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The reasons of the South Australian Court of Appeal on why Richard Boyle will face criminal charges will make every Australian (except the Australian Tax Office leadership) sick in the stomach. Former senator Rex Patrick reports.

Richard Boyle is a whistleblower. Justice Lovell, with justices Doyle and David agreeing, declared:

“The [ATO] accepts that the appellant is a whistle-blower as that term is commonly understood. [Richard] disclosed information to an authorised person pursuant to the terms of the Public Interest Disclosure Act. It was common ground on appeal that [Richard’s] conduct in disclosing the information attracted an immunity from criminal prosecution under the Act. [Richard], 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 …”

They went on to explain that Richard Boyle formally blew the whistle.

“It was common ground that [Richard], on 12 October 2017, lodged a public interest disclosure with the ATO and that it complied with the requirements of the Act. Information contained within the [disclosure] attracted the immunity.”

Botched

The Justices then confirmed the ATO botched the processing of Richard’s disclosure.

“[Richard’s disclosure] was allocated to an authorised recipient for investigation pursuant to s 43 of the Act. His [disclosure] was not dealt with appropriately. By letter emailed to [Richard] on 27 October 2017, the authorised recipient advised that he had discontinued the investigation pursuant to s 48(1)(c) of the Act, having determined that the disclosure did not concern serious disclosable conduct. It is accepted for the purposes of this litigation that this decision was incorrect.”

The Court’s finding is consistent with that of the 2020 Senate Economics Committee (which I was a member of) which found the disclosure investigation was ‘superficial’.

Conclusion of the Senate’s Economics Legislation Committee

Conclusion of the Senate’s Economics Legislation Committee

Vindicated

The Court also recognised the conduct Richard blew the whistle on – the improper use of Tax Office garnishee notices to strip small business bank accounts of funds – was found to have been occurring.

“On 9 April 2018, the Australian Broadcasting Corporation (“ABC”) presented a story called ‘Mongrel bunch of bastards’ as a Four Corners program. It featured taxpayers talking about their adverse experiences with the ATO. [Richard] appeared as a whistleblower.”

[SUPPRESSED]

“In March 2019, the Inspector-General of Taxation and Taxation Ombudsman released a ‘Review into the Australian Taxation Office’s use of Garnishee Notices’. The review was commenced “to maintain community confidence in the administration of the tax system after serious allegations were made about the [ATO’s] inappropriate use of garnishee notices on small businesses” by a current and former ATO officer on the ABC Four Corners program on 9 April 2018.”

Richard blew the whistle. His disclosure was not investigated properly until after Four Corners revealed the conduct and the then Minister commissioned an independent investigation. That investigation vindicated Richard’s concerns.

But he still gets to face the music.

The ‘making’ of a Criminal

As Justice Lovell put it:

The main issue on appeal is whether the appellant’s conduct in gathering evidence to support his disclosure of information also attracts the immunity under the Act.

Much of the case, and potentially the following decades of Richard’s life, turned on the meaning of the word “making”. The legislation states:

If an individual makes a public interest disclosure the individual is not subject to any civil, criminal or administrative liability (including disciplinary action) for making the public interest disclosure; …

Noting the primary issue identified by the Court, the Human Rights Law Centre (HRLC), who supported Richard in his case, argued the immunity applied, but thoughtfully proposed that such an immunity should not be unlimited.

They advised the Court “not every act preceding a [disclosure] would enjoy the immunity. The immunity was limited and would only exist if there was a nexus between the act and the disclosure, and only where the act is reasonably necessary for the making of a valid disclosure.”

HLRC went on to submit that “the use of the expression “making” denotes a process rather than a focus on the actual moment of disclosure. A disclosure cannot be made, they submitted, without the steps being made to prepare it. Thus, those preparatory steps with sufficient nexus to the disclosure should be regarded as part of “making” the disclosure.”

Light Verb, Heavy Verb

It’s a debate most regular people would respond to with a “what the …” but it is what so often happens in courts. Richard’s immunity came down to an English language debate in the court room. Justice Doyle summarised that debate:

“Starting with the ordinary meaning of the verb “make”, a survey of dictionary definitions suggests it may be used in a range of differing senses. However, of relevance to the present matter, those meanings include meanings which are consistent with the arguments made by each of the parties. Consistently with [Richard’s] argument, “make” may mean to construct or create. Consistently with the [ATO’s] argument, it may also mean to bring about or cause to occur. Predictably, but unhelpfully, the appropriate meaning of the word “make” will often depend upon the context in which it is used, and in particular the noun which is the object of the relevant phrase or sentence. Related to this last observation, “make” is sometimes described as operating as a “light verb”; that is, a verb which has little semantic content of its own, but which forms a predicate with – and takes its meaning from – some additional expression, which is usually a noun. Whilst [Richard’s] meaning of “make” (construct or create) perhaps gives the word greater semantic force of its own, the [ATO’s] meaning (bring about or cause) is more consistent with its use as a light verb.”

The Court decided ‘light verb’ was correct in properly understanding the scope of the whistleblower protection. “Making” in the provision in the Act only refers to the act of submitting the disclosure. It’s only at the point of submission that the immunity kicks in.

Richard will now face trial. A criminal trial.

Drop the Charges

There you have it. The clear lesson – DO NOT BLOW THE WHISTLE unless you are a barrister of King’s Counsel.

It’s a fundamental tenet of the rule of law that no one is above the law. But we make exceptions. We let the police ‘break’ the law catching up to a speeding vehicle without alerting the speeding driver by the activation of lights and sirens. We grant criminal immunity to ASIO officers when they are involved in a special intelligence operation. 

We need laws granting immunity for people making well intended, but unlawful, mistakes in preparing a whistle blowing disclosure. We also need a Whistleblower Protection Authority to assist whistleblowers know what the limits are.

In the meantime, Attorney-General Mark Dreyfus, who wrote the broken 2013 laws that have failed Richard, could stop this tragic prosecution at any stage. He could do so recognising that pursuing Richard is not in the public interest – that this whole thing is a Shakespearian tragedy, and one that has a huge ‘chilling’ effect on whistleblowing in Australia.

But instead of acting in the public interest, Dreyfus sits idly in his office doing nothing. Surely he has failed to meet his public interest obligations as Attorney-General of Australia.

Richard Boyle appeal fails. Another deep blow for whistlebower protections.

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.

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