Boyle v Commonwealth Director of Public Prosecutions

[2023] SADC 27

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

BOYLE v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

[2023] SADC 27

Reasons for Decision of her Honour Judge Kudelka  

27 March 2023

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR CLASSES OF ACT - REMEDIAL OR BENEFICIAL ACTS OR PROVISIONS

By Information dated 11 September 2020, criminal proceedings were instituted against the Applicant in the District Court of South Australia in the name, and by the authority, of the Respondent.  Mr Boyle is charged with committing 24 offences between 19 April 2017 and 3 March 2018 when he was employed as a taxation officer at the Australian Taxation Office (ATO).

In the criminal proceedings, the Applicant made a claim (relevant to those proceedings) that, pursuant to section 10(1)(a) of the Public Interest Disclosure Act 2013 (Cth) (PID Act), he is not subject to any criminal liability for counts 1 – 6 and 8 – 24 because he made public interest disclosures on 12 October 2017, 27 February 2018, 28 February 2018 and 3 March 2018.

Pursuant to section 23 of the PID Act, the criminal proceedings were adjourned until his claim is determined in these separate proceedings.

In relation to counts 1 – 6 and 8 – 15, the Applicant is charged with using his mobile phone to take photographs of taxpayer information and to covertly record conversations with colleagues at the ATO between 19 April and 5 September 2017. The Applicant made a public interest disclosure (an internal disclosure) on 12 October 2017. He claims that, pursuant to section 10(1)(a) of the PID Act, he is not subject to any criminal liability for counts 1 – 6 and 8 – 15 because that alleged criminal conduct was reasonably part of the process of the making of his public interest disclosure.

In relation to counts 16 – 24, the Applicant is charged with photographing taxpayer information and uploading photographs of taxpayer information to a ProtonMail server on 27 and 28 February and 3 March 2018. The Applicant submits that he did so on legal advice. The Applicant submits that he made public interest disclosures (legal practitioner disclosures) on those dates and, pursuant to section 10(1)(a) of the PID Act, he is not subject to any criminal liability for counts 16 – 24 because he was making those public interest disclosures when he engaged in that conduct.

Held: The Applicant made a public interest disclosure on 12 October 2017 but the statutory immunity does not extend to protect him from criminal liability for the conduct the subject of counts 1 – 6 and 8 – 15. Even on the Applicant's construction of section 10(1)(a) of the PID Act, his conduct did not reasonably form part of the process of the making of his internal disclosure on 12 October 2017.

In relation to counts 16 – 24, the Applicant did not make legal practitioner disclosures on 27 and 28 February and 3 March 2018. By uploading photographs to the ProtonMail server on the basis agreed upon with his legal practitioner, he did not make any disclosure of information to his legal practitioner on those dates. In the alternative, even if he did make disclosures of information on those dates, they were not made for the purpose of obtaining legal advice, or professional assistance, from his legal practitioner in relation to him having made a public interest disclosure on 12 October 2017. Mr Boyle is not protected by s 10(1)(a) of the PID Act for the conduct the subject of counts 16 – 24.

The Application is dismissed.

Public Interest Disclosure Act 2013 (Cth) s 4, s 6, s 7, s 8, s 10(1)(a), s 23, s 26, s 27, s 28, s 29, s 47, s 48, s 57, s 69; District Court Act 1991 (SA) s 9, s 8(4); Judiciary Act 1903 (Cth) s 68(2), s 79(1); Criminal Code Act 1995 (Cth) s 11.1(1), s 13.3(6); Listening and Surveillance Devices Act 1972 (SA) s 4; Taxation Administration Act 1953 (Cth) s 8WB(1)(a) and s 8WB(1)(c), s 355-25(1)(b)(i) of Schedule 1; Criminal Procedure Act 1921 (SA) s 103(1); Acts Interpretation Act 1901 (Cth) s 15AA, referred to.
SZTAL v Minister for Immigration and Border Protection (2017) 347 ALR 405; Mills v Meeking (1990) 169 CLR 214; Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260; Bull v Attorney-General (NSW) (1913) 17 CLR 370; R v Khazaal (2012) 246 CLR 601; Briginshaw v Briginshaw (1938) 60 CLR 336; Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 365; D'Orta-Ekenaike v Victoria Legal Aid and Anor (2005) 223 CLR 1; Re McComb [1999] 3 VR 485; IW v Perth (1997) 191 CLR 1, applied.

BOYLE v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

[2023] SADC 27

1. Mr Boyle has made an application for a declaration that he is immune from any civil, criminal, or administrative liability for making a public interest disclosure regarding conduct at the Australian Tax Office (ATO) on 12 October 2017. His claim relies upon section 10(1)(a) of the Public Interest Disclosure Act 2013 (Cth) (PID Act) which is in the following terms:

   10 Protection of disclosers

   (1) If an individual makes a public interest disclosure:

   (a) the individual is not subject to any civil, criminal or administrative liability (including disciplinary action) for making the public interest disclosure; and …

2. Mr Boyle is charged with 24 criminal offences on Information dated 11 September 2020 presented to the District Court of South Australia in the name, and by the authority, of the Respondent.[1]  The offending is said to have been committed by Mr Boyle between 19 April 2017 and 3 March 2018 during his employment as a taxation officer at the ATO.

   [1]Section 103(1) of the Criminal Procedure Act 1921 (SA).

3. It is alleged that Mr Boyle used his mobile phone to:

   ·   take photographs of taxpayer information on 19 April, 22 May, and 5 September 2017 (counts 1, 2, 11, 12, 13, 14, 15);[2] and

   ·   covertly record conversations with colleagues at the ATO on 28 July, 24 August, 28 August and 5 September 2017 (counts 3, 4, 5, 6, 8, 9, 10).[3]

   There is no dispute that Mr Boyle made a public interest disclosure on 12 October 2017. Mr Boyle claims that, pursuant to s 10(1)(a) of the PID Act, he is not subject to any criminal liability in relation to those 14 counts because that conduct was reasonably part of the process of the making of his public interest disclosure on 12 October 2017. The Respondent submits that Mr Boyle is not protected by s 10(1)(a) for the conduct the subject of those 14 counts.

   [2]Counts 1, 2, 11, 12 and 15: Make a record of protected information contrary to s 355-25(1)(b)(i) of Schedule 1 of the Taxation Administration Act 1953 (Cth) (TAA).

   Counts 13 and 14: Record another person’s tax file number contrary to s8WB(1)(a) of the TAA.

   [3]Counts 3, 4, 5, 6, 8, 9 and 10: Using a listening device to overhear, record, monitor or listen to a private conversation contrary to s 4 of the Listening and Surveillance Devices Act 1972 (SA).

4. Mr Boyle is also charged with one count of disclosing protected information contrary to s 355-25(1)(b)(ii) of Schedule 1 of the TAA (count 7). It is alleged he disclosed protected taxpayer information during a conversation with his father on 31 August 2017. He does not claim the protection of s 10(a)(a) of the PID Act in relation to that count.

5. Mr Boyle is further charged with nine counts alleging that he:

   ·   used his mobile phone to take a photograph of taxpayer information on 22 February 2018 (count 16)[4]; and

   ·   attempted to disclose taxpayer information to his lawyer on 27 and 28 February and 3 March 2018 (counts 17 – 24) by uploading photographs of that information to a ProtonMail server.[5]

   Mr Boyle claims that he made legal practitioner disclosures on 27 and 28 February and 3 March (being the fourth type of public interest disclosure as defined in s 26 of the PID Act) and pursuant to s 10(1)(a) of the PID Act, he is not subject to any criminal liability for the conduct the subject of those nine counts. The Respondent submits that Mr Boyle did not make legal practitioner disclosures on those dates and is not protected by s 10(1)(a) for the conduct the subject of counts 16 – 24.

   [4]Count 16: Make a record of protective information by a taxation officer, contrary to s 355‑25(1)(b)(i) of Schedule 1 of the Taxation Administration Act 1953 (Cth).

   [5]Counts 17, 18, 19, 22, 23 and 24: Attempt to disclose protected information to another entity contrary to ss 11.1(1) of the Criminal Code (Cth) and 355-25(1)(b)(ii) of Schedule 1 of the TAA.

   Counts 20 and 21: Attempt to divulge or communicate another person’s tax file number to a third person contrary to s 11.1(1) of the Criminal Code (Cth) and s 8WB(1)(c) of the TAA.

6. On 11 September 2020, in the District Court criminal proceedings, Mr Boyle pleaded not guilty to all 24 counts.

   The nature of these proceedings

7. Section 23 of the PID Act addresses the nature of the proceedings when a claim is made for protection pursuant to s 10 of the PID Act:

   23  Claims for protection

   (1)If, in civil or criminal proceedings (the primary proceedings) instituted against an individual in a court, the individual makes a claim (relevant to the proceedings) that, because of section 10, the individual is not subject to any civil, criminal or administrative liability for making a particular public interest disclosure:

   (a)     the individual bears the onus of adducing or pointing to evidence that suggests a reasonable possibility that the claim is made out; and

   (b)     if the individual discharges that onus—the party instituting the primary proceedings against the individual bears the onus of proving that the claim is not made out; and

   (c)     the court must deal with the claim in separate proceedings; and

   (d)     the court must adjourn the primary proceedings until the claim has been dealt with; and

   (e)     none of the following:

   (i)any admission made by the individual in the separate proceedings;

   (ii)any information given by the individual in the separate proceedings;

   (iii)any other evidence adduced by the individual in the separate proceedings;

   is admissible in evidence against the individual except in proceedings in respect of the falsity of the admission, information or evidence; and

   (f)     if the individual or another person gives evidence in the separate proceedings in support of the claim—giving that evidence does not amount to a waiver of privilege for the purposes of the primary proceedings or any other proceedings.

   (2)To avoid doubt, a right under section 126H of the Evidence Act 1995 not to be compelled to give evidence is a privilege for the purposes of paragraph (1)(f) of this section.

8. In the criminal proceedings, Mr Boyle made a claim that because of s 10 of the PID Act, he is not subject to any criminal liability for counts 1 – 6 and 8 – 24. Pursuant to s 23(1)(c), these proceedings are the separate proceedings. Pursuant to s 23(1)(d), the criminal proceedings have been adjourned until this claim has been determined.

9. For the reasons advanced by the Respondent,[6] I find that these proceedings are civil proceedings. The proceedings for this claim, as required by s 23(1)(c) and (d) of the PID Act, are separate from, and anterior to, the determination of the criminal proceedings. The jurisdiction to conduct the criminal proceedings is conferred by s 9 of the District Court Act 1991 (SA) (regarding the State charges) and by s 68(2) of the Judiciary Act 1903 (Cth) (regarding the Federal charges). No aspect of the criminal jurisdiction conferred by s 68(2) could be construed to include the jurisdiction conferred by s 23(1)(c) of the PID Act. The power of this court to conduct a s 23(1)(c) proceeding is not a ‘criminal jurisdiction conferred by statute’ for the purpose of s 9(4) of the District Court Act because it is not conferred by Part X of the Judiciary Act. Rather, it is a ‘civil jurisdiction conferred by statute’ for the purpose of s 8(4) of the District Court Act. The investment of federal jurisdiction in a state court is authorised by ss 71 and 77(ii) of the Constitution and s 79(1) of the Judiciary Act.

