He had suffered for seven years. He was threatened with a library of charges that would have landed him in prison for years. And all for conducting himself in the manner expected by a whistleblower revealing the unlawful practices of the organisation employing him. The tragic — and purposely engineered — situation for such figures is that exposing a misdemeanour or wrong via a public interest disclosure is only ever feasible by breaching a multitude of regulations and laws. The reason: not doing so would make the disclosure threadbare and light.
Richard Boyle’s case exemplified the points. As an employee of the Australian Tax Office, he had gone through the necessary steps under the Public Interest Disclosure Act (PID Act) 2013(Cth) by first making an internal disclosure. The disclosure alleged that the ATO’s use of garnishee notices requiring banks to hand over taxpayer monies without notification breachedthe Australian Public Service Code of Conduct. The merits of the submission were dismissed a mere fortnight later. A complaint to the Inspector General of Taxation was stymied.
Sensing trouble, the ATO offered Boyle a settlement in January 2018, with the usual gagging proviso. He refused. With the avenues exhausted, he made what he thought to be a protected public disclosure to the media, involving the Age/Herald/Four Corners collaboration that led to the April 2018 Four Corners production Mongrel Bunch of Bastards.
A few days prior to the episode’s airing, Boyle’s Edwardstown apartment was raided by the Australian Federal Police. The Commonwealth Department of Public Prosecutions initially drew up a list of 66 criminal charges, which was pared back to 24, focusing on revealing protected information, thereby breaching the Taxation Administration Act 1953 (Cth) and South Australian laws covering the misuse of listening devices. Among the charges were allegations that conversations had been taped without consent and photos taken of confidential taxpayer information. Despite the process behind gathering the material in question, subsequent reviews confirmed that Boyle’s claims had merit.
Boyle subsequently attempted to use sections 10(1)(a) and 23(1)(c) of the Public Interest Disclosure Act (PID Act) 2013 (Cth), arguing that criminal liability did not apply to his revelations, as they were valid public interest disclosures. He further argued that the relevant legal framework protected both the public official making the disclosure of wrongdoing and the necessary steps required to make it, including gathering pertinent evidence and information.
This did not convince Judge Liesl Kudelka of the South Australian District Court. In March 2023, the judge found that Boyle had engaged in a form of “‘vigilante justice’ prior to making a public interest disclosure.” She expressed reservations about “the concept of a public official holding on to information that, in the public interest, should be disclosed whilst conducting their own investigation of that information in order to gather ‘evidence’ of disclosable conduct which then may, or may not, be disclosed.” Unrealistically, the judge accepted the view that such disclosures were easy to make, requiring “little formality” with “the barest of information”.
In 2024, the South Australian Court of Appeal accepted the lower court’s finding that s. 10(1)(a) was “confined to the act of disclosing information” and did not cover Boyle’s “anterior acts of obtaining and recording information” regarding a majority of the counts. In November last year, the High Court of Australia refusedBoyle’s application seeking an extension of time to file a special leave application regarding Judge Kudelka’s decision. The grant would be “futile” as the appeal did “not enjoy sufficient prospects of success to make it in the interests of the administration of justice or in the particular case”.
Having demonstrated the woeful limitations of the PID in practice, and the conspicuous reluctance of the Albanese government to intervene and drop the case, Boyle was left with a plea deal with the CDPP that reduced the charge sheet to four counts: disclosing protected information to another entity, making a record of protected information, using a listening device to record a private conversation, and recording another person’s tax file number. The guilty plea, while enabling Boyle to avoid jail, did not impress such supporters as the Human Rights Law Centre. “While it is welcome that Boyle will avoid jail,” declared Keiran Pender, the HRLC’s legal director, “he should never have been prosecuted, and his case clearly demonstrates how our laws are failing to protect people who bravely speak up.”
On August 28, one of the lengthiest sagas in Australian whistleblowing history reached its terminus with a sentence of 12 months’ good behaviour, with no recorded conviction. Boyle’s moral constitution, in the end, impressed Judge Kudelka. “I find that you engaged in this criminal conduct because you genuinely believed at the time that what you were doing was justified for the greater good.” She also conceded that making such disclosures was “not an easy, simple or straightforward thing or an individual to do”. But no one was left in any doubt that her leniency be perceived as an incentive for adventurous public disclosures: “the message today needs to be clear that whistleblowing is not a green light for an individual to commit crimes in the name of what they believe is for the greater good.”
In the absence of a judiciary reluctant to broaden the limiting provisions of the current public disclosure system, legislation through parliament is the only recourse. Currently under review is the Whistleblower Protection Authority Bill 2025 (No. 2). The bill is currently before the Senate Legal and Constitutional Affairs Legislation Committee, comprising 10 design principles with an essential overarching purpose: that any such new authority ensures that “whistleblowers are left no worse off for raising concerns about wrongdoing — internally in their agencies or organisations, to regulatory bodies, or, if necessary, to the public.”
But till the issue of how one reconciles credible whistleblowing with exonerating the necessary steps, albeit illegal, that need to be taken to achieve that goal, the Boyle dilemma will continue to haunt and deter those willing to expose wrongdoing. The powers that be will certainly prefer it that way.
