The South Australian District Court has dealt a fatal blow to public sector whistleblowing, basically making it impossible for anyone to safely blow the whistle. Rex Patrick explains the public interest travesty.
I attended the District Court last week when Judge Kudelka handed down her judgement in a Richard Boyle’s whistleblower defence case. The court was overcrowded with Richard’s supporters. It was standing room only. The media were there too.
Deep sighs could be heard as she read out her decision. Despite Richard having formally submitted a Public Interest Disclosure to high authority within the Australian Tax Office, the court ruled Richard was not immune from criminal prosecution in matters related to the Disclosure.
It’s a judgement that will cause anyone and everyone in the public service to abandon internal watch for maladministration, power abuse, misfeasance and corruption.
It’s those eyes and ears that are crucial to identify the breakdown of proper and ethical public administration. This decision will suppress that scrutiny and be a boon for unethical behaviour inside the public service.
A mongrel bunch of bastards
Richard was an employee of at the Adelaide offices of the ATO.
On 12 October 2017 he lodged a Public Interest Disclosure about an unethical directive given by senior leaders to issue high impact enduring garnishee notices, a notice that allowed the ATO to empty a business’s back account, in cases where a less impactful method was more appropriate.
Just two weeks later his Disclosure was rejected by an ATO investigator.
On 21 November 2017 Richard lodged a redacted version of his Public Interest Disclosure, rebranded as a complaint, to the Office of Inspector General of Taxation. His complaint was not acted upon.
On 9 April 2018 the ABC aired a 4Corners program ‘Mongrel bunch of bastards’ examining whether the ATO was playing by the rules and acting fairly and ethically. Mr Boyle appeared on the program.
On 4 January 2019 Richard was charged by the ATO for copying taxpayer information and disclosing it to the media.
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The last hour of power
As a direct result of the 4Corners program the Office of Inspector General of Taxation, the very office who had ignored Richard’s 2017 complaint, announced a review into the use of garnishee notices by the ATO.
In March 2019, a few months after Richard was charged, the Inspector General completed his review. It revealed some pretty damning stuff, including for example an email sent to 12 frontline staff in the Adelaide office where Richard worked.
The Inspector General found that “Problems did arise in certain localised pockets with the issuing of enduring garnishee notices for a limited period, particularly so at the ATO’s Adelaide local site …”
Richard was vindicated.
Senate Inquiry reveal a Botch Investigation
On the 10 September 2019, at my request, the Senate issued an order for Tax Commissioner Chris Jordan to hand over all documents related to the investigation into Richard’s Disclosure. The Economics Committee was ordered to examine the documents and report back to the Senate.
The Senate conducted the examination, which involved closed hearings attended by all relevant players, and found the Disclosure investigation was ‘superficial’. My preferred word was “botched”, but I couldn’t get consensus using such a word.
But for the botched nature of the ATO investigation into Richard’s Disclosure, some of things he is alleged to have done would never have needed to be done.
Court judgement
Returning to the prosecution proceedings, the South Australian District Court has found that he did make a proper Public Interest Disclosure, but that some of the things Richard is alleged to have done in the preparation the Disclosure are not protected by Public Service whistleblower laws.
These include 14 separate allegations that he took photographs of taxpayers’ information and covertly recording conversations with colleagues in the immediate lead up to his disclosure. The Court found these sorts of acts, because they were unlawful, would constitute an “unlawful investigation” and such investigations were not protected under the Public Interest Disclosure Act.
A travesty
Richard has been caught out in an unfortunate reverse trifecta; in the first instance he was confronted by an employer, the ATO, engaging in an abuse of power; in the second instance by an employer who demonstrated an incredible incompetence in investigating his public interest disclosure; and now, in a third instance, by a judicial officer who has assumed all whistle blowers should be experts in black letter law.
In my respectful view Judge Kudelka has erred in her understanding of the legislation in two ways.
Firstly, the Public Interest Disclosure Act was brought into existence to protect an employee ‘David’ calling out an agency ‘Goliath’ when it was apparent that ‘Goliath’ was doing wrong. And the Parliament did not expect ‘David’ to be a King’s Counsel.
Secondly, the act of making a Disclosure is a moral and intellectual exercise that involves making a decision to blow the whistle, gathering the facts to ground a disclosure, preparing the disclosure and then tendering an allegation. Her Honour’s judgement suggests it is just the handing over a document.
It is my view the decision should be appealed to a superior court where more senior legal minds can re-examine the issue, mindful that whistleblowers are to be protected by the law, not subjected to a financial and psychological beating because of it.
Finally, if I am wrong about the judgement, then the law is wrong.
Irrespective of all that, Richard is a hero, and Federal Attorney-General Mark Dreyfus should use his Judiciary Act powers to stop this persecution.
The public interest is not served by the legal crucifixion of Richard Boyle.
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 - www.transparencywarrior.com.au.