A South Australian court ruling that Australia's public interest immunity laws do not allow whistleblowers to conduct "their own investigation" or collect evidence of discreditable conduct, has an expert expressing alarm.
Former Australian Taxation Office (ATO) tax officer, Richard Boyle, recently lost his legal bid to be declared immune from prosecution as a whistleblower, meaning he could face the prospect of life in prison if convicted.
Mr Boyle's lawyers, Steven Millsteed KC, and junior counsel Lauren Gavranich, said they are considering an appeal.
The 62-page judgement dismissing Mr Boyle's application for immunity from prosecution on 23 charges was subject to an interim suppression order, but the ABC can now publish some of its contents after the court on Thursday relaxed the scope of the order to only apply to specific parts of the judgement.
Mr Boyle's criminal trial is scheduled to start in South Australia's District Court in October.
Mr Boyle, 46, argued Australia's whistleblowing laws should protect him for any alleged acts conducted while he collected evidence and investigated the ATO's pursuit of debts, prior to making the public interest disclosure.
Mr Boyle is accused of 24 offences — including recording and disclosing protected information — stemming from his disclosure of information about unethical debt-recovery practices within the ATO. He has pleaded not guilty to all charges.
Mr Boyle had worked as a debt collection officer at the ATO's Adelaide office and first raised concerns within the ATO, internally, before then going externally to make a complaint to the tax ombudsman and later went public with his revelations as a part of a joint Fairfax-Four Corners investigation.
A Senate report later found that the ATO did a "superficial" investigation into Mr Boyle's disclosure about the ATO misusing its powers against small businesses.
The unredacted portions of District Court judge Liesl Kudelka's ruling show that in dismissing Mr Boyle's lawyers' claims that his alleged actions were protected by the Public Immunity Disclosure Act (PID Act), her honour determined that the wording of the legislation was more "confined".
"The role of the public official under the PID Act is to disclose information that, in the public interest, should be disclosed… It is an important but confined role," her Honour said in her written judgement.
"It does not support the concept of a public official holding on to information that, in the public interest, should be disclosed whilst conducting their own investigation of that information in order to gather 'evidence' of disclosable conduct which then may, or may not, be disclosed."
Mr Boyle's case is the first major test case of protections available under the Public Interest Disclosure Act (2013).
Judge Kudelka said the legislation did not sanction forms of "vigilante justice" before making a public interest disclosure.
"The Applicant's interpretation of [the legislation] invites a finding that Parliament intended to sanction a public official engaging in some form of 'vigilante justice' prior to making a public interest disclosure," Judge Kudelka said.
"One difficulty with imputing such an intention is that such unlawful conduct may range from minor to egregious."
Outcome 'catastrophic for whistleblowers'
Senior lawyer at the Human Rights Law Centre, Kieran Pender, described the outcome as "catastrophic for Australian whistleblowers".
"It blows a major hole in the protections available to whistleblowers," Mr Pender said.
"The provision at issue in this case is mirrored in every Australian whistleblowing law, which collectively protect 95 per cent of the Australian workforce, across the private sector and federal, state and territory public sectors.
"This will make it harder for Australians to speak up about human rights violations, government wrongdoing and corporate misdeeds."
Mr Pender also argued a narrow interpretation of the protections under the PID Act could deter whistleblowers from coming forward.
"By narrowly interpreting the scope of whistleblower protections as applying only to the act of blowing the whistle and not prior preparatory conduct, this judgment dramatically weakens these protections.
"The EU whistleblowing directive and laws in Britain, France and Ireland all explicitly protect reasonably necessary conduct related to the disclosure — such as accessing or securing relevant information. Australian law should, too.
"This judgment only underscores the need for the Attorney-General Mark Dreyfus KC to urgently fix the law."
Does the end justify the means?
One of the charges against Mr Boyle is that he used a listening device to overhear, record, monitor or listen to a private conversation.
Mr Boyle's lawyers had argued that if evidence gathering before a PID is not taken into account, this denies whistleblowers protection for collecting information or evidence relevant to a public interest disclosure, and that it would discourage whistleblower activity.
It would, they argued, defeat another one of the objects of the PID Act which is to encourage and facilitate the making of public interest disclosures by public officials.
Mr Boyle's lawyers had also argued that whistleblowers would be discouraged from giving information or producing documents during an investigation for fear of prosecution for allegedly unlawfully obtaining the information and documents.
The judge noted that "It is understandable that a public official may feel that they may not be believed if they do not have 'evidence' to 'back up' what they are disclosing".
"Mr Boyle expressed that sentiment on multiple occasions during his evidence," the judge said.
"Over time he formed the belief that the ATO would not investigate his allegations."
She said that "Mr Boyle may have been justified in his belief, however, it does not follow that s 10(1)(a) (of the PID Act) should be construed to protect public officials in the performance of an investigative role which the PID Act does not contemplate they undertake".
Judge Kudelka said that while "on one level" Mr Boyle's legal argument may be seen to encourage whistleblowers, she said that "on another level" it would give public officials a "false sense of security".
"The test proposed by the Applicant is that public officials are only protected for criminal conduct that reasonably forms part of the process of making a public interest disclosure; the seriousness of the allegation must be weighed with the relative gravity of conduct and an objective test of reasonableness must be applied," Judge Kudelka said.
"The silence of the legislature regarding the limits of the criminal conduct and the test proposed by the Applicant gives public officials no certainty and little guidance. The reality is that the construction is cold comfort, which may have the effect of discouraging, rather than encouraging, the making of disclosures.
"Further, the endorsement of some level of criminal conduct by a public official to investigate what may be disclosable conduct may discourage the timely disclosure of information that, in the public interest, should be disclosed. That may in turn undermine the ability of the principal officer to properly investigate a later disclosure."
Judge Kudelka also noted that "The PID Act does not expressly prohibit or endorse the recording of information by a public official to help formulate a public interest disclosure".
"The PID Act is silent on this aspect."
Judge Kudelka added that she agrees with the Respondent's submission that "unlawful investigative acts by a public official may delay or undermine the investigative process intended by the PID Act" before dismissing Mr Boyle's claim for immunity.