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ATO whistleblower Richard Boyle (Image: AAP/Kelly Barnes)

Last year, ATO debt collection officer Richard Boyle made an extraordinary series of disclosures to the ABC, The Sydney Morning Herald and The Age detailing allegations of deeply unethical business practices and a toxic work culture inside the Australian Taxation Office. While that investigation led to changes within the ATO, it turned Boyle’s life upside down — his house was raided by the Australian Federal Police, and he now faces 66 charges and a prospective 161-year jail sentence. 

Attorney-General Christian Porter has so far resisted calls to intervene and advise the Commonwealth Director of Public Prosecutions to drop the charges. Boyle’s prosecution comes just months after the Morrison government passed a significant series of protections for corporate whistleblowers, but he is largely not protected by these laws. 

What were the recent reforms?

The Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2018, which passed in February this year, brought in significant reforms to whistleblower laws that came after a decade of trying.

In 2009 Labor’s Chris Bowen proposed a review into corporate whistleblower protections, but the reform was eventually tossed in the “too hard” basket amid the Rudd-Gillard-Rudd government’s 2013 self-immolation. Then in 2017, then-financial services minister Kelly O’Dwyer helped get support for reform.

The changes expanded the range of people eligible to make disclosures and the kinds of matters they can make disclosures about. This included corporate corruption, bribery and fraud. The bill included a requirement that all public and large proprietary companies develop a whistleblower policy. It also harmonised the previous regime, which had been a patchwork of different provisions scattered across various pieces of legislation, by bringing whistleblower protection substantially within the scope of the Corporations Act.

Why isn’t Boyle protected?

The government’s recent changes were too little too late for Boyle. Firstly, they came into effect after he’d been subject to AFP raids, and been charged — a process that Boyle says took a severe toll on his physical and mental health.

But the new laws also likely exclude disclosures like Boyle’s. While protections were made for emergency or public interest disclosures which have been made to journalists, tax matters are excluded from protection under these sections. Further, while the new laws inserted whistleblower amendments into the Taxation Administration Act, these changes do not extend protection for disclosures to a journalist.

Meanwhile the Public Interest Disclosure Act, which governs disclosures like the kind Boyle made, does not create express protections for providing information to a journalist.

The secrecy state

The prosecution of Boyle is just the latest example of Australia’s long war on information. As was the case across many Western countries, Australia’s expansion of secrecy laws was triggered by post-9/11 fears about the spectre of terrorism. But Australia has gone harder than most, and since 2001 we’ve enacted more than 50 anti-terror laws — a number that experts say would have been “unthinkable” prior to 9/11.

While the Coalition government was developing whistleblower protection reforms, it also passed sweeping national security and espionage laws — aimed at stifling Chinese influence in Australia — which expanded the definition of “national security” and established potential jail terms of up to 10 years for journalists for dealing with sensitive information related to it.

In 2015, Peter Dutton introduced changes to the Border Force Act which would have subjected doctors and other people working in offshore detention centres to up to two years in prison for making disclosures about conditions in the camps. The Home Affairs Minister only backed down after the threat of a High Court challenge. Still, Australia’s offshore processing regime is subject to considerable sensitivity, and journalists investigating detention centres have previously been investigated by the AFP over disclosures that were potentially unauthorised under the Crimes Act.

The Commonwealth’s decision to prosecute Boyle is also nothing new. Currently, the Commonwealth is bringing highly secret and protracted criminal proceedings against Witness K, the intelligence official who disclosed Australia’s bugging of Timor-Leste’s embassy, along with his lawyer Bernard Collaery.

Meanwhile, UN official Nick Melzer accused the Australian government of complicity in the psychological torture of WikiLeaks founder and controversional whistleblower Julian Assange. Assange, an Australian citizen, is currently facing extradition to the United States over leaking government material.

Boyle’s case is increasingly looking a reversion to the norm in Australia; another chapter in the government’s steady expansion of the security state.

Richard Boyle will be speaking to 7.30 tonight, and is due to face court this week.

Peter Fray

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