   [6]Written submissions of Respondent dated 20 July 2022.

   The onus and standard of proof

10. The parties agree that s 23(1)(a) of the PID Act imposes an evidential onus on the Applicant.[7] The description of the onus in s 23(1)(a) is akin to the definition of ‘evidential burden’ in s 13.3(6) of the Criminal Code Act 1995 (Cth). It is to be determined by taking the evidence at its most favourable to the claimant.[8]

    [7]Written submissions of Applicant dated 25 August 2022, [68]; Written submissions of Respondent dated 20 July 2022, [19].

    [8]Written submissions of the Applicant dated 25 August 2022, [69], [70]; Written submissions of Respondent dated 20 July 2022, [21]; R v Khazaal (2012) 246 CLR 601.

11. The Applicant submits that if the evidential onus upon the Applicant is discharged, the legal or persuasive onus cast upon the Respondent by s 23(1)(b) should be construed as requiring proof beyond reasonable doubt.[9]  The Applicant submits that is the case regardless of whether the primary proceedings are civil or criminal in nature because of the protective purpose of the PID Act.  Alternatively, the standard of proof required is to be determined by the nature of the primary proceedings.

    [9]Written submissions of Applicant dated 25 August 2022, [71].

12. I do not consider that there is any basis for construing the onus cast by s 23(1)(b) as being related to or dependent upon the nature of the primary proceedings. These proceedings are separate and anterior to the primary proceedings. I have found that these are civil proceedings. The standard of proof which ordinarily applies is proof on the balance of probabilities.[10]

    [10]Written submissions of Respondent dated 20 July 2022, [22], citing Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 119 ALR 449. See also Briginshaw v Briginshaw (1938) 60 CLR 336 regarding the strength of evidence that may be required in civil proceedings.

    The nature of the evidence

13. In these separate proceedings, Mr Boyle tendered two affidavits,[11] his reply,[12] emails,[13] transcribed conversations[14] and gave evidence. Pursuant to s 23(1)(f) of the PID Act, the giving of evidence in support of his claim does not amount to a waiver of privilege for the purposes of the criminal proceedings or any other proceedings. Pursuant to s 23(e), any admissions made by Mr Boyle, any information given by him, and any other evidence adduced by him in these separate proceedings are not admissible in evidence against him in the criminal proceedings.

    [11]Exhibit A1: Affidavit of Richard David Boyle dated 6 May 2022 and Exhibit A3: Addendum Affidavit of Richard David Boyle dated 2 September 2022.

    [12]Exhibit A2.

    [13]Exhibit A4.

    [14]Exhibit A5.

14. The Respondent tendered a transcript of a conversation between Mr Boyle and his father dated 31 August 2017,[15] an affidavit of Michael Brenton Ewell dated 1 July 2022[16] and an affidavit of Danielle Susan Schultz dated 1 July 2022.[17]  The Respondent called evidence from Mr John Findlay, a legal practitioner who was instructed by Mr Boyle in February 2018.

    [15]Exhibit R6.  This is the subject of count 7.

    [16]Exhibit R7.

    [17]Exhibit R8.

    How the criminal charges and the claim for immunity arose

15. Mr Boyle commenced his employment with the ATO on 3 February 2005.  From July 2012, he was employed as a debt collection officer (DCO) in the Early Intervention Section of the Debt Business Line at the ATO.

16. From November 2015 to January 2016, Mr Boyle was investigated by the Fraud Prevention and Internal Investigations Branch (FPII) of the ATO following allegations that he had engaged in fraudulent behaviour in the course of his work as a DCO.  By January 2016, that investigation was discontinued and the allegations were internally referred for a Code of Conduct investigation.

17. In August 2016, Mr Boyle was found to have breached the Code of Conduct in several respects and, in November 2016, he was sanctioned.

18. From early 2017 to 5 September 2017, Mr Boyle used his mobile phone at work to take photographs of taxpayer information and covertly record conversations with colleagues (counts 1 – 6 and 8 – 15) in order to prepare and gather evidence for a public interest disclosure that he was intending to make.

19. On 6 September 2017, Mr Boyle was advised that he was to be investigated for further breaches of the Code of Conduct and his employment was suspended.  He was escorted from the workplace.

20. On 12 October 2017, Mr Boyle made an internal public interest disclosure by emailing a document that he had prepared to the requisite ATO email address.

21. On 27 October 2017, the relevant principal officer of the ATO determined not to investigate the public interest disclosure. That decision was made pursuant to s 48 of the PID Act.

22. [Paragraph 22 suppressed][18]

    [18][Footnote 18 suppressed].

23. From 27 February 2018 to 3 March 2018, following conversations with his legal representative, Mr Boyle uploaded photographs he had taken of taxpayer information to a ProtonMail server (counts 16 – 24).

24. At 7.40 am on 4 April 2018, the AFP searched Mr Boyle’s home address.  The AFP seized Mr Boyle’s iPhone and documents that had been printed from ATO systems.  The 24 counts which are the subject of the criminal proceedings arise from the examination of Mr Boyle’s iPhone.[19]

    [19]Prosecution Summary of Facts dated 11 August 2020, [8] – [11], [15], as Exhibit DS S4 to Exhibit R8: Affidavit of Danielle Suzanne Schultz dated 1 July 2022 at [5].

25. In May 2018, Mr Boyle’s employment with the ATO was terminated.

26. On 12 June 2018, Acting Director of Fraud Investigations, Mr Andrew Wunsch, emailed Mr Findlay inviting Mr Boyle to participate in an interview in relation to a brief of evidence being submitted to the CDPP.  Mr Boyle declined.

27. On 7 January 2019, an Information and Summons was filed in the Adelaide Magistrates Court charging Mr Boyle with 66 offences, later reduced to 24 charges.[20]  Mr Boyle entered his pleas of not guilty to those charges in the District Court of South Australia on 11 September 2020.

    [20]Exhibit A1: Affidavit of Richard David Boyle, [95]. 

    The issues

28. Separate issues arise in relation to the immunity claimed by Mr Boyle for counts 1 – 6 and 8 – 15 and the immunity claimed for counts 16 – 24.

    The immunity claimed for counts 1 – 6 and 8 – 15

29. In relation to the immunity claimed for counts 1 – 6 and 8 – 15, the Respondent does not contest that on 12 October 2017, Mr Boyle made a ‘public interest disclosure’ (being an internal disclosure as defined in s 26 of the PID Act) when he emailed a document titled ‘Public Interest Disclosure’ comprising 10 chapters to [email protected] (PID).[21]

    [21]Written submissions of Respondent dated 19 October 2022, [11].

30. There is no dispute that, having made a public interest disclosure on 12 October 2017, Mr Boyle is not subject to any civil, criminal or administrative liability ‘for making the public interest disclosure’ (s 10(1)(a) of the PID Act).

31. In these proceedings, Mr Boyle admits that there were 14 occasions prior to 12 October 2017 (counts 1 – 6 and 8 – 15) when he used his mobile phone at work to (i) take photographs of information held by the ATO which included taxpayer information and (ii) covertly record conversations with colleagues.  Mr Boyle concedes that he did not attach the photographs or audio/transcripts to his public interest disclosure, nor did he specifically refer to them.[22]

    [22]Written submissions of Applicant dated 25 August 2022, [53].

1. The issue is whether the immunity under s 10(1)(a) of the PID Act ‘for making the public interest disclosure’ protects Mr Boyle against criminal liability for the conduct which is the subject of counts 1 – 6 and 8 – 15.

2. Mr Boyle submits that at the time he engaged in the conduct the subject of counts 1 – 6 and 8 – 15, he was recording information to formulate the public interest disclosure and to obtain evidence in support of the complaints to be contained therein. He submits that his conduct on each occasion ‘reasonably formed part of the process of him making the public interest disclosure’ which brings that conduct within the immunity from liability given in s 10(1)(a) of the PID Act ‘for making the public interest disclosure’.

3. The Respondent submits that the protection given by s 10(1)(a) of the PID Act is a protection given to a public official in relation to the actual disclosure of information. It does not extend to the alleged criminal conduct which Mr Boyle engaged in to formulate his public interest disclosure or to obtain evidence in support of the complaints to be contained therein.

   The immunity claimed for counts 16 – 24

4. On 22 February 2018, Mr Boyle used his mobile phone to take a photograph of taxpayer information which was in his possession (count 16). On 27 and 28 February and 3 March 2018, he uploaded that photograph and other photographs of taxpayer information which he had previously taken at work. He uploaded the photographs to a ProtonMail server account (counts 17 – 24) and gave evidence that he did so on legal advice from his lawyer, Mr Findlay. He claims that in uploading those photographs, he made legal practitioner disclosures and, pursuant to s 10(1)(a) of the PID Act, he is not subject to any criminal liability for making the legal practitioner disclosure on each of those dates.

5. In relation to the immunity claimed for counts 16 – 24, the issue is whether Mr Boyle meets the precondition for the immunity set out in s 10(1)(a), namely, whether in uploading the photographs, he is an individual who ‘makes’ a public interest disclosure (a legal practitioner disclosure).

6. The Respondent submits that by uploading the photographed information to the ProtonMail server account in February and March 2018, Mr Boyle did not make a disclosure of information to his lawyer, Mr Findlay.  The Respondent relies upon the evidence from Mr Boyle and Mr Findlay that Mr Findlay did not look at the information nor was it intended that he do so.

7. In the alternative, the Respondent submits that even if there was a disclosure, it was not made for the purpose of obtaining legal advice or professional assistance from Mr Findlay in relation to Mr Boyle having made a public interest disclosure on 12 October 2017. In order for a disclosure to be a legal practitioner disclosure, s 26(1)(c) requires the disclosure to have been made for that purpose.

   The public interest disclosure on 12 October 2017

8. At the time he made his public interest disclosure on 12 October 2017, Mr Boyle was employed as a DCO in the Early Intervention Section of the Debt Business Line at the ATO.  To place Mr Boyle’s public interest disclosure in context, it is necessary to summarise Mr Boyle’s evidence concerning aspects of the work of the Debt Business Line.

   Mr Boyle’s evidence about the work of the Debt Business Line

9. The Debt Business Line was one of several operational areas in the ATO responsible for (1) negotiating and collecting outstanding taxes owed to the ATO by taxpayers and (2) processing correspondence (letters and emails) sent to the ATO which was related to the Debt Business Line or otherwise.[23]

   [23]Exhibit A3: Addendum Affidavit of Richard David Boyle, Exhibit 63.

10. Mr Boyle described the debt collection process as ‘largely a semi‑automated, production‑line process’.[24]

    [24]Exhibit A3: Addendum Affidavit of Richard David Boyle, [4].

