Richard Boyle is preparing to appeal a landmark ruling denying him protection as a whistleblower, a move described as significant “for all current and future whistleblowers.”
The South Australian district court this week ruled that Boyle could not be protected for allegedly unlawful acts committed while gathering evidence to back up his disclosures about the Australian Taxation Office’s unethical and aggressive pursuit of debts.
The decision, the first real test of Australia’s whistleblowing laws, prompted urgent calls for reform and a warning that Boyle’s case exposed significant gaps in the public interest disclosure act (PID Act).
Guardian Australia understands Boyle and his legal team are now preparing to appeal against the ruling in the South Australian courts. The appeal is yet to be lodged.
Kieran Pender, a Human Rights Law Centre senior lawyer said the planned appeal would have important consequences for all whistleblowers and said Monday’s decision threatened to undermine protections for those speaking out about “human rights violations, government wrongdoing and corporate misdeeds”.
“The appeal will require the appeal court to confront the hole this judgment has left in whistleblower protection laws,” he said.
“It shouldn’t fall on the shoulders of a lone whistleblower to uphold protections available to Australians. The attorney general, Mark Dreyfus KC, should drop the case and fix the law, so all Australians have confidence to speak up about wrongdoing.”
If Boyle’s appeal is unsuccessful, it could leave him facing criminal trial for 24 offences, including the alleged use of his mobile phone to take photographs of taxpayer information and covertly record conversations with colleagues. Boyle has pleaded not guilty to all charges.
The details of the ruling against Boyle were released on Thursday, after the partial lifting of a temporary suppression. Guardian Australia, represented by barrister Michelle Hamlyn, sought to intervene to argue against a complete suppression of the court’s reasons, given the case’s importance in testing whistleblowing laws.
The judgment showed that Boyle’s argument was that whistleblower protections should apply to alleged conduct in the lead-up to his disclosures about the ATO, which were made internally at first, and then externally to the taxation watchdog and the ABC and Fairfax.
The PID Act is designed to both encourage whistleblowers to come forward and ensure their disclosures are properly investigated. But Boyle’s legal team argued that if whistleblowers were not protected for acts done in preparation, it would both discourage them from coming forward and compromise the ability of authorities to properly investigate.
But the district court judge, Liesl Kudelka, said the laws were silent on whether whistleblowers ought to be protected for anything they did while investigating a matter or collecting evidence.
“The PID Act does not expressly prohibit or endorse the recording of information by a public official to help formulate a public interest disclosure,” the court found. “The PID Act is silent on this aspect.
“The PID Act does not expressly prohibit or endorse the collection of evidence by a public official to support the information contained in their public interest disclosure.”
Boyle and his legal team had argued that the court should apply a reasonableness test to a whistleblower’s conduct while preparing to blow the whistle. They argued that if allegedly unlawful acts conducted while gathering evidence were reasonable when compared against the matters at the heart of a whistleblower’s disclosure, then he or she should be protected.
Kudelka said parliament and the law did not contemplate such a test.
“The silence of the legislature regarding the limits of the criminal conduct and the test proposed by the applicant gives public officials no certainty and little guidance,” she said.
She said the PID Act did not give whistleblowers any investigative role and that Boyle’s arguments would effectively sanction a form of a “vigilante justice”, allowing unlawful acts to be committed by public officials.
“One difficulty with imputing such an intention is that such unlawful conduct may range from minor to egregious.”
