He blew the whistle when no one else did. He should not be facing jail

Australians should not be punished for speaking the truth. When courageous whistleblowers speak up about human rights violations, government misfeasance or corporate misdeeds, we can demand action. But when wrongdoing stays in the dark, when Australian don’t speak up, there is no accountability. That is why whistleblowers play a vital democratic role – without them, often there is no justice.

On Monday, Judge Liesl Kudelka of the South Australian District Court dismissed former public servant Richard Boyle’s application for protection under the Public Interest Disclosure Act, which covers federal public sector whistleblowers. It is the latest sad twist in a sorry saga that has dragged on for almost five years, and a major blow to the protection of fundamental rights in this country. It is a case of acute injustice; a case that must end now.

ATO whistleblower Richard Boyle.Credit:Ben Searcy

Boyle previously worked at the Australian Taxation Office in the debt collection team. He became concerned about the inconsistent and arbitrary use of debt recovery powers, including garnishee orders – which allow the ATO to take money from taxpayers’ bank accounts. Boyle had described internal pressures to be heavy-handed, even where taxpayers were at risk of suicide, or facing domestic violence or mental health crises.

So he spoke up. He made an internal disclosure under the Public Interest Disclosure Act. He went to the tax ombudsman, the Inspector-General of Taxation. Nothing was done. So as a last resort, he went public as part of a joint Age/Sydney Morning Herald/Four Corners investigation.

Because Boyle spoke up, there was transparency and ultimately accountability. In 2019, the inspector-general’s inquiry accepted there were problems with the debt recovery process, particularly at the Adelaide office (where Boyle worked). A month later the Small Business Ombudsman’s inquiry found the use of garnishee notices was “excessive”. In 2020, a Senate inquiry found that the tax office’s initial investigation into Boyle’s whistleblowing was “superficial”. Boyle has been vindicated; tax office practices have changed as a result. His whistleblowing was clearly in the public interest.

And yet he now faces trial – and potential jail time – for doing the right thing. Kudelka’s judgment is currently suppressed, awaiting a further hearing on Tuesday, so there is a limit to what can be said about it. But the dismissal is a devastating blow for democracy and fundamental rights in Australia.

Whistleblowing law is intended to protect people like Boyle who speak up in the face of wrongdoing. It is intended to offer immunity from criminal, civil and administrative liability. That Kudelka has found Boyle is not entitled to that immunity shows the law is broken. Boyle should not be on trial – that’s the bottom line.

The judgment should be a wake-up call for federal Attorney-General Mark Dreyfus. On Tuesday, the federal government will move the first phase of whistleblowing reform through the Senate. It is welcome and long overdue – but nowhere near enough. Dreyfus has promised more comprehensive reform later this year. That must be a priority.

The attorney-general has also committed to a discussion paper on whether Australia needs a whistleblower protection authority. Such a body would oversee and enforce whistleblower protections and support whistleblowers like Boyle. It is the missing piece of the jigsaw puzzle, an institution to ensure whistleblowing laws are working in practice, not just on paper. The whistleblower protection authority has twice been recommended by bipartisan parliamentary committees and was among Labor’s 2019 election commitments. The government should commit to establishing it, rather than just talking about it.

All this reform is urgently necessary. But for as long as Boyle remains on trial, the government’s commitment to whistleblower protections and protecting fundamental rights will be undermined. How can the government promote a speak-up culture in the public service, and beyond, while it oversees the prosecution of someone who thought they were complying with whistleblowing law?

Boyle is not the only one. Defence whistleblower David McBride spoke up about alleged war crimes perpetrated by Australian forces in Afghanistan. Last year, he was forced to withdraw his whistleblowing defence after a last-minute national security intervention by the government. McBride will face trial later this year – not for alleged war crimes, but for blowing the whistle on them. The attorney-general has the power to end both of these cases – for now, he refuses to use it.

Monday was a bad day for our democracy and for the ability of our legal system to protect those who speak truth to power and reveal wrongdoing. But most of all, it was a bad day for Boyle – a brave Australian who thought he was doing the right thing. An Australian who has spent the past five years in limbo, without a job, spending hundreds of thousands of dollars on legal fees, bearing the mental and physical health impacts of this trauma, with the prospect of jail time at the end of the road.

Mark Dreyfus can no longer stand on the sidelines and allow such injustice to go unchecked. For the sake of our democracy, and the sake of Richard Boyle, the attorney-general must act.

Kieran Pender is a senior lawyer at the Human Rights Law Centre.

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