Wednesday, October 05, 2022

Tax Office whistleblower prosecution reaches court

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Tax Office whistleblower prosecution reaches court

Tom McIlroy
Tom McIlroyPolitical reporter
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Attorney-General Mark Dreyfus is again being urged to end the prosecution of a Tax Office whistleblower, with legal advocates warning the case will have a chilling effect on officials who witness wrongdoing.

Hearings related to the case of former public servant Richard Boyle will begin in the District Court of South Australia on Tuesday. He spoke publicly in 2018 about aggressive practices of the Australian Taxation Office, including hardline use of garnishee notices used to claw back tax debts from individuals and business.

He was charged with offences related to the misuse of sensitive information, telephone tapping and recording of conversations without consent. The case will be the first time a provision under the federal whistleblower law, the Public Interest Disclosure Act, is tested in a criminal case.

Advocacy group the Human Rights Law Centre this week restated its call for Mr Dreyfus to discontinue the prosecution, following his move to end the case against lawyer and whistleblower Bernard Collaery.

Mr Dreyfus ended the Collaery prosecution citing Australia’s national interest, national security and relationships with close neighbours. But he maintained it was exceptional, and resisted calls to intervene on behalf of Mr Boyle.

“Whistleblowers should be protected, not punished. There is no public interest in this prosecution going ahead,” Human Rights Law Centre senior lawyer Kieran Pender said on Monday.

“Richard Boyle did the right thing – he spoke up about wrongdoing taking place within a powerful government agency.”

Mr Boyle’s disclosures led to a bipartisan parliamentary inquiry making 37 recommendations and a report describing the ATO’s performance as an “annus horribilis”.

A separate tax ombudsman inquiry into garnishee notices said their use was excessive.

Tax Commissioner Chris Jordan has previously hit out at media reporting of Mr Boyle’s case, calling for greater accuracy and faithfulness to the facts.

Mr Pender said the prosecution of Mr Boyle “is unjust and will have a chilling effect on prospective whistleblowers”.

“This case warrants the attorney-general’s intervention to end it,” he said.

If Mr Boyle is unsuccessful, he is expected to go on trial before a jury in October 2023. Legal argument is expected to focus on technical points in the coming days, which could further delay proceedings.

A previous start to the matter was delayed in July. The former Morrison government spent almost $6 million on the prosecution of Mr Boyle and the Collaery case, according to figures released this year.

Former independent senator for South Australia Rex Patrick has advocated on Mr Boyle’s behalf.

“This hearing is the most significant test of public service whistleblower protection laws in Australia since they received royal assent in 2013,” he told The Australian Financial Review on Monday.

“This trial has all the hallmarks of a Shakespearean tragedy; the tragic hero Richard, a dichotomy of good and evil, internal and external pressures, the paradox of life, and the foul revenge of the ATO.”

Mr Patrick said any jail sentence for Mr Boyle would prompt public outrage. He revealed he had discussed the case with Mr Dreyfus before leaving parliament in July.

“Well after he’s left the parliament, he’ll reflect on his decision not to intervene in this case and will suffer deep regret,” Mr Patrick said of the Attorney-General.

A spokeswoman said Mr Dreyfus “does not comment on other cases currently before the courts”.

Tom McIlroy reports from the federal press gallery at Parliament House. Connect with Tom on Twitter. Email Tom at