A hearing into the case of the tax office whistleblower Richard Boyle, the first test of legislation intended to protect people who disclose improper conduct by public institutions, has been adjourned after the judge asked parties to “have a crack” at establishing a set of agreed facts.
The hearing, which started on Tuesday in South Australia’s district court, is to determine whether Boyle is protected by the Public Interest Disclosure Act (the PID).
If the PID does not protect him, he will go to trial and face potential jail time. That, in turn, will likely fuel concerns that the protections are inadequate and that they will risk a “chilling effect” on other public servants who wish to expose wrongdoing.
The hearing is expected to run for 20 days.
Boyle is facing 24 charges, including for using a listening device for private conversations, disclosing protected information and recording someone’s tax file number. He has already spent four years with the trial and possibility of imprisonment hanging over his head.
Boyle is arguing for immunity under the PID, after he revealed that the Australian Tax Office was using heavy-handed tactics to collect taxpayer debt.
The question is whether acts themselves – recording phone calls and other information – can be considered immune if they were done with the intention of whistleblowing, which in turn could be protected under the PID.
Lawyers for both sides argued the court should make a ruling in advance about whether the acts leading up to the “actual disclosure” should all be considered.
The hearing was adjourned until Wednesday after the judge, Liesl Kudelka, asked lawyers to prepare a comprehensive guide to the facts of the case.
Kudelka said she was “having difficulty comprehending the joint approach” and called it an “extraordinary submission”. She asked both sides to take a day to assemble the facts of the charges.
She said she was “very reluctant” to make a legal decision without all the facts.
The lawyers argued they needed a ruling in order to understand the relevance of any evidence and how to cross-examine witnesses.
Kudelka said she disagreed. “I’ll wait to see how comprehensive or otherwise your facts are,” she said, saying they could “have a crack”.
“[But] do not proceed on the basis that I’m going to necessarily accept that process,” she said.
The Human Rights Law Centre has called for the attorney general, Mark Dreyfus, to intervene and stop the prosecution.
“The uncertainties and ongoing delays in Richard Boyle’s whistleblowing defence highlight once again that federal whistleblower protection laws are not working and need to be urgently repaired,” Kieran Pender, a senior lawyer at the ARLC, said.
“There is no public interest in this prosecution - the attorney generalshould use his powers to end this case and get on with fixing whistleblowing law so that brave Australians like Boyle are protected, not punished.”
The federal government is considering broader whistleblower protection reforms, including within the proposed national anti-corruption commission. Dreyfus’s office declined to comment while Boyle’s case is under way.
In July, Dreyfus dropped a prosecution against Witness K’s lawyer, Bernard Collaery, for allegedly helping to reveal spying on Timor-Leste. He has since said such ministerial powers should only be used in “very unusual and exceptional circumstances”.