11. The computer system allocates the work to a DCO as an activity from the Enterprise Queue which is ‘essentially an electronic bucket of work that holds activities’.[25]  An activity is delivered to the relevant DCO when that officer hits the ‘pick next’ button on their computer, receiving the next most urgent activity sitting at the top of the queue.  Once that activity is completed, the taxpayer debt goes back into the pool.  The data inputted by the DCO enables the computer system to keep track of the process and deliver the next activity to a DCO as required.

    [25]T75.

12. The system does not permit a single DCO to ‘case manage’ the taxpayer debt from beginning to end.[26]

    [26]T67.

13. There is also a way in which a DCO, under pressure to increase their ‘stats’, may send a complicated and time-consuming activity back into the pool without starting the activity.[27]

    Phone calls

    [27]T78 – 79.

14. The first step in the debt collection process is generally an outbound phone call to the taxpayer.  DCOs are placed on phone shifts.  The computer system automatically delivers this activity to an officer who then calls the individual taxpayer or representative about the debt to start the debt collection negotiation process.  The DCO is required to give verbal legal warnings about potential future recovery actions that the ATO might take if the taxpayer does not comply by a required date.  The process may end at that point if it is determined that the taxpayer is able to go into a payment arrangement for a suitable time period (up to about three years).  Alternatively, the process may continue with a requirement that the taxpayer provide additional information within a specified timeframe.[28]

    Firmer Action Warning Letter (FAWL)

    [28]T33 – 35.

15. If the taxpayer does not respond or call back by the fixed date, the next stage in the process involves the system recognising that the taxpayer was not in a payment arrangement and sending an activity to another DCO from the Enterprise Queue.  The activity is for a DCO to issue a Firmer Action Warning Letter (FAWL).  That is a legal notice issued to taxpayers warning that if they do not pay the debt, the ATO may initiate recovery action.  The warning specifies different actions involved, such as garnishee notices, direct penalty notices, wind‑up notices and bankruptcy.[29]

    Garnishees

    [29]      T35 – 36.

16. If there is no response by the taxpayer to a FAWL, the next activity in the process is to issue a Point in Time garnishee (PIT garnishee).  The PIT garnishee is a notice requiring a single payment to the ATO from a third party that owes money to, or holds money for, the taxpayer.  The PIT garnishee notice is mainly issued to banks.  If there is money in the bank account, the bank complies with the notice and sends the money to the ATO.

17. If the debt is not paid, and there is no contact from the taxpayer, the next stage of the ‘production line’ is a Standard Garnishee.  That is a garnishee notice to a third-party debtor requiring the debtor to continuously remit periodic payments from a taxpayer’s bank account.  The Standard Garnishee is only deemed to be complied with when either the total amount on the notice has been remitted to the ATO or the date range on the notice lapses.  The Standard Garnishee is more onerous than a PIT garnishee because it stays in effect for three months and stops a business owner accessing trading accounts, preventing the owner from carrying on business in the ordinary course.[30]

    [30]T37 – 57.

18. Mr Boyle gave evidence that it was common for a DCO to exercise a discretion to not issue a garnishee even though there was an activity delivered for the issue of a PIT garnishee or a Standard Garnishee.[31]  If Mr Boyle contacted the taxpayer and realised there were circumstances beyond the taxpayer’s control which warranted a different approach, there was discretion not to issue either garnishee.  The ATO had established principles which were set out in the ‘Garnishee Principles’ (implemented in 2015) and the Law Administration Practice Statement PS LA 2011/18.[32]

    Remission of debt or charges

    [31]T40.

    [32]T42 – 57; Exhibit A3: Affidavit of Richard David Boyle, [12] – [13].

19. Mr Boyle gave evidence that approximately one third of the debt correspondence work concerned requests from taxpayers for remission of General Interest Charge (GIC) (an interest charge applied to unpaid tax liabilities over $10,000) and of penalties for Failure to Lodge (FTL).[33]  A DCO has a discretion to remit GIC up to $25,000.[34]  He gave evidence that the remissions may be complex and take more than one day to resolve.  The inability to case manage requests for remissions could result in detriment to taxpayers because of inconsistent approaches of the DCOs who are randomly allocated the activities for the same request.[35]

    [33]T58.

    [34]T58.

    [35]T58 – 59.

20. Mr Boyle also gave evidence about pseudo debts which were pursued by DCOs when a taxpayer failed to notify they were no longer conducting business and the system would accumulate fines against the business number for failing to lodge a Business Activity Statement.  Public money was wasted by pursuing those debts.[36] 

    [36]T216 – 217.

    The Public Interest Disclosure on 12 October 2017

21. On 12 October 2017, Mr Boyle lodged his PID by email to [email protected].  There were ten chapters and four key aspects to the public interest disclosure.

    Standard Garnishee directive

22. Mr Boyle disclosed that at a weekly team meeting on 8 June 2017, the team was directed to issue Standard Garnishees on taxpayers’ bank accounts, including trading accounts, and to skip the less harsh option of issuing a PIT Garnishee.  He openly disagreed with the directive at the meeting.

23. In his PID, Mr Boyle stated that the directive was contrary to the report of the Inspector General of Taxation, Debt Collection: A report to the Assistant Treasurer, July 2015 and to almost every element of the Code of Conduct in the Public Service Act 1999 which requires that ATO employees act professionally, innovatively, efficiently, and collaboratively to achieve the best results for the Australian community and the Government.  He said the directive caused businesses to be shut down without cause and individual taxpayers to be pushed to the point of despair and suicide.[37]

    [37]      Exhibit A1: Affidavit of Richard David Boyle, Exhibit 30, pp155 – 161.

24. He said, ‘Debt staff in multiple units around the country were inappropriately, indiscriminately, and carelessly issuing Standard Garnishees during the month of June 2017, due to unethical directives of the Debt leadership’.[38]  In his opinion, it was to generate as much revenue collection as possible by the end of the 2017 financial year.

    [38]     Exhibit A1: Affidavit of Richard David Boyle, Exhibit 30, p164.

25. He referred to a meeting on 24 August 2017 when a senior coach advised that the directive was an apparent miscommunication.  He said the explanation was incorrect and contrary to the clear directive that was given on 8 June 2017.

    Unskilled staff

26. Mr Boyle disclosed that the Standard Garnishee directive was given to experienced Debt staff as well as brand new staff who were ‘extraordinarily unqualified to make an accurate determination of taxpayers’ compliance behaviour and history, which is necessary before taking such a harsh and blunt compliance approach such as a Standard Garnishee’.[39]  He said new staff were distressed at being forced to shut down businesses.  They were nowhere near qualified to make these complex decisions.  They had not yet completed basic training.

    ATO inefficiency

    [39]Exhibit A1: Affidavit of Richard David Boyle, Exhibit 30, p161.

27. Mr Boyle referred to the continual recycling of correspondence and requests from taxpayers and tax agents.  He said they can remain unresolved and recirculated in ATO systems for long periods of time.  He referred to the practice of the correspondence/requests being returned to the Enterprise Queue where they are left to await another staff member to action, sometimes for up to four to six months.

28. Mr Boyle referred to a lack of engagement of DCOs for many reasons, including inefficient methodologies and work practices; harassment for attempting to solve taxpayer issues; lack of support from coaches, team leaders and leadership; fear of reprimand and sanctions; and a continued insistence on using outdated and naïve measures of success.

    Reprisals

29. Mr Boyle stated that he had been unjustly treated in 2015 – 2016 for case management.  He was trying to resolve taxpayer and tax agent requests in a timely and efficient manner and was perversely sanctioned for breaching the Code of Conduct by unauthorised access of taxpayer records and told that he should have been returning matters to the Enterprise Queue.

30. Mr Boyle stated that he had been singled out and victimised because he spoke out against the Standard Garnishee directive when it was issued on 8 June 2017. Within days of the meeting on 24 August 2017, he was given two days paid leave on 30 and 31 August ‘to answer perfidious questions about my behaviour in the very meeting where this was announced’.[40]  He referred to being bullied and harassed by an Assistant Director because of his ethical concerns with the directive.  He referred to the Notice of Suspected Breaches of the Code of Conduct that was issued to him on 28 September 2017.  He said the unfounded allegations were brought against him specifically because he raised the ethical concerns.

    [40]Exhibit A1: Affidavit of Richard David Boyle, Exhibit 30, p165.

    Chronology of events and criminal charges (counts 1 – 6 and 8 – 15)

31. The information provided by Mr Boyle in his PID related to events dating back to November 2015.  The charges for which Mr Boyle claims immunity arise in the context of those events.  The following is a summary of those events and the charges.

    [Heading suppressed]

32. [Paragraph 63 suppressed]

33. [Paragraph 64 suppressed]

34. [Paragraph 65 suppressed][41]

    [41][Footnote 41 suppressed].

35. [Paragraph 66 suppressed]

36. [Paragraph 67 suppressed][42]

    [42][Footnote 42 suppressed].

37. [Paragraph 68 suppressed][43]

    [43][Footnote 43 suppressed].

    [Heading suppressed]

38. [Paragraph 69 suppressed][44]

    [44][Footnote 44 suppressed].

39. [Paragraph 70 suppressed][45]

    [45][Footnote 45 suppressed].

40. [Paragraph 71 suppressed][46] [47]

    [46]      [Footnote 46 suppressed].

    [47]      [Footnote 47 suppressed].

41. [Paragraph 72 suppressed]

    Application to be eligible for transfer (3 May 2016)

42. On 3 May 2016, Mr Boyle applied for the Mobility Register, which allows other managers to select and transfer ATO staff to different or higher roles.  His team leader denied him access to the Mobility Register, citing his personal leave as a performance issue.  He was very upset at that denial.[48]

    [48]Exhibit A1: Affidavit of Richard David Boyle, [22] – [23].

    June to July 2016

43. In his first affidavit,[49] Mr Boyle stated that he reported to Ms George in ATO People that there were issues within his area which included taxpayer requests not being solved, recirculating and being negligently misinterpreted.  He made his team leader aware of issues with a difficult case.  There were emails with Ms Callis about following procedure in a case that Mr Boyle wished to keep open overnight.

    [49]Exhibit A1: Affidavit of Richard David Boyle, [24] – [29].

44. Mr Boyle received the draft determination report from Mr Milograd regarding the alleged breaches of the Code of Conduct.  He provided a response.

    Code of Conduct determination (11 August 2016)

45. In his report dated 11 August 2016, Mr Milograd found that Mr Boyle breached the Code of Conduct during the period 21 July 2014 to 20 May 2015 by case managing client files instead of closing activities and by remitting GIC penalties.  Mr Boyle disputes the finding.[50]

    [50]Exhibit A1: Affidavit of Richard David Boyle, [30].

    Psychological injury and harassment claim (30 August 2016)

46. On 30 August 2016, Mr Boyle lodged an incident report for psychological injury on the ATO People system.  He complained about the conduct of his team leader, Ms Berrisford, under the direction of Assistant Director, Ms Douglas and under the leadership of Director Phil Ide.  He received an Initial Needs Psychological Assessment report but asserts that a bullying and harassment investigation should have commenced but never did.[51]

    [51]Exhibit A1: Affidavit of Richard David Boyle, [41] – [44].

