Drop the Criminal Charges Against Richard Boyle: His Actions Embodied Public Interest

The nation of Australia is still glowing in the wake of WikiLeaks founder Julian Assange being released and returning to be with his family in this country, and rightly so.

Over the last decade, a local and global grassroots campaign and a legal team in tandem saw to it that the world-renowned Australian journalist is now back amongst us, with some top Australian political figures taking a last-minute bow and a lot of credit at the finish line.

But some of these same politicians are overseeing the political prosecution of Australian Tax Office whistleblower Richard Boyle, who revealed information in the public interest at risk of his own liberty, just like Assange did. However, unlike Julian, he didn’t garner world headlines for doing so.

Another key aspect to Boyle’s case that makes it different to that of Assange is that the latter wasn’t a member of the Australian public service. And as has been revealed over the past five years, for those in the APS who do speak out in the public interest, there’s hell to pay.

Boyle drew attention to a garnishee practice, or dipping into a debtor’s bank account, being employed illegally by the tax office to small businesses in order to maintain ATO key performance indicators. And the issue has since been rectified because his actions necessitated the change.

Richard is your everyperson, just like the one sitting next to you on the bus or entering the shopping centre at the same time as you. 

Richard saw wrongdoing and he followed the rules set out in law in blowing the whistle. And he isn’t going to get a fanfare if they drop the charges against him.

Indeed, it is just because he is your average civilian that they’re planning on laying in the boots.

And that same political establishment that is right now taking a bow for saving Assange – a global personality – could easily step in at any time and save Richard Boyle, your average Australian citizen.

Protected to a point

South Australian Supreme Court Justice David Lovell explained on 19 June 2024 findings, which relate to Boyle’s appeal against a ruling that found his actions in gathering information to support his disclosure weren’t protected, that Boyle is a whistleblower, “as that term is commonly understood”.

The judge further noted that “it was common ground on appeal” that Boyle’s “conduct in disclosing the information attracted an immunity from criminal prosecution under the” Public Interest Disclosure Act 2013 (Cth) (the PID Act).

Boyle, “however, faces criminal charges, not for the disclosure of information he believed needed to be disclosed, but for his conduct in unlawfully gathering evidence he considered would support his disclosure”, Lovell further made clear.

The PID Act was drafted by current Australian attorney general Mark Dreyfus, in an earlier stint as the nation’s chief lawmaker in 2013. And he said in opposition that he’d been aware it would be in need of tidying up, and as the Coalition didn’t do that whilst in office, he’s undertaking that now.

The SA Supreme Court justice further set out that the main issue on appeal was whether Boyle’s “conduct in gathering evidence to support his disclosure of information also attracts the immunity under” the PID Act.

And the court found it doesn’t, so Richard now has to stand trial in September.

A litany of charges

Blowing the whistle on the tax office is not going to score one too many friends in certain Australian political class circles either. And what that means in practical terms is that when Boyle was first charged, he was slapped with a whooping 66 criminal charges, which were later downgraded to 24.

Although the court has found that what Boyle did in blowing the whistle, the path he took, was protected, so the act of going to the press and singing was all good.

Of course, if he didn’t have anything to support his case though, the ABC might have just shown him the door.

Subsection 10(1)(a) of the PID Act provides that if an individual makes a public disclosure, “the individual is not subject to any civil, criminal or administrative liability (including disciplinary action) for making the public interest disclosure”.

But the court found on appeal that this doesn’t cover acts of evidence gathering that breach the law, which one might expect was one of those oversights the AG made on first draft, and doesn’t appear to have yet rectified under his first round of amendments to the PID Act passed in June last year.

So, Boyle is facing six counts of make a record of information, contrary to subsection 355-25(1)(b)(i) of schedule 1 of the Taxation Administration Act 1953 (Cth) (the TD Act), which carries up to 2 years imprisonment.

Two counts of unauthorised copying of a tax file number are also on the list, which is an offence that sits under subsection 8WB(1)(a) of the TD Act, and carries up to 2 years inside and/or a $33,000 fine.

The SA man now has seven counts of using a listening device to overhear, record, monitor or listen to a private conversation against his name, which sits in section 4 of the Listening and Surveillance Devices Act 1972 (SA). And this can see one put away for 2 years and/or fined $10,000.

There are a further six counts of attempt to disclose information to another entity, contrary to subsection 355-25(1)(b)(ii) of schedule 1 of the TD Act, which carries up to 2 years imprisonment.

Two counts of attempt to disclose another person’s tax file number to another entity are also on the list. This offence is contained in subsection 8WB(1)(c) of the TD Act, and it carries up to 2 years imprisonment.

While count 7, whatever that may be, is not cited in the transcript of the recent proceedings.

So, the ex-ATO officer is facing around half a century in prison for using his mobile phone to take photographs of taxpayer information, covertly recording conversations with ATO colleagues and uploading photographs of taxpayer information to a ProtonMail server account.

And the court has also found that he was right in blowing the whistle, along with the general path he took to do that, while the ATO has undertaken to stop the activity that he raised awareness to, and several inquiries have agreed that the way the garnishee procedure was being utilised was unlawful.

Granting reprieves

The Australian attorney general is currently in the process of drafting a second amendment bill, which is to give the PID Act a thorough overhaul, and one would hope that this obvious anomaly in the law to protect those exposing corruption is righted in the final draft.

But the fact remains that the whistleblower laws are currently failing Boyle. And just as was the case with esteemed lawyer Bernard Collaery, and as the court has found, his actions were in the public interest.

When entering office in 2022, Dreyfus kicked off his second time as chief lawmaker by granting Collaery a reprieve, because the attorney general has that power.

Section 71 of the Judiciary Act 1903 (Cth) allows the attorney general to end a prosecution, when the office bearer sees fit.

So, Dreyfus could do that right now in regard to Richard Boyle. And the public would overwhelmingly thank him for it and see that he is the champion of us all – of us everypeople.