Richard Boyle argues he shouldn’t have a conviction recorded against his name for blowing the whistle. The Australian Tax Office thinks otherwise. Rex Patrick reports from Court.
In today’s sentencing hearing, the ATO didn’t press for a custodial sentence, but they were seeking a conviction.
As revealed in the ABC’s 4Corners ‘No Return’ story, the Australian Tax Office (ATO) had last year exercised its discretion to forgive $800M of tax debt from 301 taxpayers – on average, $2.6M each. But none of that ‘love’ was being shared with ATO whistleblower Richard Boyle in the SA District Court today.
On 27 May, Richard Boyle pleaded guilty to 4 criminal offences he committed whilst preparing a ‘public interest disclosure’ (the formal term for whistleblowing). He thought his actions were protected. It’s taken veritable battalions of lawyers, barristers, senior counsels and four judges to work out that he wasn’t protected.
If only Richard had the benefit of hindsight.
Good faith conduct
The reality is that Richard and acting in good faith, with good intent and with no self-interest. Indeed, he acted out of a deep commitment to public service. He saw an egregious exercise of garnishee powers by his employer, and he stood up and reported it. The ATO proceeded to botch the investigation into his disclosure and only when the ABC did a feature piece on the abuse was action taken.
Of course, the other thing that resulted from the ABC’s show was an Australian Federal Police raid on Richard’s house and the laying of charges against him. Richard had upset senior people in the ATO, and they were after vengeance, directing the full force of the Federal law enforcement against him.
He was originally charged with 66 offences, but over time, all but four were dropped.
He’s now pleaded guilty to one count of making a record of protected information, one count of recording another person’s tax file number, one count of intentionally using a listening device to record a private conversation and one count of disclosing protected information to another entity.
To be clear, and this is accepted by all, he never used the information other than to prepare his public interest disclosure, and the offence related to disclosing protected information was a disclosure to his lawyer.
But the ATO needs to always get their man, unless, of course, he’s wealthy…
ATO argument
Yesterday I filled in a car insurance form. I was asked to declare whether I had a criminal conviction. I ticked the ‘no’ box. But it brought home the consequences of having a conviction recorded against your name. If convicted, Richard will have to tick the ‘yes’ box every time he applies for a job or is seeking to be involved in anything where trust is important.
The ATO had contacted one of the taxpayers whose information was photographed, who deposed to the Court that she was affected by the disclosure. Counsel for Richard accepted that some anxiety may have occurred through knowledge of the photo being taken, but it was quite distinguishable from someone hacking a server and then sharing the information on the internet.
The ATO also argued that Richard took a long time to plead guilty, which they said evidenced a lack of remorse. But as Richard’s counsel pointed out, he was entitled to seek clarification from the courts as to whether he was immune from the offences he was charged with.
No malice, no personal gain
Richard’s lawyers argued that he should not have a criminal conviction recorded against his name.
Richard took a photograph. Richard hit a record button. Richard hit the send button on an encrypted email. He did so believing his conduct was reasonable and protected under the Public Interest Disclosure Act (PID). So, he was wrong about that. There was no malice in his action, and, on balance, only good has come from it (except to him).
After the ABC 4Corner’s program reported on the issues that Richard had raised in his ‘public interest disclosure’, the Inspector-General of Taxation (as the ATO oversight body was referred to then) conducted an investigation into the ATO’s use of garnishee notices and changes were made to their use.
Even the proceedings themselves have helped officials and potential whistleblowers understand the limits of the protections of the PID Act. Indeed, in the recent public consultation on potential changes to the act, one of the issues raised by the Government was “Clarifying the scope of ‘preparatory acts’ taken by a public sector whistleblower that are covered by immunity under the PID Act.”
The Government knows full well that the law was faulty, indeed a trap for any Australian Public Service whistleblower.
Richard’s lawyers put before Judge Kudelka letters of support from Members of Parliament, including fellow whistleblower Andrew Wilkie and Senator Shoebridge.
Richard thought he was doing the right thing. He has suffered tremendously for his actions. His wife has suffered tremendously.
If only he’d been wealthy enough to have a $2.6M tax debt, then the ATO might have look the other way.
The Court has reserved its sentencing decision.
Whistleblower to whipping boy. Richard Boyle punished for playing by the rules
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."