47. Mr Boyle gave evidence that he believed it was in the following days that he was placed in another team with a different team leader.[52]

    [52]T31.

    Draft public interest disclosure sent to union (22 September 2016)

48. On 22 September 2016, Mr Boyle sent his draft of a public interest disclosure to his Community and Public Sector Union (CPSU) representative.  The draft PID was stated to be ‘about the leadership in Debt Early Intervention in Adelaide’.  He referred specifically to the behaviour of his prior team leader and that behaviour being sanctioned by an Assistant Director and overseen by a Director.  He stated that there was maladministration and vicious targeting of him for unknown reasons.

49. Mr Boyle did not disclose the draft PID to the ATO.[53]  He could not recall if he had feedback from the union.  He was in a very distressed state at that point and was not at work.  He may not have pursued their feedback because he was gravely unwell.[54]

    [53]T100.

    [54]T223.

50. Mr Boyle further explained that he had been in contact with the CPSU during the fraud and Code of Conduct investigations and was advised to be deferential and make apologies for any minor administrative mistakes if he wanted to keep his job.  When he realised that the alleged breaches of the Code of Conduct were to be found proved, the relationship with the CPSU deteriorated because he felt they were no longer going to offer him the help and support he needed.  He came to believe that the CPSU could not take him through the PID process.[55]

    [55]T139 – 140.

51. In his addendum affidavit, he stated that this draft focused on the issues of pseudo‑debt and Activities recirculating in the Enterprise Queue which causes a failure by the ATO to process taxpayer requests in a reasonable timeframe.

52. He was collecting evidence in relation to those issues.[56]

    [56]Exhibit A3: Addendum affidavit of Richard David Boyle, [18].

    Sanction for breach of Code of Conduct (November to December 2016)

53. In November 2016, Mr Boyle was advised of the proposed sanctions for his breaches of the Code of Conduct.  He provided his response and then received notice of the imposed sanctions.  His salary was reduced by 5% for one year.[57]

    [57]T63.

    Early 2017

54. In early 2017, Mr Boyle moved back into his original team which had a new team leader.

55. In his addendum affidavit, Mr Boyle stated that usually in around February each year the garnishee work took a more prominent position in the daily and weekly schedules.  However, in April/May 2017, ‘the garnishee work ramped up more than usual, with more emails about garnishees and an increased garnishee workload’.[58]

    [58]Exhibit A3: Addendum Affidavit of Richard David Boyle, [11].

56. Mr Boyle gave evidence that, having sent the draft PID to the CPSU, he was gathering information that substantiated and evidenced what he later set out in his PID lodged on 12 October 2017.[59]  The photographs and recordings the subject of the charged occasions (counts 1 – 6 and 8 – 15) were not the only occasions on which he took photographs and recorded conversations.[60]

    Count 1 (19 April 2017)

    [59]T138.

    [60]T96, 105, 106, 109 – 110, 112 – 113, 115, 117, 128, 137 – 138, 172.

57. On 19 April 2017, Mr Boyle used his mobile phone to take two photographs of information relating to the taxpayer Mr CC, including his name, phone number and personal financial circumstances.  The photographs are of a Word document on a computer screen comprising notes of an inbound call with the taxpayer and a case summary.[61] Mr Boyle is charged with making a record of protected information by a taxation officer contrary to s 355-25(1)(b)(i) of Schedule 1 of the TAA.

    [61]Exhibit A1: Affidavit of Richard David Boyle, exhibits 45.1, 45.4.

1. In April 2017, Mr Boyle received a hardship call from Mr CC who owed a debt of approximately $80,000.  Mr CC had reported that he had suffered a severe illness and was hospitalised, resulting in the closure of his business.  He had no assets, work or income.  His wife was on maternity leave following the birth of their third child.  He was struggling with his mental health due to financial pressures and had attempted suicide.  Mr Boyle actioned the case by recommending that the ATO not pursue the debt which would temporarily relieve the financial hardship, with the monies to be repaid at a later time.  That recommendation was accepted.[62]

   [62]Exhibit A1: Affidavit of Richard David Boyle, [107] – [110]; Exhibit A3: Addendum Affidavit of Richard David Boyle, [22] – [25]; T129.

2. At the time he took these photographs, Mr Boyle gave evidence that he intended to make a PID which would include this information.[63]  The photographic record was for Mr Boyle and the investigators who were to investigate his PID.[64]  Mr Boyle gave evidence that he could not memorise the information.[65]

   [63]T139.

   [64]T259.

   [65]T259.

3. Mr Boyle asserts that he took the photographs as evidence of the concerning cases before the ATO, including the immense stress that ATO issues cause taxpayers, the real risk of harm to taxpayers who are struggling with that stress and how that harm can eventuate if a case is not actioned efficiently or effectively. He believed the record would assist with his PID as an example of the importance of case‑by‑case management and having compassionate options, in stark contrast with the ATO’s harsh approach at the time which encouraged issuing garnishee orders.  This is a theme he raised in his PID in Chapters 2.1, 6.2 and 9. [66]

   Count 2 (22 May 2017)

   [66]Exhibit A1: Affidavit of Richard David Boyle, [121] – [126]; Exhibit A3: Addendum affidavit of Richard David Boyle, [22] – [25].

4. On 22 May 2017, Mr Boyle used his mobile phone to take a photo of his computer screen at work showing a draft email to his team leader which mentioned the taxpayer, SH.  That conduct is the subject of count 2 (Make a record of protected information by a taxation officer).

5. On 3 April 2017, Mr Boyle had taken a hardship call from SH.  Even though SH had ceased trading, the system continued to charge SH quarterly instalments, creating ‘pseudo‑debt’ and incurring FTL penalties and GIC.  The system continued to prompt DCOs to continue to attempt to recover the pseudo‑debt.  It required action from the taxpayer to address the situation.  Mr Boyle considered this was inefficient on the part of the ATO and distressing and frustrating for taxpayers.  Mr Boyle conducted a ‘real-time’ exit for SH from the Pay as You Go Income Tax Instalments system.  Two days later he became aware of an error he made which needed correcting.

6. Mr Boyle took the photograph of the draft email to his team leader as evidence that he had not taken it upon himself to re‑access the SH case to correct the technical error following earlier targeted reprisals about his ‘case managing’.  He said any other colleague would not have had to send emails to their team leader to deal with a small administrative error.

7. Mr Boyle submitted that his complaints about the unfair allegations of case managing and being held to a higher level of accountability than his colleagues was referred to in Chapter 7.2 of his PID, which supports the contention that the photographing of this information formed part of the process of making the PID.[67]  In Chapter 4 of the PID, Mr Boyle stated that ‘[t]his harassment, victimisation and bullying has been conducted by the previous Debt leadership, in a long and sustained campaign at making the workplace untenable from 2014 to 2016 (documented extensively)…[and] by the new Debt leadership in a sustained campaign at making the workplace untenable (documented)’.[68]

   [67]Exhibit A1: Affidavit of Richard David Boyle, [129] – [158]; Exhibit A3: Addendum Affidavit of Richard David Boyle,  [26] – [29]; T141 – 153; 260 – 261.

   [68]T160 – 161.

8. He gave evidence that he took a photograph because he could not rely on his memory to remember a list of names and a list of ABN or tax numbers that he could later refer to in order to demonstrate the claims in his PID.[69]

   [69]T261.

   Standard Garnishee directive (8 June 2017)

9. Mr Boyle gave evidence about a scheduled team meeting on 8 June 2017 at which staff were given a directive mandating the issuance of standard garnishee orders: ‘we were to issue standard garnishees on cases that ordinarily would be subject to a Point in Time garnishee, which has a less detrimental effect on the taxpayer’s financial situation’.[70]  Mr Boyle gave evidence that he objected to that approach during the meeting.[71]

   [70]Exhibit A1: Affidavit of Richard David Boyle, [60].

   [71]T236 – 7; Exhibit A1: Affidavit of Richard David Boyle, [61].

10. Mr Boyle gave evidence that he disobeyed the directive after it had been given because of his concerns about the catastrophic effects of issuing standard garnishees in place of PIT garnishees.[72]

    [72]T89.

    Coaching session (28 July 2017)

11. On 28 July 2017, Mr Boyle was called to a coaching session with his team leader and the team leader of the coaching team.

    Count 3

12. Mr Boyle used his mobile phone to record the conversation (about 56 minutes) without the knowledge of the other two participants. He is charged with using a listening device to overhear, record, monitor or listen to a private conversation contrary to s 4 of the Listening and Surveillance Devices Act 1972 (SA).

13. Mr Boyle gave evidence that he recorded the conversation because of the directive on 8 June 2017 and a meeting with the same two people on 14 July 2017 when he was told that he had failed four quality assessments.  It was clear to him that he was being discriminated against and he anticipated this meeting was part of the reprisal.  The coaching session felt unusual and ‘out of place’.  He was not aware of any other colleagues being spontaneously subjected to that number of quality assessments, which were over and above the monthly routine checks.  He went into the meeting with the expectation that he was to be spoken to about the standard garnishee directive recently given and to gain potential evidence of reprisals against him.[73]  He suspected that it had been organised because of his views concerning the ATO’s unethical debt collection practices, particularly with respect to the garnishee directive.

    [73]Exhibit A1: Affidavit of Richard David Boyle, [159] – [171]; Exhibit A3: Addendum Affidavit of Richard David Boyle, [30] and [31].

14. Mr Boyle intended to rely upon the recording for his PID.  He did not believe that there was any other way to show what was occurring other than to gather hard evidence.  The complexity of the information was too great.  He did not ask them if he could record the conversation because he did not contemplate that it would have been allowed.  He believed it was more important to document what was going on and he was traumatised from his prior breakdown.[74]

    [74]T156 – 159.

15. Mr Boyle submits that the conversation was recorded as part of the process of him making his PID.[75]  In support of that submission, he identified parts of Chapters 3.3, 3.5 and 4 of his PID where he refers to his treatment in the ATO.

    [75]Written submissions of Applicant dated 17 October 2022, [117] – [118].

    Meeting to retract Standard Garnishee directive (24 August 2017)

16. Mr Boyle gave evidence about a meeting called ‘a garnishee training meeting’ on 24 August 2017.

    Count 4

17. Mr Boyle covertly recorded the garnishee training meeting on 24 August 2017. The meeting involved Mr Boyle and nine of his team members. It was chaired by a senior coach. Mr Boyle is charged with using a listening device to overhear, record, monitor or listen to a private conversation contrary to s 4 of the Listening and Surveillance Devices Act 1972 (SA). The recording lasts for approximately one hour and eight minutes.

18. Mr Boyle believed that something significant was about to occur in relation to the garnishee directive.  He could not work out why there would be training on garnishees months after the directive.[76]  He was hoping to record evidence that the garnishee directive had occurred, and any information discussed about it.[77]

    [76]T89.

    [77]T162.

19. He made the recording to collect evidence in support of his PID, which he was preparing at the time.  He had been informed by senior DCOs that they had not obeyed the garnishee directive and would continue to disobey.

