Lunch with a whistleblower: how laws ‘lure’ public servants into disclosing

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You’ve probably heard of Richard Boyle.

He’s the former ATO staffer currently facing 161 years in prison because of his decision to disclose what he alleges are serious abuses of power within the ATO.

On Tuesday, Boyle sat down with senator Rex Patrick and journalist Adele Ferguson to discuss whistleblower protection over lunch. He had to get permission from the court to travel interstate to attend.

Rex Patrick said whistleblowers “must be protected” so they can deter misconduct in both the public and private sector.

“Right now we have whistleblower laws in the public sector that lure people into thinking they can make a disclosure only to find that there’s no real protection. And that in some sense is worse than having no whistleblower protection at all,” he told the forum.

“Providing a bounty to whistleblowers is not about making whistleblowers rich, it’s about making sure that every CEO, every secretary of department knows that there are people who are financially motivated to call out misconduct. And that stops it happening in the first place.”

The event was hosted by the Melbourne Press Club and was moderated by ABC News Breakfast’s Michael Rowland, who lightheartedly advised everyone to “stay calm” in the instance of the forum being raided.

The room quickly turned sombre as Boyle told his story.

“As you can imagine being a public servant, whether you’re a teacher or a nurse or a doctor or any other public service, you see the cross-section of what happens to people,” he said.

“What I exposed, it was really important for me to tell the truth.”

Boyle alleges he was told by the ATO to issue indebted taxpayers with garnishees — a tactic wherein the tax office orders a bank to hand over money from the taxpayer’s account without consultation — in June 2017.

“I think I was rightly horrified and astounded at the audacity of that directive,” he said.

Boyle alleges the ATO offered him a payout to stay quiet and leave his job in February. He says he declined and went to the media instead.

“I was offered tens of thousands of taxpayers’ money that I wasn’t entitled to, to remain silent…that really didn’t wash with me,” he alleges.

Boyle said it was a hard decision to make, especially since he was engaged to his now wife Louise at the time.

“Last year was an absolutely shocking year. It’s been hard for Louise to watch me go through a real decline in health,” he said.

“Sometimes we don’t know how we’re going to pay the rent.”

Louise echoed his despair.

“I’m sort of lost for words right now because it’s been ongoing and there’s no end in sight right now and that’s very hard to take,” she said.

Rex Patrick is determined to increase protection for whistleblowers and “tidy up the public sector”.

He said when people blow the whistle, the issue should be dealt with, rather than the damage falling back on the person who spoke out.

Whistleblowers in the private sector are able to receive direct and indirect (where mental harm is caused) compensation and have the option to disclose anonymously. Patrick wants the same for public servants.

“It’s interesting that had Richard disclosed under those particular conditions (private sector) he’d be in a much, much better position now,” he said.

The Public Interest Disclosure Act must be changed to ensure protection for public sector workers, according to Patrick. He has recently had talks with Minister for Finance Mathias Cormann and Attorney General Christian Porter, with the goal of achieving “at the very least” the same baseline protection for whistleblowers in registered organisations, corporate and public sectors.

“That’s on the agenda,” he said.

“I’m very confident that we will progress towards changing and improving public interest disclosure laws for public servants.”

Boyle said that his experience will likely deter public servants from speaking out, but he looks forward to seeing what Patrick will achieve in his goal to strengthen protection laws.

As a junior employee “doing community work on the coalface, seeking to do what was right for the community,” Boyle alleges, he was not completely aware of the existing protection laws when he made the disclosure which he is now being punished for.

Patrick calls for free-speech referendum

Senator Patrick hopes to find how and why the decision to prosecute Boyle was made. 

“We need to find out what happened in Richard’s case when they processed his public interest disclosure. I’m expecting a little bit of resistance from the tax office but ultimately the Senate has the power to demand the documents, from an oversight perspective,” he said.

“The Attorney General does have the power to stop a prosecution if it is not in the public interest.

“No government can seriously say that they are interested in protecting whistleblowers and then let this prosecution stand.”

Patrick emphasised that he is not saying Boyle is guilty or not guilty, rather that the decision to prosecute is wrong.

“It just does not seem rational, sensible in any way shape or form to prosecute someone who blew the whistle on misconduct that no one doubts was occurring.”

The panel also discussed the “archaic” laws which puts pressure on journalists and prevents them from freely doing their job while protecting their sources.

“If we don’t have press freedom we don’t have a democracy,” Patrick said.

Patrick plans to table a bill in parliament next week proposing a referendum to the constitution that introduces a first amendment-style provision for freedom of expression and freedom of the press.