Boyle to Stand Trial for Preparatory Acts, as Dreyfus Considers Providing Immunity Afterwards

ATO whistleblower Richard Boyle is set to stand trial over 24 criminal offences on 2 September 2024, which cover preparatory acts that he undertook to gather information to prove that the tax office was employing a garnishee practice in a wrongful manner in his public interest disclosure.

A public interest disclosure (PID) is the revealing of serious wrongdoing in the public sector that’s harmful to the public.

In Boyle’s case the tax office was dipping into small business accounts, without notice, to buoy up agency end-of-financial-year figures, prior to the stage at which this garnishee act can rightfully be applied. And he further asserted maladministration in the debt collection area of the ATO as well.

After being charged, Boyle argued his PID defence, as per the Public Interest Disclosure Act 2013 (Cth), which contains a path to take in making a PID, and both the SA District and Supreme Courts found that the way in which Richard blew the whistle attracted immunity from criminal prosecution.

So, even though Boyle’s PID was in the public interest, and the ATO stopped the practice due to his claim, while  an Inspector-General of Taxation and Taxation Ombudsman (IGTO) inquiry found that it had been applied inappropriately, they’re still going to fry Boyle in court over his preparatory acts.

Yet, attorney general Mark Dreyfus is right now overhauling the PID Act. And in a consultation paper released last November, one key proposal up for debate is whether to extend “immunities to cover preparatory acts”, even though it might be assumed they’d have been covered on first draft.

So, Dreyfus is considering amending the PID Act, so that a person in Boyle’s situation would be immune to criminal prosecution for preparatory acts. However, if this does come to pass, it will be long after the ex-ATO officer’s criminal trial has taken place.

Clayton’s criminal immunity

Dreyfus, our nation’s chief lawmaker, knows the PID Act back the front, as he’s the chap who drafted the laws during an earlier stint as AG back in 2013. And he expressed his concerns in 2021 about the flaws, that hadn’t been cleared up by the Coalition after the 2016 Moss review of the PID Act.

The PID Act allows a person who has blown the whistle to put a PID defence to the court, which, if it is found that the exposure of internal agency information was in the interests of the public, it provides criminal, civil and administrative immunity to the discloser, under section 10 of the PID Act.

One could be excused for assuming that this criminal immunity extends to preparatory acts, as evidence gathering is part of proving a claim, and, as such information is agency-related it’s likely not available in the public realm. And as making a PID is a legal act, it does not require criminal immunity.

But the SA Supreme Court confirmed last month that criminal immunity doesn’t extend to preparatory acts, in line with the initial District Court finding of March 2023. And as evidenced in the paper released last November, the Attorney General’s Department has identified this as a key issue.

And one would be hard pressed to find someone who’d agree that an individual who didn’t break the law in making a PID to the point of going to the press, can, and still will, be prosecuted for the steps that he took in doing so, rather than absolved from all these crimes.

The only logical conclusion to come to in regard to the state pursuing the prosecution of Richard Boyle is revenge for the embarrassment he caused and to deter other public service employees from blowing the whistle too.

Indeed, Boyle’s original charge sheet slapped him with 66 criminal offences before it was dropped down to 24 counts.

Identifying the omission

The Public Sector Whistleblowing Reforms Stage 2 consultation paper was released in November 2023. It contains proposals for the major overhaul of the PID Act, which Dreyfus promised to make whilst in opposition. And this was after initial 2022 reforms were passed to facilitate the NACC.

Early on in the 33-page document, the AG’s office lists issues it’s now seeking views in regard to, which includes “protections and remedies available under the PID Act, including requirements to access protections and extending immunities to cover preparatory acts”.

While on page 15, the need for clarification around “the scope of ‘preparatory acts’ taken by a public sector whistleblower that are covered by immunity under the PID Act” is raised. And it explains these are acts taken “in the lead up to, or in the course of, making a disclosure”.

“Preparatory conduct may involve accessing or securing classified information that the whistleblower believes is relevant to support the disclosure,” the document reads, adding that “a whistleblower is not required to prove an allegation when making a disclosure”.

“Preparatory acts may amount to a criminal offence under Commonwealth legislation and there may be circumstances where it is not appropriate for the immunities under the PID Act to apply,” the AG’s office goes on to maintain.

A 2013 flashback

Then after setting out the obvious reasons why preparatory acts are needed in making disclosures, Dreyfus hits the reader with a side punch, as the report then states that it’s “therefore, important to consider to what extent, if at all, preparatory acts should be covered by immunities”.

So, let’s take Boyle’s example, after his internal disclosure was made and, as the Supreme Court found hadn’t been “dealt with appropriately”, he took his story to the ABC, which has been found lawful, but how was he meant to ensure that the journalists took him seriously without proof?

The AG’s office further notes in regard to this point that “any risks associated with potential PID protections for preparatory acts” should be identified, and then appropriate safeguards to protect against these issues should be put in place.

And in ending its consideration of preparatory acts, the paper goes as on to say that “whistleblowers should not be encouraged to take actions that go beyond making the disclosure… such as conducting their own investigation into alleged wrongdoing” as it could prejudice future investigations.

Playing the long game

Boyle’s PID was legal, all the way to speaking to the press. But his preparatory acts weren’t covered, which amount to taking photos of tax information paperwork, copying tax file numbers, covertly recording discussions with colleagues and disclosing information.

Although the Commonwealth argued in both the District and Supreme courts that this disclosing of information never actually occurred.

Anyone who has worked in an office environment would scoff at these acts being prosecuted as serious crimes, especially when carried out to assist in preventing a corrupt practice that was harming small business owners and finding that it was correct to alert the public to these matters.

The Attorney General’s Department has highlighted this as one of the most significant issues with the legislation Dreyfus drafted over a decade ago, and it has pinpointed why it’s problematic. Yet, it then gives reason as to why the government might continue to deny this protection to whistleblowers.

But if the AG identifies this deficiency in his own laws, explains why it’s problematic, but then decides not to provide immunity to preparatory acts, this suggests that this omission was by design, especially as one would expect the nation’s chief lawmaker might have foreseen all this in 2013.

So, one might consider that this situation where a man acting in the public interest is about to be prosecuted over crimes carrying decades inside, at the exact same time as the AG is considering providing criminal immunity to them, as a set of “very unusual and exceptional circumstances”.

And that condition, the “unusual and exceptional circumstances”, is what attorney Dreyfus claimed in 2023 is needed in order for him to be able to exercise the power he has to end this prosecution, which is provided to him in section 71 of the Judiciary Act 1903 (Cth).

Main image features Richard’s wife Louise Beaston on the left and Boyle on the right. They were married in mid-2019. The guy in between can keep them together or tear them apart.