Attorney General Takes Bizarre Approach to Protecting Public Service Whistleblowers

After ATO whistleblower Richard Boyle posted an open letter to Australian attorney general Mark Dreyfus last month, outlining that he was withdrawing the plea deal he’d put to the Commonwealth prosecutor due to eight bogus charges that remained against his name, when the former tax office employee fronted up to court this month, only five of these charges had been dropped.

On indictment in 2019, Boyle was loaded up with 66 criminal offences in respect of measures he’d taken to build his case to support his 12 October 2017-lodged public interest disclosure, which outlined that the tax office had been dipping into small business accounts without notice, to buoy up agency end-of-financial-year figures. These charges were later dropped down to 24 counts in mid-2020.

The reason Boyle called for eight of his 24 counts to be removed was that during his public interest disclosure defence hearing in October 2022, the Commonwealth Director of Public Prosecutions stated that counts 17 to 24, which allege his disclosure of confidential taxpayer information hadn’t been made out, as “no such disclosure occurred”, yet despite this, the charges stood.

Dreyfus returned for his second stint as chief lawmaker in May 2022, on the promise that he would save whistleblowers, with part of that effort involving an overhaul of the whistleblower protections he’d enacted in the Public Interest Disclosure Act 2013 (Cth), during his last stint in office, and it was expected he may provide relief for disclosers currently before the courts.

So, Boyle has withdrawn his plea deal as the Commonwealth had neglected to deal with the dodgy charges laid against his name when the issue was raised in 2022, while this still stands because the issue was only partially rectified last week, and Richard’s trial will continue commence on 3 November, when he’ll be facing 19 highly disputed criminal charges.

An unreasonable fix

“In the District Court of South Australia this morning, the Commonwealth Director of Public Prosecutions discontinued five alleged indictable offences – counts 20 to 24 inclusive – that cannot possibly proceed to trial,” Boyle wrote in addressing Dreyfus in a 14 March open letter posted to X.

“As the remaining three alleged offences of a similar nature – counts 17 to 19 inclusive – were not discontinued, does this mean I will have to wait another 28 months for resolution of these?” the ex-ATO employee further questioned the AG.

The issue with the eight charges that Boyle’s called out, and had first been raised in court more than two years ago, related to his being charged over allegedly attempting to disclose confidential taxpayer information, when he loaded gathered evidence on to a Proton Mail account belonging to his then lawyer, and instructing the legal professional not to look at the details unless told otherwise.

The charges relating to this include six counts of attempt to disclose information to another entity, contrary to subsection 355-25(1)(b)(ii) of schedule 1 of the Taxation Administration Act 1953 (Cth), which carries up to 2 years imprisonment. Three of these six counts have now been dropped.

The final dubious charges consist of two counts of attempt to disclose another person’s tax file number to another entity, which is the offence contained in subsection 8WB(1)(c) of the Taxation Administration Act, and it too carries up to 2 years gaol time. Both these charges have now been removed.

“Doesn’t the Commonwealth have an obligation under model litigant rules to act as an upstanding role model to the community in Australia’s judicial system?” Boyle further questioned Dreyfus, in relation to the unexplained dropping of only five of the eight charges raised as not being made out.

Frying the messengers

When he was in opposition in October 2021, Dreyfus told The Canberra Times that he understood the PID Act he’d drafted in 2013 was lacking, and he promised to overhaul the laws so that they do result in disclosers being protected against criminal convictions over having legitimately blown the whistle on government corruption in the public interest.

The current AG’s statements were pertinent late in the Morrison government’s term, as three high profile whistleblower prosecutions had been launched against public service disclosers, which comprised of Witness K, who’d revealed the 2004 government bugging of Timor-Leste offices, the case against ADF lawyer David McBride over exposing war crimes and that against Boyle.

Yet, on retaking the office of attorney general in 2022, Dreyfus then dropped the prosecution against ACT barrister Bernard Collaery, which was being run for his part in exposing Witness K’s disclosure. K had pleaded guilty to his charges in July 2021. 

So, of two ex-public servants and a private lawyer, Dreyfus chose to continue to prosecute ex-government employees for speaking out on corruption.

As for McBride, he was prevented from arguing his public interest disclosure defence in 2022, as the prosecution was provided the capacity to withdraw any of his evidence, and when a similar tactic was applied against him during his 2023 criminal trial, he then pleaded guilty and received a whopping 5 years and 8 months imprisonment, with non-parole set at 2 years and 3 months.

McBride’s appeal against conviction was run earlier this month, and the outcome is now being awaited.

Post-truth prosecutions

Boyle was the first whistleblower to argue his public interest disclosure defence under Dreyfus’ PID Act, and considering he’s standing trial in November, the bizarre aspect to the ATO whistleblower’s defence trial is that the court found that the criminal immunity that section 10 of the PID Act provides whistleblowers did serve to protect Boyle over having sung to the ABC.

Yet, the reason Boyle is continuing to go before the courts this November to now face 19 criminal charges, which could see him spending up to 36 years in prison, is that the court also found that this criminal immunity didn’t extend to the preparatory acts that he took in gathering the evidence, which entailed taking photos that he stored in an encrypted email account, as well as recording conversations.

After retaking office, Dreyfus promised to progress two sets of PID Act reforms: an initial round to provide protections in respect of the soon-to-be-established NACC (National Anti-Corruption Commission), with a further major overhaul of the Act taking place later in the term. And the initial reforms were passed into law in mid-2023, in time for the since-failed federal corruption watchdog.

However, Dreyfus did release a November 2023 consultation paper in respect of what the major PID reforms might comprise. A key proposal up for debate in the document is whether the criminal, civil and administrative immunities provided in section 10 of the PID Act might be extended to “cover preparatory acts”, even though there was the potential to find they were covered by the first draft.

So, the AG is now considering whether to provide immunity to future whistleblowers who take the same steps as Boyle, yet in respect of his case, the best that can be done for him is to drop five charges, which makes about as much sense as dropping only three of six counts of attempting to disclose information to another entity last Friday, whilst leaving the other three charges to stand.