On trial for bravely telling the truth
OPINION | Democratic Freedoms
The trial of a whistleblower who spoke up about government wrongdoing has begun in Adelaide. How did it come to this?
By Kieran Pender
Senior Lawyer
Human Rights Law Centre
Richard Boyle told the truth. He spoke up because the Australian Taxation Office, an immensely powerful government agency, was abusing its power. It was ruining the lives of small business owners and Boyle, a tax office employee in its debt recovery division, wanted to do the right thing.
First, Boyle spoke up internally. When no one listened, he raised the matter with the tax ombudsman. As a last resort, he went to this publisher – as part of a joint investigation by The Sydney Morning Herald and The Age with the ABC. Throughout, Boyle told the truth. The ATO had been acting inappropriately, and it was in the public interest for Australians to know.
Boyle’s actions have been vindicated by three separate inquiries. Reform to the ATO’s debt recovery practices have followed. And yet Boyle is on trial for telling the truth.
His case began last week with a whistleblowing defence. It is the first time this defence has been argued in court, making it an important legal test case.
In the ongoing hearing, a South Australian district court judge is dissecting the way in which Boyle blew the whistle. If he complied with the requirements of the Public Interest Disclosure Act, the whistleblowing law for public servants, Boyle should be immune from criminal prosecution.
That is because the PID Act provides that if a whistleblower makes a qualifying disclosure, they cannot be subject to “any civil, criminal or administrative liability (including disciplinary action) for making the public interest disclosure”. While the PID Act prioritises internal whistleblowing, it recognises that sometimes public disclosure – for example, to the media, or a politician – is a necessary safety valve. If their internal disclosures have not been heeded, the act authorises public servants to go public in certain circumstances. In cases of an emergency, it empowers them to go public without first disclosing their concerns internally.
Boyle is arguing that he followed the rules – blowing the whistle internally first, and only later going public – and therefore has a complete legal defence. If he wins this part of his trial, the case against him will be over. If he loses, he will face a jury when the trial resumes late next year.
But whatever the outcome, it should never have come to this.
A win for Boyle would be pyrrhic at best. His life has been devastated by this unjust prosecution. Boyle has been largely unable to work since being charged, and been forced to spend vast sums on legal fees. He has made public that his mental health has suffered immensely – the trial had to be postponed last year due to his depression. “I feel like I almost died from the stress,” he has said.
If he loses the whistleblowing defence, and is ultimately convicted by a jury, Boyle will face the potential of a lengthy term of imprisonment. All for telling the truth, in the public interest, about government wrongdoing.
It is not too late to end this sorry saga. The Commonwealth Director of Public Prosecutions has the power to end this case at any time. It should do so. The prosecutorial lodestar is the public interest; this prosecution is not in the public interest, especially given the chilling effect it has on other prospective whistleblowers.
If the DPP will not act, Attorney-General Mark Dreyfus KC must discontinue the case – just as he did in July to stop the unjust prosecution of whistleblower Bernard Collaery.
It is ironic that this trial began so soon after the national anti-corruption commission bill was introduced into federal parliament. The Albanese government has rightly heralded this important new step for Australia’s integrity system. But its commitment to public sector integrity and transparency is undermined by its refusal to end this unjust case.
For six years, previous Coalition governments have ignored the pressing need for reform to the PID Act that might have prevented this trial from proceeding. In 2016, an independent review found the experience of whistleblowers under the law was “not a happy one”, and made numerous recommendations. The Turnbull and Morrison governments failed to act – all while increasing the penalties for secrecy offences and overseeing the prosecution of whistleblowers.
Dreyfus must therefore prioritise PID Act reform. Once a global leader, Australia now lags other nations in protecting whistleblowers. That needs to be addressed.
Practical support for whistleblowers is also essential. As far back as 1994, a Senate committee called for a standalone whistleblowing authority. This call was repeated by a bipartisan joint parliamentary committee in 2017, the idea was taken to the 2019 election by Labor, and contained within the NACC bills moved in the House of Representatives by Helen Haines, and passed in the Senate by the Greens, with Labor support, in the last term of government. A whistleblower protection commissioner or authority will ensure whistleblowing laws actually work in practice.
But right now, with two whistleblowers on trial (fellow whistleblower David McBride blew the whistle on alleged war crimes in Afghanistan and is set to go on trial later this month), this better future seems distant. It doesn’t need to be that way. With the stroke of a pen, these prosecutions can be dropped. That would be a critical step towards protecting and empowering Australian whistleblowers, and safeguarding our country from corruption and abuses of power for generations to come.
Kieran Pender works in the Democratic Freedoms team at the Human Rights Law Centre. You can learn more about the team's work here.