27-05-2025
Whistleblower protections failed 'superhero' Richard Boyle, calls grow for urgent reforms
Richard Boyle has faced the heavy price of being a whistleblower in Australia.
The law suggests that if you blow the whistle on wrongdoing, you will be protected.
But, in Boyle's case, it didn't protect him.
Nor did the federal government, which could have, at any stage, requested the Commonwealth Director of Public Prosecutions (CDPP) drop all the charges against Boyle.
More than eight years after the former ATO debt collector internally spoke out about the ATO's heavy-handed debt recovery practices, Boyle has stopped fighting for justice.
His decision to reveal unethical practices at the Australian Taxation Office (ATO) — while helping the lives of many taxpayers — ultimately destroyed his, and his wife Louise Beaston's lives.
"I personally am broken, physically, mentally, and financially", Boyle said, in a recent public address at the 2024 Walkley Awards.
He talked of how he and Louise should have "been starting a family, buying a house, settling into the routines of life together", but instead were, "completely and utterly broken".
On Tuesday, Boyle pleaded guilty to four charges of disclosing protected information, making a record of protected information, using a listening device to record private conversations and recording another person's tax file number.
The 49-year-old struck a plea deal under which Senator Rex Patrick — who has long been fighting on behalf of Boyle for the charges against him to be dropped — said Boyle would avoid jail.
While many of the original 66 charges against Boyle were withdrawn by the CDPP before the case went to trial, it highlights that being a whistleblower in Australia isn't appreciated.
Boyle may have avoided 161 prison years, which was the potential penalty he could theoretically have faced under the initial very long list of charges, but the question still begs, why even prosecute a whistleblower?
Legal experts and human rights groups say the re-elected Albanese government must now urgently reform both public and private sector whistleblower laws and establish an independent Whistleblower Protection Authority to give support to, and better protect, those who blow the whistle.
It's worth noting that this is not the first time that people blowing the whistle on the ATO have claimed they have faced a lack of protections.
In 2012, when there were virtually no whistleblower protections in place for public servants, Ron Shamir uncovered how the ATO was wrongly tagging some claims as fraudulent. He lost his job.
The former senior ATO insider, who was sacked by the ATO in mid-2015 for non-performance (he took his case to the Fair Work Commission, winning initially but losing on appeal) told a federal inquiry that the body that promised to protect him failed.
In 2012, the agency was also accused by others of abusing its power and wasting taxpayers' money on court cases designed simply to chase revenue rather than enforce the law.
Boyle's case was the first test case of the Public Interest Disclosure (PID) Act introduced a year later.
This act is supposed to promote "the integrity and accountability of the Commonwealth public sector by creating a framework for facilitating the reporting of suspected wrongdoing and ensuring timely and effective investigation of reports".
Boyle first made a public interest disclosure within the ATO, internally, revealing the agency's heavy-handed tactics.
In mid-2017, while working as a debt recovery officer at the ATO's Adelaide office, he shared how agency staff across the country were instructed to take money out of people's bank accounts — regardless of whether the debts raised against them by the ATO were justified or not — thereby unjustly targeting many small to medium size businesses.
Boyle then made a complaint to the Tax Ombudsman before going public with his revelations in a joint Four Corners-Fairfax Media (now Nine) investigation.
Follow-up reviews confirmed that Boyle's revelations of aggressive debt-recovery practices at the ATO at the time were valid, with the small business ombudsman at the time saying the agency's then treatment of small businesses was "crippling".
And a parliamentary report later also found that the ATO's investigation into Boyle's public interest disclosure was 'superficial'.
Boyle's home was raided after he spoke out publicly, and he's spent almost a decade trying to claim protection under public interest disclosure laws.
The Albanese government is currently reviewing both public and private sector whistleblower laws, and many hope that changes will close existing loopholes that have failed to protect Boyle and other whistleblowers.
Senator Rex Patrick says it was accepted that Boyle's disclosure was not dealt with properly by the ATO and that the agency "botched the investigation into his claims" and did nothing until their inappropriate activity was aired as part of the joint Fairfax-Four Corners investigation.
He says the ATO charged Boyle, not for blowing the whistle, but for what he did in preparing his disclosure — namely using his mobile phone to take photographs of taxpayer information, covertly recording conversations with ATO colleagues; and uploading photographs of taxpayer information to his lawyer's encrypted email account.
Patrick says the Court of Appeal found that those preparatory acts were not covered by protections in the Public Interest Disclosure Act and as such, he was not immune from prosecution.
"Section 6 of the Public Interest Disclosure Act lists four objectives that seek to protect and encourage whistleblowers," Patrick said.
Kieran Pender, associate legal director at the Human Rights Law Centre says, "while it is welcome that Boyle will avoid jail, he should never have been prosecuted".
He says the fact that the Court of Appeal in Richard Boyle's case found that whistleblower protections don't apply to conduct before the blowing of the whistle, was a "very narrow approach".
"It means in cases like this when people record conversations and so on for blowing the whistle, there's no protection for that," Pender said.
AJ Brown, a professor of public policy and law at Griffith University and a board member of Transparency International Australia, says the prosecution against Boyle was a waste of taxpayers' time and money.
The former Tax Commissioner Chris Jordan in 2019 used parliamentary privilege to hit back at what he labelled "sensational" media reporting and said the ATO took "whistleblowing very seriously".
Brown said the ATO did not adequately respond to Boyle's disclosure about maladministration.
Brown says reasonable actions by whistleblowers to secure information to protect themselves against reprisal should attract the protections and immunity but in Boyle's case hasn't because of a "loophole that the ATO exploited".
"In this case, there were technical breaches of secrecy laws to secure the information used to then blow the whistle, but they have been legally able to treat it as separate to his whistleblowing," he said.
One of the other ways to ensure that whistleblowers aren't prosecuted is for the Albanese government to set up an independent national body that is tasked with hearing their complaints and protecting them.
Earlier this year the Whistleblower Protection Authority Bill was proposed and introduced by Andrew Wilkie, Helen Haines, Senator David Pocock and Senator Jacqui Lambie.
It seeks to do what lawyers and human rights groups have long been calling for — establish a federal body with the power to oversee and enforce whistleblower protections, facilitate whistleblower disclosures, and safeguard whistleblowers from inside government or business who expose corruption and wrongdoing.
Pender says such an authority — which many other countries have set up — would ensure that people like Boyle, who speak up for others, are properly protected and supported.
"It's been 31 years since a parliamentary inquiry recommended a whistleblower protection authority in Australia and we're still waiting for one," he said.
Senator Rex Patrick notes that while the prosecution has not sought a custodial sentence, a penalty has not yet been imposed.
Submissions will be made in August, when the case returns to court, with a sentencing outcome expected soon thereafter.
Patrick thinks it is unlikely the court will seek a jail term in circumstances where the prosecutor doesn't also seek that outcome.
But he says Boyle does still run the risk of having a conviction recorded against his name, which will be a "chain around his neck every time he seeks to apply for a job".
"We need more people like Richard in Australia."