20. Mr Boyle gave evidence that he did not believe notes were sufficient to substantiate what had occurred and he felt that it would be covered up so the voice recording and transcript would be unequivocal and objective evidence.[78]  He had no confidence in the PID internal review system.[79] 

    [78]T164.

    [79]Exhibit A1: Affidavit of Richard David Boyle, [172] – [185].

21. Mr Boyle specifically referred to the meeting in Chapter 2.5 of his PID.  He did not disclose that he had a transcript of the meeting.  He gave evidence that the recording is part of the evidence referred to in Chapter 2.3 where he stated: ‘I documented extensive evidence from many colleagues in Adelaide, and in my personal conversations with coaches on the national coaching hotline, that this directive was given to Earlier Intervention (EI) staff and Serious Debt Management (SDM) staff on a national basis’.[80]  In Chapter 9 of his PID, he also referred to documenting this issue.

    [80]T163.

22. Mr Boyle submits that the recording the subject of count 4 formed part of the process of him making the PID.[81]

    Count 5

    [81]     Written submissions of Applicant dated 17 October 2022, [118].

23. After the abovementioned meeting, Mr Boyle covertly recorded a conversation he had with another senior coach when they were near her workstation. Mr Boyle is charged with using a listening device to overhear, record, monitor or listen to a private conversation contrary to s 4 of the Listening and Surveillance Devices Act 1972 (SA).

24. Mr Boyle considered it ‘imperative to obtain and document that person’s opinion about the Garnishee Directive and information concerning the bulk write off and automated re-raise projects.’[82]  He made the recording ‘to facilitate the PID as I believed the repeated past behaviour of the ATO to lie and abuse process (including in the first Code of Conduct) had sufficiently demonstrated to me that the organisation was so bastardised, that it could not be trusted to hold itself to account, or investigate its own culpabilities and failings.  In my mind, they had already demonstrated they did not care about the health and safety of their staff, or community’.[83]  He accepted that he did not raise bulk write-offs and automated re‑raise projects in his PID but said he did raise the garnishee issue.[84]

    [82]     Exhibit A1: Affidavit of Richard David Boyle, [189].

    [83]Exhibit A1: Affidavit of Richard David Boyle, [190].

    [84]Exhibit A3: Addendum Affidavit of Richard David Boyle, [34].

25. Mr Boyle gave evidence that he included reference to this conversation in Chapters 2.3. 2.4 and 9, including having ‘documentation’ of discussions.  He submits that the recording formed part of the process of him making the PID.[85]

    [85]Written submissions of Applicant dated 17 October 2022, [132].

    An inexperienced employee (28 August 2017)

    Count 6

26. On 28 August 2017, Mr Boyle covertly recorded a conversation between himself and ATO Officers Joanne Stanway and Jie Le at Mr Le’s workstation.  Ms Stanway was a minor participant as she walked past.  Mr Le was a new staff member; he had only been in the office for months.[86] Mr Boyle is charged with using a listening device to overhear, record, monitor or listen to a private conversation contrary to s 4 of the Listening and Surveillance Devices Act 1972 (SA).

    [86]T166.

27. After the garnishee directive was retracted on 24 August 2017, Mr Boyle considered it necessary to secure cogent information to prove that this Directive had previously been given.  He stated: ‘I did not believe that the paperwork we had received at the time, and any notes I had taken, by themselves, would substantiate what had occurred.  I did not believe that writing notes after I had conversations with these DCOs would be of sufficient weight in support of my PID.  This is in part due to the seriousness of the matter at hand and the overwhelming power imbalance between the ATO and a lone employee’.[87]  He considered ‘first‑hand accounts from fellow DCOs might be the only way to prove that the Garnishee Directive had been given and was covered up.’[88]  He said ‘[o]nce again it was clear to me that the tax office would lie and deceive investigations…that this garnishee directive did not occur.  I believed it was important for the public to understand what really happened.’[89]

    [87]Exhibit A1: Affidavit of Richard David Boyle, [203].

    [88]Exhibit A1: Affidavit of Richard David Boyle, [204].

    [89]T168.

28. He gave evidence that this is a particular case where a brand new staff member was issuing standard garnishees in place of PIT garnishees.[90]  He was hoping to get ‘concise and precise evidence that brand new staff were also involved in the directive and that meant that they were breaching agreements between the Inspector General of Taxation and the tax office that phone calls should be made.’[91]  He did not think to ask Mr Le if he could record the conversation.  He believed that most people in a work environment would decline.[92]

    [90]T166.

    [91]T167 – 168.

    [92]T267.

29. Mr Boyle recorded the conversation to support his PID claim.[93]  He submits that the recording of this conversation formed part of the process of making his PID.[94]  Mr Boyle gave evidence that he included reference to this in Chapters 2.1, 2.3 and 2.4.

    [93]Exhibit A1: Affidavit of Richard David Boyle, [207].

    [94]Written submissions of Applicant dated 17 October 2022, [136].

    The day before Mr Boyle is suspended (5 September 2017)

30. On 5 September 2017, Mr Boyle believed he ‘was imminently going to be removed from the tax office by way of reprisals’.[95]

    [95]T169.

31. He recorded conversations with three work colleagues.

32. He took photographs of hard copy documents held within his locker.  He gave evidence that the ATO required records that were printed off from the system to be kept in secure cabinets.[96]  Mr Boyle went to his locker and ‘looked through these sorts of printed materials and made an assertation does this reach a threshold of something that I can use to substantiate the facts that I have included in my PID’.[97]

    Counts 8 and 9

    [96]T275.

    [97]T275.

33. On 5 September 2017, Mr Boyle recorded a conversation with Ms Bowley at her workstation (count 8).  He described Ms Bowley as a highly experienced Client Accounting Services (CAS) officer.  He also recorded a conversation with Mr Brenton Anderson in a meeting room (count 9).  He described Mr Anderson as an experienced DCO who had extensive experience in CAS.  They had previously advised him of various matters, including a concern about the large amount of debt that was being written off inappropriately.  He believed that these were ‘matters of enormous concerns, in the public interest and properly warranted me making a record of what had been alleged’.[98]  He thought this was his last opportunity to obtain such information.

    [98]Exhibit A1: Affidavit of Richard David Boyle, [217].

34. Mr Boyle is charged with two counts of using a listening device to overhear, record, monitor or listen to a private conversation contrary to s 4 of the Listening and Surveillance Devices Act 1972 (SA).

35. At the time of making the recording, Mr Boyle intended to disclose it in his PID but eventually reached a decision not to include that information because it was too complex and would detract from the main issues.  He decided to use the evidence at another time and place.[99]  Nevertheless, he submits that there are implied references to this material in his PID (Chapter 6 relating to cultural issues and leadership and in Chapter 7.2 relating to continual mixed messages) which are a sufficient connection to the PID for the immunity from liability to extend to these counts.[100]

    Count 10

    [99] Exhibit A1: Affidavit of Richard David Boyle, [219], [220], [233].

    [100]Written submissions of Applicant dated 17 October 2022, [142].

36. On 5 September 2017, Mr Boyle recorded his conversation with Ms Daly when they were outside the entrance to the kitchen area of the ATO Adelaide office.  Ms Daly was a colleague and team member.  He had worked with her for years. He did not think to ask her if he could record the conversation.[101]

    [101]T270.

37. Mr Boyle is charged with using a listening device to overhear, record, monitor or listen to a private conversation contrary to s 4 of the Listening and Surveillance Devices Act 1972 (SA).

38. Mr Boyle recorded the conversation because he was concerned that the ATO had been manipulating other DCOs in an attempt to end his career, destroy his reputation, and avoid further attention into their dishonest cover up of the maladministration that occurred with the Garnishee Directive.[102]  He said ‘I considered it incumbent upon me to gather one more piece of evidence that may assist in demonstrating the autocratic management that I was being subjected to, while knowing full well it was an insurmountable and impossible task to achieve, and being of the suspicion that my employment was being terminated the next morning’.[103]  He believed it was in the public interest and his lawful interest to attempt to obtain evidence that Ms Daly was supporting and assisting these reprisals against him.[104]  He believed notes could be considered hearsay or not firm enough evidence that he might need in future legal proceedings to defend himself against these reprisals that have had a catastrophic toll on his life.[105]  He made the recording to facilitate the PID.[106]

    [102]Exhibit A1: Affidavit of Richard David Boyle, [238].

    [103]Exhibit A1: Affidavit of Richard David Boyle, [240].

    [104]T176.

    [105]T176 – 177.

    [106]Exhibit A1: Affidavit of Richard David Boyle, [241].

39. In Chapter 3.1 of his PID, Mr Boyle specifically referred to having a conversation with Ms Daly on 5 September 2017 and quoted parts of that conversation based on his memory, not the transcript of the recording.[107]  He submits that the recording of the conversation formed part of the process of making his PID.[108]

    Count 11

    [107]T271.

    [108]   Written submissions of Applicant dated 17 October 2022, [145].

40. At about 6.30 pm on 5 September 2017, Mr Boyle took four photographs of documents relating to the taxpayer, MZ.  Two photographs are of two pages of a letter written by the taxpayer which includes information about her financial affairs.  The third and fourth photographs are of an email from the taxpayer to her tax agent dated 31 January 2014.

41. Mr Boyle is charged with making a record of protected information by a taxation officer contrary to s 355-25(1)(b)(i) of Schedule 1 of the TAA.

42. Mr Boyle gave evidence that this was one of the cases in the 2015/16 Code of Conduct investigation for which he remitted GIC but was criticised for his case management.  He worked on the case from 17 January to 4 February 2014.  He was required to determine whether to remit GIC and FTL penalties. It was a complex case because MZ had paid tax but had not lodged Business Activity Statements or income tax returns because of severe family circumstances.  It involved Mr Boyle transferring large amounts of credit between multiple tax entities.[109]

    [109]Exhibit A1: Affidavit of Richard David Boyle, [255] – [260].

43. Mr Boyle took photographs of this case when he was reviewing the case examples stored in his locked filing cabinet.  Taking photographs of this case was not a spontaneous decision made on 5 September 2017.  Rather, since 3 August 2017, he had been identifying instances where DCOs had opened the case and returned it to the Enterprise Queue in-tray.  He stored the hardcopy material in his locked filing cabinet and had left that material there as an audit trail for the ATO.  The photographs were the next best record he could obtain for this aspect of his PID.[110]  He did not believe that he could memorise and recount this story in any meaningfully accurate way without taking photographs.[111]

    [110]Exhibit A1: Affidavit of Richard David Boyle, [262], [268] – [273].

    [111]T273.

1. The photographs were taken for the purpose of his PID.  This was one of the cases he selected to be included in his PID because it outlined areas of potential consequences of maladministration relating to the GIC remission process.  Mr Boyle considered it to be a perfect example of when remission requests take more than one day.  It was necessary for him to do a limited amount of case management.  By completing it over a period of time rather than putting it back in the pool, detriment to the taxpayer was avoided because she was not exposed to different views of other DCOs about the remission.  Due to the complexity of the work, many DCOs would abdicate from commencing and/or completing the task and instead, return it to the pool.[112]

   [112]T60 – 63, 178 – 180; Exhibit A1: Affidavit of Richard David Boyle, [251] – [274], [277] – [278].

