South Australian Court of Appeal rules whistleblowers have no immunity for gathering evidence to support public interest disclosures
Boyle v Director of Public Prosecutions (Cth) [2024] SASCA 73
Summary
In the much publicised case of Australian Tax Office (ATO) whistleblower Richard Boyle, the South Australian Court of Appeal has found that the Public Interest Disclosure Act 2013 (Cth) (the Act) does not provide whistleblowers with immunity from criminal, civil or administrative liability for actions taken in gathering evidence to support public interest disclosures (PID).
Facts
Boyle was employed by the ATO as a debt collection officer. He became disgruntled with what he perceived to be an aggressive ATO policy being "inappropriately and indiscriminately" applied to taxpayers. On 12 October 2017, Boyle lodged a PID with the ATO that complied with the requirements of the Act and which attracted immunity from criminal prosecution. Unfortunately, Boyle's PID was not dealt with appropriately by the authorised recipient to whom it was allocated. Specifically, the authorised recipient incorrectly determined that the disclosed information did not concern serious disclosable conduct and discontinued the investigation.
Notwithstanding that Boyle attracted immunity for lodging the PID, the Director of Public Prosecutions (DPP) brought criminal charges against Boyle for his conduct in unlawfully gathering evidence to support his disclosure. This included taking photographs of taxpayer information and covertly recording conversations with ATO colleagues. Boyle contended that he also had immunity under the Act against criminal prosecution for these actions yet at first instance, the Court found in favour of the DPP.
The central issue before the Court of Appeal was whether preparatory steps taken to support a PID (eg, gathering evidence) were protected under the Act. The Court dismissed Boyle's appeal, finding that the gathering of evidence in the process of making a PID was not protected by immunity.
Decision
Section 10 of the Act provides that if an individual makes a PID, "the individual is not subject to any civil, criminal or administrative liability (including disciplinary action) for making the [PID]". Three competing interpretations of the word "making" were put to the Court of Appeal:
Boyle's interpretation: "making" refers to the process of making the PID rather than merely the act of the filing the PID, and that "anterior acts that reasonably form part of the process leading to the creation of the PID should attract the immunity" (at [44], [46]).
The Human Rights Law Centre (HRLC) interpretation: as amicus curiae, the HRLC contended for a similar but slightly narrower construction than Boyle's interpretation, namely: "making" includes anterior acts, but only where those acts are sufficiently connected to the disclosure and are reasonably necessary for the making of a valid disclosure (at [56]).
The DPP's interpretation: "making" does not include anterior acts of the person gathering evidence to support a disclosure. If Parliament had intended to provide protection to someone making a PID to investigate and gather evidence illegally it would have clearly said so (at [70]).
The Court of Appeal found that the meaning of "making" depends on context. The context in this case, being the language of the relevant provisions and the structure of the Act, showed a clear separation between (a) the act of disclosing information and (b) the function of investigating matters arising from the disclosure. The Court of Appeal found this supported the DPP's interpretation of "making" as "the act of doing something, not constructing something". The immunity in section 10 of the Act therefore only applied to Boyle's disclosing of the PID, not the evidence gathering he undertook to support the PID (at [85]-[86]).
Doyle JA made further observations about the Act:
The Act provides for the investigation to be conducted by the principal officer, rather than by the person making the disclosure (at [238]).
Further, the Act only requires a whistleblower to believe "on reasonable grounds that the information tends to show" disclosable conduct (at [246], [250]).
These features of the Act support of the Court's limited interpretation of the immunity: they demonstrate there is no requirement for a whistleblower to gather evidence in support of their PID. Therefore, evidence gathering is not afforded the same protection as the PID itself.
Commentary
Boyle's case is the first to consider the scope of protections for Australian whistleblowers. The judgment confirms the narrow scope of the immunity provided by the Act. In August, Boyle announced he had filed an application seeking special leave to appeal to the High Court.
The decision has particular significance for potential whistleblowers working in areas governed by secrecy regimes. On this point, in November 2023 the Attorney-General's Department released its final report on its Review of Secrecy Provisions which identified 875 secrecy provisions in Commonwealth laws.
The HRLC submitted to the Court of Appeal that the prosecution of Boyle would have a "chilling effect" on other potential whistleblowers. Boyle's criminal trial has been vacated whilst we await the outcome of his bid to have his case heard by Australia's highest court.
Separately, the Australian Government conducted a public consultation on the second stage of public sector whistleblowing reforms, which concluded on 22 December 2023. One of the issues for consideration was "[c]larifying the scope of 'preparatory acts' taken by a public sector whistleblower that are covered by immunity" under the Act, and expanding the circumstances in which external disclosures are protected under the Act was a key issue raised by stakeholders.
Another key issue raised was better access to remedies particularly in relation to any failures by an agency to fulfil its duty to protect whistleblowers from reprisal. As noted above, it was accepted by the Court of Appeal that Boyle's PID was not dealt with appropriately by the authorised recipient allocated the investigation. It is yet to be seen what further reforms to Australia's whistleblowing regime come out of this inquiry, including available recourse when PIDs are mishandled by agencies and their officers.
This summary was prepared by Jessica Flatters (Associate) and Andrew Bisset (Senior Associate) at Allens.
The Human Rights Law Centre participated in this case as a friend of the court.