Let’s Get Boyle: ATO Whistleblower’s Appeal Fails, Just Like Justice Under Dreyfus

Richard Boyle is the last man standing from the hitlist of three whistleblowers that the then Coalition government targeted for prosecution in 2018.

Three former public servants, Witness K, David McBride and Richard Boyle, who’d all spoken out about government corruption, were charged.

The prosecutions were launched under then attorney general Christian Porter. And the Coalition wanted to fry K and his lawyer Bernard Collaery over exposing our government having bugged the Timor-Leste cabinet, while McBride revealed Australian war crimes and Boyle illegal tax practices.

At that time, legislation was in place that was designed to protect whistleblowers in speaking out about corruption, because it is in the interest of all to prevent wrongdoing. And these protections, contained in the Public Interest Disclosure Act 2013 (Cth), were drafted by current AG Mark Dreyfus.

The nation’s chief lawmaker drafted the PID Act during an earlier stint as AG under Gillard-Rudd. And as an Alliance Against the Political Prosecutions was rising in 2021, Dreyfus admitted his framework was “not a perfect scheme” and committed to making the “necessary improvements” if re-elected.

But as Boyle again learnt on Thursday, as the SA Court of Appeal rejected his challenge of the 2023 determination of the SA District Court that found him not protected by the PID Act, Dreyfus’ pledge to fix his dodgy laws were no guarantee that he’d ensure Porter’s victims would receive a fair trial.

A bipartisan firing squad

Key critic of the PID Act, Griffith University Professor A J Brown told Sydney Criminal Lawyers in mid-2021, that while the authorities may press for the charging of a whistleblower, the PID Act from that point on, almost guaranteed prosecution and conviction.

Of the three public servants on the hitlist, it was Boyle who most closely followed the process laid out by Dreyfus in the PID Act to ensure that he was protected when making his public interest disclosure. And the ex-ATO officer did this to a T, which, accordingly, should have protected him.

 Witness K, the ex-ASIS officer who exposed the Coalition surveilling the Timor-Leste government to deceive it, was not protected because the PID Act did not cover intelligence agency whistleblowing. So, he eventually pleaded guilty in 2021, and received a three-month-long suspended sentence.

McBride did follow the PID Act process, as he made an internal disclosure, then, as that didn’t lead to any significant action, he approached the related oversight officer, and as that failed to produce any results, it was the open to him to go to the press.

The ex-ADF legal officer, however, did mistakenly approach the wrong oversight officer, yet, regardless, he was completely blocked from putting his PID defence to the court anyway.

So, despite Dreyfus’ promise of reform, when Boyle put his PID defence to the court in October 2022, no law changes had been made. So, the ex-ATO officer had to argue his defence under the dodgy law, which didn’t protect him in relation to how he gathered his information to make his case.

The art of discouraging whistleblowing

The statutorily required review of the PID Act came three years after enactment. Known as the Moss review, it delivered its final report in 2016, which made 33 recommendations. And the Coalition government’s response to it wasn’t forthcoming until 2020, under then PM Scott Morrison.

And Dreyfus remarked, while in opposition, that he’d been aware his PID laws were far from perfect on enactment, and to have sat by and watched as the Coalition failed to address the report recommendations to improve his Act had been difficult.

So, when Dreyfus returned to the role of chief lawmaker in 2022, he announced his first tranche of PID Act reforms on 30 November, which was the month after Boyle had put his public interest defence to the courts under the old laws and McBride had been blocked from even attempting to.

The Public Interest Disclosure Amendment (Review) Bill 2022 passed on 15 June last year. It implemented 21 of the 33 Moss report recommendations made in 2016. And these reforms would not likely have changed the respective outcomes of K’s, McBride’s and Boyle’s cases.

And another round of reforms is now underway. Dreyfus released a consultation paper last November. And the rest of the Moss recommendations are being considered, as well as stakeholders suggestions, including the key call for the establishment of a Whistleblower Protection Authority.

And this process, which is still underway, may very likely have affected the hitlist case outcomes, in terms of what’s currently on the table for consideration. Although what Dreyfus’ second attempt at legislating to save whistleblowers looks like in the end is yet to be revealed.

But it certainly won’t save McBride who was last month sentenced to 5 years and 8 months prison time, with non-parole set at 2 years and 3 months.

The other key act that Dreyfus carried out on retaking office is he discontinued the prosecution of Witness K’s barrister Bernard Collaery, who was the only individual caught up in the political prosecutions that wasn’t a public service officer who’d gone and spoken out of place.

Dreyfus did this by exercising the power he has under section 71 of the Judiciary Act 1903 (Cth), which allows the attorney general to end a prosecution, when the office bearer sees fit.

Indeed, the AG can end Boyle’s case right now using this power. And he could have used it to prevent David McBride from being sent to gaol.

But Dreyfus refused to do this, even though he was well aware that his laws would likely fail these truthful citizens who spoke out against corruption in the public interest.

Taxing to say the least

As for Boyle, he’s set to stand trial in September. Why? Well, he was aware that the ATO had its employees, like him, dipping into the bank accounts of small businesses to withdraw money they owed, in a manner that was unlawful, in order to lift periodic KPIs.

And in building his case, Boyle used devices to collect information. And while this seems like a fairly reasonable approach to take to such a task, Dreyfus didn’t foresee the need to put protections in place to save public interest whistleblowers from criminal prosecution in this regard.

Yet, since Boyle blew the whistle in 2018, several inquiries have vindicated his actions, finding that the tax office actually had been using the garnishee process in an unlawful manner, and following the exposure the Adelaide man brought to the practice, it’s since been ended.

Initially, the authorities slapped Boyle with 66 criminal charges for doing what was obviously in the public interest.

But following a Senate inquiry into the handling of Boyle’s complaint by the Inspector General of Taxation, which found that the investigation had been wanting, the Commonwealth Director of Public Prosecutions dropped the charges down to 24 counts.

So, Boyle is now standing trial on two dozen charges relating to releasing protected material, which carry a combined maximum of 46 years, all due to the fact that the government wants to deter any other honest government employees, like him, from spilling the beans on corruption.