2. He referred to this topic in his PID at Chapter 6.1, including: ‘I have also documented significant examples more recently where despite raising these issues for many years now, some staff continue to put these Activities containing taxpayers’ unfinalised requests back in the Enterprise Queue for other staff to complete’.[113]  It was also relevant to Chapter 3 regarding events that were aimed at driving Mr Boyle out of the ATO.[114]  He submits that the photographs formed part of the process of him making his PID.[115]

   Count 12

   [113]T118 – 119; Exhibit A1: Affidavit of Richard David Boyle, [276].

   [114]   Exhibit A1: Affidavit of Richard David Boyle, [280].

   [115]Written submissions of Applicant dated 17 October 2022 , [157].

3. At about 6.38 pm on 5 September 2017, Mr Boyle took a photograph of parts of two emails which identified the taxpayer partnership of W & W, one classified ‘sensitive’.

4. Mr Boyle is charged with making a record of protected information by a taxation officer contrary to s 355-25(1)(b)(i) of Schedule 1 of the TAA.

5. Mr Boyle received a hardship call from Ms W who gave information about the breakdown of the relationship with her husband and his disinterest in discharging the debt which had been escalating since February 2014.  Until property settlement occurred, Ms W had limited financial means and was unable to discharge the debt.  The ATO had expended a significant amount of money attempting to recover the debt.  Mr Boyle recommended a non‑pursuit of the debt.  He informed Ms W that income credits would be offset against the debt, and she advised she had every intention of discharging it once the property issues were resolved.[116]

   [116]Exhibit A1: Affidavit of Richard David Boyle, [283] – [292].

6. Mr Boyle’s recommendation was denied by a person who Mr Boyle believed ‘was clearly aligned with management and would participate in any reprisals and refusals of my requests, and that was extremely disturbing to me because of the effect that this might have had on this lady and her children, who had a…psychologically abusive partner, when we could simply non pursue the debt and she could deal with her life, sell the house, and call us back and pay’.[117]  He gave evidence that ‘it was just absolutely staggering to me that…what I believe was a vindictiveness and abusive management style could flow through to a detrimental effect for a taxpayer’.[118]

   [117]T72 – 73.

   [118]T73.

7. Mr Boyle took the photograph because it was an example where reprisals against him had a direct flow‑on effect to a taxpayer.[119]  He referred to this issue in Chapters 4, 6 and 7 of his PID.[120]  In Chapter 4, he stated that, ‘I have more recently been targeted by coach [KS], senior coach [Mr C], and coaching team Leader [KG], with what appears to be a campaign orchestrated by my leadership to criticise and scrutinise me, and make deceptive, improper, and disingenuous assertions about my motives, and the quality of work (documented)’.[121]

   [119]T182.

   [120]T182 – 183.

   [121]    Exhibit A1: Affidavit of Richard Boyle, Exhibit 30, p168.

8. Mr Boyle submits that the photograph formed part of the process of him making his PID.[122]

   Count 13

   [122]Written submissions of Applicant dated 17 October 2022, [167].

9. At about 6.48 pm on 5 September 2017, Mr Boyle took two photographs of hardcopy documents relating to the taxpayer, CS. The information included CS’ Tax File Number (TFN). Mr Boyle is charged with Record another person’s tax file number, contrary to s 8WB(1)(a) of the Taxation Administration Act 1953 (Cth).

10. On 27 January 2017, Mr Boyle took a hardship call from CS whose company had accrued significant income tax credit but had since shut down.  CS was experiencing financial hardship as well as personal hardship because of trauma suffered by his son and was asking for the credit money to be referred to him. 

11. Mr Boyle photographed this information as evidence of a ‘case that needed a high level of care and attention, a determination to fight administrative process to get this actioned in a timely manner’.[123]  The ordinary course would be for the DCO to refer the matter to the Lodgement Business Line for resolution.  Since 2014, Mr Boyle had been raising the delay involved in that process.  Mr Boyle did not refer the matter but resolved the issues himself to expedite the refund.  Mr Boyle was concerned about re‑actioning the case himself because he had been criticised for case managing other matters.  He told CS to call back within a week, which would be enough time for him to have a coach or team leader action his recommendations.[124]

    [123]T184.

    [124]   Exhibit A1: Affidavit of Richard David Boyle, [303] – [311]; Exhibit A3: Addendum Affidavit of Richard David Boyle, [42] – [46]; T184 – 185.

12. Mr Boyle believed it was necessary to photograph this information because it was not reasonably possible for anyone to remember a list of taxpayer names.[125]  Mr Boyle referred to this issue in his PID in Chapters 7.1 and 7.2, which included the mixed messages from management, ATO inefficiency and the punitive level of scrutiny over his work.[126]

    Counts 14 and 15

    [125]T287.

    [126]Exhibit A1: Affidavit of Richard David Boyle, [314] – [315]; T185 – 186.

13. At 6.49 pm on 5 September 2017, Mr Boyle used his mobile phone to take two photographs of emails with his team leader on 25 and 26 May 2017 concerning taxpayer, BB.  One photograph identified BB’s TFN (count 14) and the other photograph identified BB’s company and their taxation position (count 15).

14. Mr Boyle is charged with Record another person’s tax file number, contrary to s 8WB(1)(a) of the TAA (count 14) and Make a record of protected information by a taxation officer contrary to s 355-25(1)(b)(i) of Schedule 1 of the TAA (count 15).

15. Mr Boyle actioned this case on 25 and 26 May 2017.  He originally received the company file as a garnishee to recover a debt of approximately $125,000.  He reviewed the tax record of BB, the director of the company, which showed that BB was a director of four companies.  He checked the other companies and identified a serious and consistent level of non-compliance.  The outstanding debt totalled just over $450,000.  He was troubled by the ATO granting BB another ABN for a new company after BB had accumulated such significant unpaid debts on the preceding companies.  Nothing had happened on the case from 2005 to 2017.

16. Mr Boyle referred the matter to ATO Intelligence and brought the case to the attention of his team leader.  He believed this was a case of a director exhibiting phoenix behaviour[127] and gaining a clear unfair advantage of not paying their tax over the rest of the community that he thought warranted a severe concern about the failures of the ATO to hold people to account.  He was criticised by his team leader the next day for referring it because it ‘took too much time’.[128]

    [127]Phoenixing is a reference to the phoenix bird which rises from the ashes so that a company that exhibits phoenixing behaviour will run a company, close it up, move their operation to a different entity and name and start all over again and ‘rip off’ the community and government: T189 – 190. 

    [128]Exhibit A1: Affidavit of Richard David Boyle, [318] – 331]; Exhibit A3: Addendum Affidavit of Richard David Boyle, [47] – [49]; T187 – 189.

17. He took photographs to assist his PID as evidence of phoenixing and the arbitrary approach of the ATO, which led to an inconsistent application of policies and significant discrepancies in the treatment of taxpayers.[129]  This is referred to at Chapter 6.3: ‘Many taxpayers utilise this constant contact with different DCOs to game the system and play on their sympathies.  They know the cycles of Debt Collection modes the ATO uses that fail to hold them to account, giving them an unfair advantage over more compliant taxpayers’.[130]  He submits that the photographs were taken for the purpose of collecting evidence for the PID.[131]

    [129]Exhibit A1: Affidavit of Richard David Boyle, [337]; T187.

    [130]    Exhibit A1: Affidavit of Richard David Boyle, Exhibit 30, p172.

    [131]Written submissions of Applicant dated 17 October 2022, [183].

    Mr Boyle suspended (6 September 2017)

18. On 6 September 2017, Mr Boyle was suspended from his work at the ATO.  He was informed that he was to have paid leave whilst being investigated for further breaches of the Code of Conduct.  He did not attend the workplace again after that date.

19. On 21 September 2017, he was served with a Notice of Suspected Breach of the APS Code of Conduct.[132]  It was alleged he had inappropriately remitted GIC for two taxpayers and stored a large volume of taxpayer information on his personal H drive.

    [132]Exhibit A1: Affidavit of Richard David Boyle, [73], Exhibit 28.

20. On 21 September 2017, Mr Boyle responded via his lawyer, Ms Teffaha.[133]  He denied breaching the Code of Conduct.  He stated that large numbers of staff store taxpayer information on their H Drive, including letters to taxpayers.  The emails were automatically stored on the H Drive.  He stated that the alleged breaches were ‘spurious, vindictive, constituting victimisation, and not in concert with the important task of creating a safe work environment, not to mention a rational and fair judgement and analysis of taxpayer’s compliance behaviour as to the organisation’s brief covers’.[134]

    [133]Exhibit A1: Affidavit of Richard David Boyle, [73], Exhibit 29.

    [134]    Exhibit A1: Affidavit of Richard David Boyle, Exhibit 29.

    ATO decision not to investigate the public interest disclosure (27 October 2017)

21. On 27 October 2017, Mr Andrew Wunsch, Senior Investigator, FPII, wrote to Mr Boyle[135] advising that he had decided under s 48 of the PID Act not to continue investigating the disclosure which was allocated to him on 19 October 2017 on the basis that ‘the information you disclosed does not, to any extent, concern serious disclosable conduct (s 48(1)(c))’.

    [135]    Exhibit A1: Affidavit of Richard David Boyle, Exhibit 31.

22. Mr Wunsch stated that in reaching that decision he considered the information provided and the PID Act.  In particular, he noted:

    ØSection 31(a) of the Public Disclosure Act states conduct such as disagreement with government policy is not disclosable conduct.  As such your views on ATO debt collection policy are not disclosable conduct under the Public Disclosure Act 2013. 

    ØATO People and Comcare are best placed to deal with the majority of grievances you raise. Under section 48(1)(f) it would be inappropriate to conduct another investigation at the same time.

23. He referred to other courses of action that may be available to Mr Boyle.[136]

    [136]Those courses of action were a complaint to the Commonwealth Ombudsman, making an adverse actions claim under the Fair Work Act 2009 and Review of Action Procedures.

24. On the face of this letter, the reference to s 48(1)(f) is misconceived. Section 48(1)(f) provides that the principal officer of an agency may decide not to investigate if ‘the information concerns disclosable conduct that is the same, or substantially the same, as disclosable conduct that is being investigated under (i) a law of the Commonwealth other than this Act; or (ii) the executive power of the Commonwealth; and it would be inappropriate to conduct another investigation at the same time’. The conduct disclosed in the PID was not otherwise ‘being investigated’. A statement by the principal officer that someone else was best placed to ‘deal’ with it did not mean it was ‘being investigated’ under s 48(1)(f), let alone investigated under s 48(1)(f)(i) or (ii).

25. Part of an investigation by a principal officer may include consideration of whether a different investigation should be conducted (a) by the agency or (b) by another body under another law of the Commonwealth.[137]  However, that does not appear to absolve the principal officer from conducting their investigation under the PID Act.

