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The South Australian District Court last year found that Richard Boyle was correct to blow the whistle on the Australian Taxation Office (ATO) for breaching its policy not to dip into small business accounts to extract debts, to bump figures up for the end of financial year.

The Supreme Court  last June, but made certain that despite Boyle’s actions being correct and which led to the practice being ended, his appeal was dismissed.

This means that the Public Interest Disclosure Act 2013 (PID Act), which ostensibly aims to protect public sector whistleblowers, is flawed.

Any reasonable person would conclude that a law that protects those disclosing wrongdoing would also protect them in proving their case. But this is not the case.

Attorney General Mark Dreyfus drafted the PID Act during his first stint as chief lawmaker. In opposition and watching the Coalition pursue a series of high-profile whistleblowers cases in 2021, including Boyle’s, Dreyfus promised to fix his laws if reelected.

But, Dreyfus is refusing to drop the prosecution of the ex-ATO employee, even though the laws have failed Boyle. It remains a mystery as to why Dreyfus wants to punish Boyle in this manner.

Lack of movement at the station

Labor criticised the Coalition government, in October 2021, for not implementing the 2016 Moss report recommendations to reform the PID Act.

Dreyfus said he would undertake the “necessary improvements”, as he was aware that “”.

However, since coming to office, Dreyfus has dragged his feet on providing greater protections to whistleblowers to the point where it seems he has no real intention of helping those seeking to end wrongdoing.

The AG had said he would reform the PID Act in two rounds: preliminary measures to assist in the operations of the National Anti-Corruption Commission (NAAC); and a comprehensive overhaul of the laws that have failed whistleblowers.

�ճ���� were passed in June last year. Then, MPs were singing the praises of the federal watchdog, which operates behind closed doors. However, since it decided not to pursue an inquiry into Robodebt, it has been exposed as .

Last  on the second round of PID Act reforms contemplates extending “immunities to cover preparatory acts”. This is what the SA Supreme Court decided Boyle is not covered for.

The question must be asked why hasn’t Dreyfus intervened in Boyle’s matter if he is contemplating a law that would ultimately see a person in his position absolved of any wrongdoing?

Another question to ponder is will the AG even attempt to overhaul the PID Act?

Catch 22 prosecutions

Boyle lodged his public interest disclosure with the ATO on October 12, 2017.

The agency head was found not to have dealt with it appropriately. And, as the practice continued, Boyle went to the Ombudsman and then to with his revelations in 2018.

 of the PID Act provides that an individual who makes a public interest disclosure “is not subject to any civil, criminal or administrative liability (including disciplinary action) for making the public interest disclosure”.

Yet, the court found that the immunity from criminal liability does protect him in having gone to the ABC and exposed the ATO over its dipping into customer accounts when its own policy did not permit it.

But in terms of the acts he took to prepare his case, Boyle is not protected. Indeed, he is now facing 24 , consisting of fairly minor crimes such as using a mobile phone to take photos of taxpayer information, covertly recording conversations with former colleagues and uploading taxpayer information to his lawyer’s email account, which was deliberately never accessed.

Dreyfus, who in providing criminal immunity in an effort to protect whistleblowers in 2013, did so in such an ambiguous manner that the courts are able to interpret that it doesn’t cover basic preparatory acts in building a case.

While the Attorney General could not have foreseen this when drafting his laws in 2013, he is definitely aware of the conundrum now. 

Dreyfus is asking the public to accept that Boyle did do the right thing. However, because no specific law provides immunity for preparatory acts, Boyle just has to suck it up.

Punished for speaking out

Boyle’s trial was supposed to start on September 2. But his legal team has filed for special leave to appeal to the High Court over the Attorney General’s refusals to extend the PID Act’s criminal immunity to Boyle’s preparatory acts (over which Labor is pursuing him).

Boyle’s trial is now postponed.

The Attorney General could bring Boyle’s case to an end today, as he has the power to do so. Dreyfus did, in 2022, who had assisted his client Witness K in blowing the whistle.

 of the Judiciary Act 1903 provides that the Attorney General can end any prosecution.

When pressed on why he allowed Collaery to walk free but not McBride or Boyle, the power is only for “very unusual and exceptional circumstances”.

Dreyfus has an exceptionally high bar when it comes to “exceptional circumstances”. The fact that his laws have proven so flawed that a man who did the right thing could face the rest of his life in prison is very wrong.

[Paul Gregoire writes for Sydney Criminal Lawyers, where this article was .]