After the South Australian Court of Appeal ruled that he had no protection under Commonwealth whistleblower laws, Richard Boyle has pleaded guilty to four charges as part of a plea deal. Rex Patrick reports from the Court.
The mood was sombre inside a crowded courtroom as Richard Boyle stood before South Australian District Court Judge Liesl Kudelka to timidly plead guilty to four criminal offences, with the expectation that he would at least avoid going to gaol for blowing the whistle on the ATO.
It was an act forced upon him after a court enforced realisation that he wasn’t protected by the whistleblower laws he thought did protect him, but he was wrong.
Blowing the whistle
In 2017, Richard blew the whistle on the ATO for inappropriately, indiscriminately, and carelessly issuing garnishee notices that brutally emptied businesses’ bank accounts of money to settle ATO debts.
During the Court of Appeal proceedings, the prosecutors conceded that Richard was a whistleblower as that term is commonly understood. He had disclosed information to an authorised person pursuant to the terms of the Public Interest Disclosure Act.
It was also accepted that his disclosure was not dealt with properly by the ATO. The ATO botched the investigation into his claims and did nothing.
That is, they did nothing until their inappropriate activity was the subject of an ABC Four Corners program (Note that there is no allegation that Richard disclosed taxpayer information to the ABC). In an act of revenge, the ATO charged Richard, not for blowing the whistle, but for what he did in preparing his disclosure, namely using his mobile phone to take photographs of taxpayer information, covertly recording conversations with ATO colleagues; and uploading photographs of taxpayer information to his lawyer’s encrypted email account.
The Court of Appeal found that those preparatory acts were not covered by protections in the Public Interest Disclosure Act and,
as such, he was not immune from prosecution.
An unsatisfactory plea deal
In mid-March, a deal was entered into with the Commonwealth Director of Public Prosecutions. If he pleaded guilty to four charges, they would discontinue prosecution of the remaining 15. He originally faced 66 charges, with 47 dropped before today’s arraignment.
And so it was that Richard pleaded guilty to four counts as follows:
- 1 count of making a record of protected information contrary to Schedule 1 of the Tax Administration Act 1953 (Cth). Maximum Penalty: 2 years imprisonment.
- 1 count of recording another person’s tax file number, contrary to the Tax Administration Act 1953 (Cth). Maximum Penalty: $21,000 fine, 2 years imprisonment or both.
- 1 count of Intentionally using a listening device to record a private conversation without the consent of the parties to that conversation contrary to the Listening and Surveillance Devices Act 1972 (SA): Maximum Penalty $10,000 or 2 years imprisonment.
- 1 count of disclosing protected information to another entity (his lawyer), contrary to Schedule 1 of the Tax Administration Act 1953 (Cth). Maximum Penalty: 2 years imprisonment.
It is understood that the Commonwealth Director of Public Prosecutions has agreed not to press for a custodial sentence, but will insist that a conviction is recorded. Richard’s position is that no conviction should be recorded.
Broken laws (almost) broke the man
A conviction should not be recorded. In the Court of Public Opinion, the almost unanimous view is that Richard has made Australia a better place. An investigation by the Inspector-General of Taxation that followed the airing of the ATO’s conduct by Four Corners found garnishee-related problem did arise in the office that Richard worked with,
and laws were changed to prevent that conduct being repeated.
Richard’s saga has also shown how broken the Commonwealth public servant whistleblower protection laws are.
One of the four objectives of the Public Interest Disclosure Act is to ensure that public officials and former public officials who make public interest disclosures are supported and protected from adverse consequences relating to the disclosures. Richard’s case has revealed failure in this objective.
Another of the four objectives is to ensure that disclosures by public officials and former public officials are properly investigated and dealt with. Another fail!
Those two failures led to the failure of the third objective, which is to promote the integrity and accountability of the Commonwealth public sector.
The only objective that has been met is the one that seeks to encourage and facilitate the making of public interest disclosures by public officials and former public officials. Richard was encouraged by the Act, which sucked him in eight years ago and has finally spat him out a broken man (he may not have been with us but for the support of his wife, Louise Beaston).
His story is one that should enliven support for reform of our federal whistleblower protection laws, including support for the Whistleblower Protection Authority Bill introduced in the last Parliament by Senator David Pocock and Lambie.
What’s next?
Sadly, the story for Richard is not over yet.
Richard still faces sentencing. While the prosecution has not sought a custodial sentence, it is ultimately up to Judge Kudelka whether or not he will walk from the court a free man at sentencing later in the year (submissions will be made in August with a final outcome shortly thereafter). However, it must be said that it is highly unlikely that the Court will seek a jail term in circumstances where the prosecutor doesn’t also seek that outcome.
Richard does still run the risk of having a conviction recorded against his name; something that could haunt him every time he makes a job application.
One hopes that this doesn’t happen, but if it does, those who are informed will understand that his conviction can only properly be worn as a badge of strength, much like the ‘S’ on a Superman costume, because Richard is a superhero.
Whistleblower persecutions. The cost of ignoring those who dare speak out.
Rex Patrick is a former Senator for South Australia and, earlier, a submariner in the armed forces. Best known as an anti-corruption and transparency crusader, Rex is also known as the "Transparency Warrior."