    [137]Section 47(3) of the PID Act.

    Mr Boyle’s complaint to the IGTO (21 November 2017)

26. On 21 November 2017, Ms Teffaha forwarded a complaint to the IGTO (Mr David Pengilly) which was in similar terms to Mr Boyle’s PID.  She stated that Mr Boyle has prepared a comprehensive complaint that addresses the relevant contradictions arising from these debt directives when assessed against the recommendations made by the IGT in its Debt Collection Report and the subsequent agreements between ATO and Canberra.[138]

    [138]Exhibit A1: Affidavit of Richard David Boyle, [77], Exhibit 32.

27. On 4 December 2017, the IGT responded stating that he had ‘previously completed a wide-ranging review into the ATO’s debt collection in 2015 which discussed, amongst other things, the ATO’s use of garnishee notices.  However, should concerns continue to arise with respect to the ATO’s debt collection, the IGT will consider those concerns in developing his further work program to identify areas of greatest community concern.  Accordingly, we will formally record Mr Boyle’s concerns for future consideration’.[139]

    [139]Exhibit A1: Affidavit of Richard David Boyle, Exhibit 33.

    Third Code of Conduct breaches (8 January 2018)

28. On 8 January 2018, Mr Boyle was served with a supplementary Notice of Suspected Breaches of the Code of Conduct.[140]  It concerned his alleged behaviour during the training session on 24 August 2017 said to be ‘inappropriate, intimidating and aggressive, and not in alignment with the APS Values or Code of Conduct’.  It also referred to similar behaviour during meetings on 8 June 2017 and 27 July 2017.

    [140]Exhibit A1: Affidavit of Richard David Boyle, [78], Exhibit 33.

29. On 12 January 2018, Ms Teffaha wrote to the Commissioner of Taxation proposing the cessation of all current investigations into Mr Boyle and his transfer to the Smarter Data area.[141]

    [141]Exhibit A1: Affidavit of Richard David Boyle, [79], Exhibit 34.

30. On 31 January 2018, the Assistant Commissioner stated that he had reviewed the two Notices of Suspected Breach and considered that ‘the Code investigation has been instigated in good faith and has a legitimate basis to proceed.  There is nothing on the face of the allegations or the matters referred to in the two notices that would support a characterisation of the investigation in any other way’.[142]

    [142]Exhibit A1: Affidavit of Richard David Boyle, [80], Exhibit 35.

    Determination of second and third Code of Conduct breaches (26 March 2018)

31. On 26 March 2018, Ms Hamilton, Breach Decision Maker, ATO People, determined that Mr Boyle breached the Code of Conduct when he remitted GIC in relation to two taxpayers:

    On the evidence before me I am satisfied that Mr Boyle has intentionally disregarded ATO policy and processes in making decisions about the remission of GIC…and has instead made decisions based on his personal values apparently to address his concerns about the fairness of the ATO’s Debt policy (specifically in relation to garnishees), its effectiveness in securing willing compliance with the tax system and his desire to achieve what he perceives to be a ‘fair’ outcome for taxpayers.[143]

    Ms Hamilton also found that Mr Boyle had breached the Code of Conduct by storing taxpayer information on his H Drive and behaving in an inappropriate, intimidating and aggressive manner during the training session on 24 August 2017.

    [143]Exhibit A1: Affidavit of Richard David Boyle, [85], Exhibit 36.

    Four Corners Story (9 April 2018)

32. On 9 April 2018, the ABC presented a story called ‘Mongrel Bunch of Bastards’ as a Four Corners program.  It featured taxpayers talking about their adverse experiences with the ATO.  Mr Boyle appeared as a whistle‑blower.[144]

    [144]Exhibit A1: Affidavit of Richard David Boyle, [90], Exhibit 39.

    Mr Boyle’s employment terminated (1 May 2018)

33. On 1 May 2018, the ATO terminated Mr Boyle’s employment by way of sanction for the determined Code of Conduct breaches.[145]

    [145]Exhibit A1: Affidavit of Richard David Boyle, [92].

    IGTO review (March 2019)

34. In March 2019, the Inspector-General of Taxation, Taxation Ombudsman (IGTO) released a ‘Review into the Australian Taxation Office’s use of Garnishee Notices’.[146]

    [146]Exhibit A1: Affidavit of Richard David Boyle, [99] – [101], Exhibit 42.

35. The review was commenced ‘to maintain community confidence in the administration of the tax system after serious allegations were made about the ATO’s inappropriate use of garnishee notices on small business’ by a current and former ATO officer on the ABC Four Corners program on 9 April 2018.[147]

    [147]Exhibit A1: Affidavit of Richard David Boyle, [99] – [101], Exhibit 42, page v.

    Senate Review (August 2019 to June 2020)

36. On 1 August 2019, the Senate Economics Legislation Committee resolved to inquire into the performance of the IGTO, including the protections afforded to whistle‑blowers who disclose information to the IGT.  That followed a question to the Acting IGT in April 2019 about Mr Boyle’s complaint regarding the ATO’s use of garnishee notices.  Certain findings were made as set out in the report dated June 2020.[148] 

    [148]Exhibit A1: Affidavit of Richard David Boyle, [102], Exhibit 43.

    Mr Boyle’s claim for immunity in respect of counts 1 – 6 and 8 – 15

37. The issue to be determined is whether the s 10(1)(a) immunity protects Mr Boyle from any criminal liability for the conduct which is the subject of counts 1 – 6 and 8 – 15.

38. Section 10(1)(a) of the PID Act is in the following terms:

    10 Protection of disclosers

    (1) If an individual makes a public interest disclosure:

    (a) the individual is not subject to any civil, criminal or administrative liability (including disciplinary action) for making the public interest disclosure; and …

    Section 10(1)(a) confers an immunity from liability upon an individual who ‘makes a public interest disclosure’. If that pre-condition is met, the individual is not subject to any civil, criminal or administrative liability ‘for making the public interest disclosure’.

    Mr Boyle made a ‘public interest disclosure’ on 12 October 2017

39. There is no dispute that Mr Boyle made an internal public interest disclosure on 12 October 2017.

40. Section 8 of the PID Act provides that ‘public interest disclosure’ has the meaning given by Subdivision A of Division 2 of Part 2. Section 26(1) in Subdivision A of Division 2 of Part 2 relevantly states:

    26  Meaning of public interest disclosure

    (1)  A disclosure of information is a public interest disclosure if:

    (a)the disclosure is made by a person (the discloser) who is, or has been, a public official; and

    (b)the recipient of the information is a person of the kind referred to in column 2 of an item of the following table; and

    (c)all the further requirements set out in column 3 of that item are met:

    [The table then follows]

41. In relation to s 26(1)(a), there is no dispute that on 12 October 2017, Mr Boyle, the discloser, was a public official.[149]

    [149]Section 4 of the PID Act defines ‘public official’ to have the meaning given by Subdivision A of Division 3 of Part 4. Section 69 in that Subdivision sets out the requirements for a person to be a ‘public official’.

1. 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.  Over time he formed the belief that the ATO would not investigate his allegations.  That became his solid belief by 24 August 2017.[206]  He collected evidence to substantiate his claims because he believed the ATO would not hold itself to account.[207] In light of the response by Mr Wunsch, Mr Boyle may have been justified in his belief, however, it does not follow that s 10(1)(a) should be construed to protect public officials in the performance of an investigative role which the PID Act does not contemplate they undertake.

   [206]T227 – 228.

   [207]T104, 111, 157, 221, 222, 228, 237.

2. The Applicant’s interpretation of s 10(1)(a) 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. One difficulty with imputing such an intention is that such unlawful conduct may range from minor to egregious.

3. The Applicant sought to limit the range of unlawful conduct that Parliament may have intended to sanction by submitting that, for an individual to be protected, the conduct must reasonably form part of the process of making a public interest disclosure.[208] The Applicant submits that the concept of reasonableness involves a consideration of the seriousness of the disclosable conduct and the relative gravity of the public official’s conduct. The test contemplated by s 10(1)(a) is said to be whether the earlier conduct formed part of the process of making the PID and whether it was reasonable in that regard.[209]

   [208]T329.

   [209]T329.

4. Having considered the text and context of s 10(1)(a), I do not consider the Applicant’s construction of s 10(1)(a) to be open, but even if it was, I do not consider it would best achieve the objects of the PID Act. Rather, I consider that the Applicant’s construction tends to run contrary to the promotion of those objects.

5. One of the objects of the PID Act is to promote the integrity and accountability of the Commonwealth public sector.[210] If Parliament intended that a public official may engage in criminal conduct when preparing a public interest disclosure (perhaps on the basis that it is a lesser evil for a greater good), then a legislative provision which clearly delineated the boundaries of the conduct would be expected in order to preserve that object. On the Applicant’s construction of s 10(1)(a), Parliament has not only contemplated that a public official may engage in such criminal conduct but has also chosen to leave the criminal conduct entirely unregulated. The test proposed by the Applicant to mitigate that result is not a test expressly found in the PID Act, nor is it one that may be implied. A construction of s 10(1)(a) which sanctions public officials engaging in unregulated criminal conduct to gather information/evidence to prepare and support a disclosure does not promote the integrity and accountability of the Commonwealth public sector.

   [210] Section 6(a) of the PID Act.

6. I also do not consider that the Applicant’s construction would best achieve the object set out in s 6(b) which is to encourage and facilitate the making of public interest disclosures by public officials.

7. On one level, the Applicant’s construction of the s 10(1)(a) immunity may be seen to encourage the making of public interest disclosures because public officials would consider themselves protected from any civil, criminal or administrative liability (including disciplinary action) in the gathering of information/evidence to prepare and support their disclosure.  On another level, the Applicant’s construction 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.  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.

8. The Applicant made a submission that his construction would best promote the object in s 6(b) to facilitate the making of public interest disclosures:

   a narrow construction would require that whistle-blowers memorise information for the purpose of preparing a public interest disclosure, even where the information is detailed, complex and voluminous.  The legislature could not have intended that they should be put to such a task or that the accuracy and quality of disclosures should depend on their powers of memory.[211]

   Mr Boyle gave evidence that he took photographs because:

   I would not rely on my memory to remember a list of names and a list of ABN or tax numbers that I could later refer to, to demonstrate the claims I’ve made to my Public Interest Disclosure.[212]

   In relation to count 11, for example, he said:

   It is one of the most comprehensive or complex GIC remission requests and transfers that I had undertaken in the Australian Taxation Office and I don’t believe your proposition that I could memorise and recount this story in any meaningfully accurate way could be done without taking a photograph.[213] 

   Whilst there is some force in the submission that the use of a mobile phone is a convenient way to record information and that may facilitate the preparation of a public interest disclosure (rather than rely on memory), it should be noted that Mr Boyle did not in fact disclose any of the detailed information that he photographed.  Nor did he disclose any details of the conversations that he audio‑recorded.  To the contrary, the only specific conversation which he disclosed in the public interest disclosure was based on his memory of that conversation, not on the transcript of any audio‑recording.[214]  The Applicant’s implied test of ‘reasonableness’ leaves a public official with cold comfort in regard to what may be tolerated in the name of recording information for the purpose of recall and accuracy.

