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‘A-G must intervene on whistleblower defence hearing’
The first-ever whistleblower defence hearing began this week, and the Human Rights Law Centre (HRLC) has responded, calling on Attorney-General Mark Dreyfus KC to discontinue the “unjust prosecution” and stating the need to establish a whistleblower protection authority.
Jess Feyder
The defence hearing of tax office whistleblower Richard Boyle began on 4 October in Adelaide.
Despite Mr Boyle’s truth-telling being vindicated during reviews by the inspector-general, small business and family enterprise ombudsman, and a Senate inquiry, he was charged in 2019 with a range of offences relating to his whistleblowing — he has pleaded not guilty.
The first part of the case expects Mr Boyle to use a defence under federal whistleblowing law, the Public Interest Disclosure Act.
Mr Boyle is expected to argue that his actions, in blowing the whistle to expose misconduct to the media, were consistent with the PID Act, meaning he is therefore immune from prosecution.
It will be the first time the provision has been tested in a criminal case. The case was due to begin in July but was delayed due to COVID-19.
The case is being heard in the District Court of South Australia. If Mr Boyle is unsuccessful, he is scheduled to go on trial before a jury next October.
It is understood that there are several technical legal points to be argued in the days ahead, which may lead to further delays in the case.
Kieran Pender, senior lawyer at the HRLC, said that whistleblowers should be protected, not punished.
“There is no public interest in this prosecution going ahead,” he said. “Richard Boyle did the right thing — he spoke up about wrongdoing taking place within a powerful government agency.
“Boyle has been vindicated by three independent inquiries, which collectively found that the ATO had misused its debt recovery powers, and that the ATO’s internal investigation of Boyle’s whistleblowing was superficial.
“Yet he finds himself on trial for telling the truth.”
In July, the A-G intervened to discontinue the prosecution of Bernard Collaery, using powers available under the Judiciary Act.
“Like the Collaery case, the prosecution of Richard Boyle is unjust and will have a chilling effect on prospective whistleblowers.
“This case warrants the Attorney-General’s intervention to end it,” said Mr Pender.
The HRLC is urging the Albanese government to reform the PID Act and establish a whistleblower protection authority to provide stronger protections for Australian whistleblowers.
The Boyle case, and the prosecution of David McBride, who blew the whistle on alleged war crimes in Afghanistan, underscore shortcomings in the legislation and the lack of practical support for whistleblowers, the HRLC said in a statement.
“The fact that two Australian whistleblowers are on trial for speaking up about wrongdoing in government, and a third was only saved by the Attorney-General’s intervention, shows that whistleblowing laws are failing,” said Mr Pender.
“The Albanese government must prioritise stronger laws and the establishment of a whistleblower protection authority to ensure Australian whistleblowers are protected and empowered.
“Whistleblowers make Australia a better place.”
