair Senator Slade Brockman stated at the time, that “based on the evidence received from witnesses, and in particular from the Commonwealth Ombudsman, the committee is concerned that the standard of the ATO’s investigation could appear to the public to be superficial.”
On the release of the report, long-time Boyle supporter former Senator Rex Patrick told parliament that if it wasn’t for the superficial nature of the ATO’s handling of the PID report, then Boyle would not have had to go to the inspector general or the media with the corruption issue.
Patrick further pointed out that a March 2019 IGT report “found that indeed there were anomalies in the Adelaide tax office in relation to garnishee notices”. And he added that this revealed an issue with the internal inquiry, which, if performed properly, would have prevented going to the press.
Pending reforms too late
The three political prosecutions that carried over from the Morrison administration also involved the prosecution Collaery over conspiring to reveal the 2004 Australian bugging of East Timor, and former ADF lawyer David McBride over his exposing potential war crimes.
After reviewing the case, Dreyfus determined to drop the Collaery prosecution a fortnight ago. And the attorney general has the power, under section 71 of the Judiciary Act 1973 (Cth), to end both the Boyle and McBride prosecutions, which supporters underscore are not in the public interest.
In response to a letter from Patrick, Dreyfus said he won’t be ending Boyle’s case, as he insists the CDPP “takes decisions about the commencement of prosecutions independently of government”. And he added that section 71 is “reserved for very unusual and exceptional circumstances”.
But Dreyfus also mentioned in his reply that his department will now be reforming the PID Act, which he’s been calling for since 2019. The AG actually drafted the legislation during a short stint as the nation’s chief lawmaker in 2013, and he’s always said he was aware it needed updating.
This understanding led to a statutorily required review of the Act, with the resulting 2016 Moss report. Yet, on the inquiry handing down its findings, the Coalition proceeded to sit on them until it agreed to 30 of is 33 recommendations in December 2020, which it then neglected to act upon.
A crime to report a crime
In regard to the Boyle prosecution, then Senator Patrick told Sydney Criminal Lawyers in August 2019, that “there is no question that he exposed unethical conduct, in that he was exposing an egregious use of a power, which was granted to the Tax Commissioner”.
If the Adelaide court does not accept Boyle’s PID defence following Monday’s hearing, Boyle is set to stand trial in October.
And this means that the former public servant could be facing the rest of his life in prison based on a legislative process and a set of whistleblower protections that have been accepted as flawed and the current government plans on overhauling in acknowledgement of these failures.
“The prosecution of Richard Boyle is not in the public interest,” Patrick made clear three years back. “It sends a very strong message to whistleblowers that you are at risk of being prosecuted should you call out misconduct.”