ATO whistleblower Richard Boyle looked tired and overwrought when he stood in the Magistrates Court in Adelaide for a hearing into 66 charges that could put him away for 161 years if found guilty.
His legal battle with his former employer, the Australian Taxation Office, has become a lightning rod for all that is wrong with whistleblower protections in this country.
Richard Boyle.Credit: James Elsby
It is an attempt to pressure and criminally punish whistleblowers for the theft of information by one means or another.
Besides facing charges more extensive than most serial killers and mass murderers, Boyle is going up against one of the most powerful institutions in the land. It has deep pockets, while he is forced to rely on legal aid.
If the opening salvo is any indication, the case will drag on.
It has been adjourned until March 29 on the basis the prosecution left it until the day of the hearing to present Doyle with a Prosecution Statement of Facts, which outlines in detail each charge as well as the context of what he is up against.
In the past few years the role of whistleblowers has been publicly lauded in Australia for the service they have provided in exposing wrongdoing, including the biggest case of corporate wage fraud inside convenience store giant 7-Eleven, and misconduct in the banks, which ultimately resulted in a royal commission, along with many more.
As AJ Brown, professor of public policy and law at Griffith University, a leading world authority on whistleblowing, noted in a book he co-authored in 2014, International Handbook on Whistleblowing: “In the modern age of institutions, whistleblowing is now established as one of the most important processes — if not the single most important process — by which governments and corporations are kept accountable to the societies they are meant to serve and service."
The former prime minister, Malcolm Turnbull, acknowledged as much at Westpac’s 199th birthday party when he gave the banks a serve and encouraged more whistleblowers to speak out.
Despite this public support for whistleblowers, which culminated in a parliamentary inquiry and amendments to the legislation, little has changed.
Former prime minister Malcolm Turnbull encouraged whistleblowers to speak out.Credit: Dan Himbrechts
The regime is still confusing and has too many gaps compared with some overseas regimes. In the United States, for example, whistleblowers are financially rewarded.
In Australia, there are no rewards, just years of pain, as the prospect of long-term unemployment looms large and in Boyle’s case the prospect of jail time.
Boyle’s case highlights the need to legislate a public interest defence, to allow any conviction to be suspended or set aside where it can be shown that in committing the offence the whistleblower served the public's interest and not his own.
Boyle lodged a disclosure under the Public Interest Disclosure Act in October 2017, which was dismissed by a senior ATO investigator who read through his allegations about the Adelaide branch debt recovery unit.
"The information you disclosed does not, to any extent, concern serious and disclosable conduct," the tax officer wrote.
It can be argued he played a role in many reforms the ATO is currently undergoing after the media investigation exposed an abuse of power by the organisation against small business and individuals.
Indeed, on the same day Boyle appeared in court, a new Small Business Tax Tribunal appeals body opened for business.
The body is an initiative of the federal government to make life easier for small businesses battling the ATO. Its establishment was sparked by revelations from Boyle and others in the joint media investigation.
ATO Commissioner Chris Jordan.Credit: Dominic Lorrimer
Shortly after going public, Boyle was sacked. He had refused a settlement with the ATO in February because he believed his allegations were too important to be brushed under the carpet.
Days before the media investigation aired, he was raided by the Australian Federal Police and ATO, with his laptop and phone seized.
He was later charged. Almost half the 66 charges outlined in the information and summons sheet relate to telephone tapping and recording of conversations without the consent of all parties. The others relate to making a record of protected information, in some cases passing that information to a third party. The summons sheet lists ATO Commissioner Chris Jordan as the informant, which includes his signature.
For its part the ATO told me on Friday that it wouldn't comment on Boyle's case as it was before the courts but was happy its policies were up to date, having been reviewed in 2017 and there were no plans to change their approach.
Australia is littered with whistleblowers who have taken on enormous risk for no personal gain.
We welcome home our successful sportsmen and women with ticker tape parades and shower them with accolades. But whistleblowers don’t get anywhere near that treatment.
The opposition recently said if it wins government it will strengthen whistleblower protections and introduce a reward system, something that was described by the government as "wacky".
It isn’t wacky, it is something that needs to be addressed – fast.