   [211]Written submissions of Applicant dated 25 August 2022, [47].

   [212]T261.

   [213]T273.

   [214]T270 – 271; Exhibit A1: Affidavit of Richard David Boyle, [243] – [244], Exhibit 30, p165.

9. Section 6(c) states that one of the objects of the PID Act is to ensure that public officials who make public interest disclosures are supported and protected from adverse consequences relating to the disclosures. Part 2 of the PID Act is directed toward achieving that object. On the Respondent’s construction of s 10(1)(a), there is an identifiable level of support and protection for an individual who makes a public interest disclosure. The public official is protected from liability in relation to their disclosure of the information. In my view, the Applicant’s construction does not best achieve the object of support and protection. The absence of any legislative demarcation of permissible conduct in the preparation of a public interest disclosure leaves a would-be discloser at risk of failing the test of ‘reasonableness’.

10. Section 6(d) states that an object of the PID Act is to ensure that disclosures by public officials are properly investigated and dealt with. Part 3 of the PID Act is directed toward achieving that object. The Applicant submits that a ‘narrow’ interpretation of the s 10(1)(a) immunity would undermine that objective. Disclosers would be discouraged from giving information or producing documents during a Part 3 investigation for fear of prosecution for unlawfully obtaining the information/documents. One difficulty with that submission is that the unlawful obtaining of information/documents has the potential to undermine the objective that disclosures be properly investigated and dealt with. I agree 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.[215]

    [215]Written submissions of Respondent dated 27 July 2022, [21].

11. I find that the protection of s 10(1)(a) of the PID Act does not extend to protect Mr Boyle from any criminal liability for counts 1 – 6 and 8 – 15 and on that basis, I dismiss the application in relation to those counts.

    [Heading suppressed]

12. [Paragraph 238 suppressed]

13. [Paragraph 239 suppressed][216]

    [216]   [Footnote 216 suppressed].

14. [Paragraph 240 suppressed][217]

    [217][Footnote 217 suppressed].

15. [Paragraph 241 suppressed][218]

    [218][Footnote 218 suppressed].

16. [Paragraph 242 suppressed][219] [220]

    [219][Footnote 219 suppressed].

    [220][Footnote 220 suppressed].

17. [Paragraph 243 suppressed]

18. [Paragraph 244 suppressed]

19. [Paragraph 245 suppressed][221] [222]

    [221]    [Footnote 221 suppressed].

    [222]    [Footnote 222 suppressed].

20. [Paragraph 246 suppressed]

21. [Paragraph 247 suppressed][223]

    [223]    [Footnote 223 suppressed].

22. [Paragraph 248 suppressed][224]

    [224]    [Footnote 224 suppressed].

23. [Paragraph 249 suppressed]

24. [Paragraph 250 suppressed]

25. [Paragraph 251 suppressed][225]

    [225][Footnote 225 suppressed].

26. [Paragraph 252 suppressed][226]

    [226][Footnote 226 suppressed].

27. [Paragraph 253 suppressed]

28. [Paragraph 254 suppressed]

    Mr Boyle’s claim for immunity in respect of counts 16 – 24

29. Mr Boyle claims immunity from any criminal liability pursuant to s 10(1)(a) of the PID Act for uploading photographs of protected information to a ProtonMail server on 27 and 28 February and 3 March 2018 (counts 16 – 24) on the basis that his uploading of that information on each occasion was a public interest disclosure within the meaning of s 26 of the PID Act. He claims to have made legal practitioner disclosures on those dates to his then legal practitioner, Mr Findlay.

    Counts 16 – 24

30. In relation to count 16, Mr Boyle is charged with making a record of protected information by a taxation officer contrary to s 355-25(1)(b)(i) of Schedule 1 of the TAA. He was at home on 22 February 2018 when he took a photograph of the information (count 16) and later uploaded it to the ProtonMail server on 3 March 2018 (count 24). It is a photograph of a document headed ‘Non‑pursuit submission’, and contains the taxpayer’s name (ICP) and ABN, and outlines financial circumstances relevant to an application in relation to the taxpayer’s affairs.[227]

    [227]Exhibit R8: Affidavit of Danielle Suzanne Schultz dated 1 July 2022, Exhibit DSS4, page 61.

31. In relation to counts 17, 18, 19, 22, 23 and 24, Mr Boyle is charged with attempt to disclose protected information to another entity by a taxation officer, contrary to s 11.1(1) of the Criminal Code (Cth) and s 355-25(1)(b)(ii) of Schedule 1 of the Taxation Administration Act 1953 (Cth).

32. In relation to counts 20 and 21, Mr Boyle is charged with two counts of attempt to divulge or communication another person’s tax file number to a third person, contrary to sections 11.1(1) of the Criminal Code (Cth) and 8WB(1)(c) of the Taxation Administration Act 1953 (Cth).

33. In summary,

    ·   Count 17 relates to Mr Boyle uploading the photographed information of CC (which is the subject of count 1) to ProtonMail on 27 February 2018;

    ·   Count 18 relates to Mr Boyle uploading the photographed information of SH (which is the subject of count 2) to ProtonMail on 27 February 2018;

    ·   Count 19 relates to Mr Boyle uploading the photographed information of W&W (which is the subject of count 12) on 27 February 2018;

    ·   Count 20 relates to Mr Boyle uploading the photographed information of CS (which is the subject of count 13) on 27 February 2018;

    ·   Count 21 relates to Mr Boyle uploading the photographed information of BB (which is the subject of count 14) on 27 February 2018;

    ·   Count 22 relates to Mr Boyle uploading the photographed information of BB (which is the subject of count 15) to ProtonMail on 27 February 2018;

    ·   Count 23 relates to Mr Boyle uploading the photographed information of MZ (which is the subject of count 11) to ProtonMail on 28 February 2018;

    ·   Count 24 relates to Mr Boyle uploading the photographed information of ICP (which is the subject of count 16) to ProtonMail on 3 March 2018.

    Legal practitioner disclosures

34. Pursuant to s 26 of the PID Act, one of the four types of public interest disclosures that may be made by an individual is a ‘legal practitioner disclosure’. An individual makes a legal practitioner disclosure if the disclosure is (i) made by a person who is, or has been, a public official; (ii) received by an Australian legal practitioner and (iii) complies with three further requirements which are as follows:

    (a) The disclosure is made for the purpose of obtaining legal advice, or professional assistance, from the recipient in relation to the discloser having made, or proposing to make, a public interest disclosure.

    (b) If the discloser knew, or ought reasonably to have known, that any of the information has a national security or other protective security classification, the recipient holds the appropriate level of security clearance.

    (c)      The information does not consist of, or include, intelligence information.

35. Regarding (i), there is no dispute that Mr Boyle was then a public official.  Regarding (ii), there is no dispute that Mr Findlay was an Australian legal practitioner.  Regarding (iii), the information did not have a national security or other protective security classification as described in (b) nor did the information consist of, or include, intelligence information as described in (c). The only applicable requirement is the first requirement set out in (a). 

    The issues

36. The issues relate to whether Mr Boyle meets the precondition set out in s 10(1)(a) for immunity, that is, whether he made legal practitioner disclosures on 27 and 28 February and 3 March 2018. The two main issues are whether in uploading the photographs he made a ‘disclosure of information’ and if so, whether that disclosure was for the purpose of obtaining legal advice or professional assistance from Mr Findlay in relation to the public interest disclosure he made on 12 October 2017.

37. For the reasons which follow, I do not consider the Applicant has discharged the evidential onus of adducing or pointing to evidence that suggests a reasonable possibility that he made a ‘disclosure of information’.

    The evidence

38. In his first affidavit, Mr Boyle stated that on 18 February 2018 he instructed Mr Findlay to act for him in relation to his unfair dismissal claim, public interest disclosure and the allegations of recording taxpayer information.[228]  He stated that, on Mr Findlay’s legal advice, he uploaded the photographs to his ProtonMail account server.  Mr Findlay advised him to do that for the purpose of providing legal advice in connection with his public interest disclosure so there was a ‘protected, secure and encrypted record of material’ in his possession that could be used in the event of a ‘public interest claim trial’.  Mr Findlay told him that neither he nor anyone else would access the files, other than in legal proceedings related to his public interest disclosure.  Mr Boyle said he uploaded the photographs ‘under legal advice’ and with the genuine belief that the documents were secure on the Proton Server and could not be accessed by anyone else. [229]

    [228]Exhibit A1: Affidavit of Richard David Boyle, [84].

    [229]Exhibit A1: Affidavit of Richard David Boyle, [361] – [368].

39. In his addendum affidavit, Mr Boyle stated that he raised the existence of the photographs with Mr Findlay because he suspected the AFP was going to raid his house.  He believed that there would be reprisals against him including being raided and charged if he did not take a redundancy package.  Mr Findlay advised him to send the documents on the ProtonMail application.  The telephone call with Mr Findlay was a few days before Mr Boyle uploaded the photographs.  He set up an account and understood that the documents would be encrypted when sent.  He burnt the hard copy material shortly after uploading the photographs.[230]

    [230]Exhibit A3: Addendum Affidavit of Richard David Boyle, [50] – [55].

40. In relation to count 16, Mr Boyle gave evidence that he took a photograph of a hard copy document he had in his possession because Mr Findlay asked him to transfer the electronic photographs to the server.[231]  This information was one of numerous examples of poor outcomes for taxpayers involving inexperienced staff which was a topic he had raised in his public interest disclosure on 12 October 2017.[232]

    [231]T191.

    [232]T192.

41. In cross-examination, Mr Boyle gave evidence that he had never heard of ProtonMail before.[233]  Mr Findlay said he would keep the files in the encrypted server for legal purposes, such as for an investigation or court matter, and not open them.[234]  To upload the photographs to the server, Mr Boyle attached the photographs to an email with Mr Findlay’s email address, then pressed the send button.  Mr Findlay confirmed verbally and in writing that he had received a large amount of information and emails from the ProtonMail server.  Mr Boyle believed Mr Findlay kept his word and did not open them.[235]

    [233]    T296.

    [234]T297.

    [235]T297.

42. The Respondent called Mr Findlay to give evidence.  He gave evidence that he was acting for Mr Boyle in relation to a termination of employment matter and that Mr Boyle ‘had documents between him and the ATO but relating specifically to the termination of employment’.[236]  He understood that the purpose of the uploading was for the files to be available, in that Mr Boyle did not know whether he would be able to use his laptop, for example. [237]

    [236]    T312.

    [237]T312.

43. Mr Findlay gave evidence that he specifically told Mr Boyle that he would not open the documents.[238]  Mr Findlay did not want to get ‘caught out with legal professional privilege issues’ which might arise from seeing the documents; he was asked by Mr Boyle to store the documents for him so they were available if needed.[239]  By email on 4 March 2018, Mr Findlay confirmed that the documents had appeared in the ProtonMail box, but he did not intend to open them.  Mr Findlay believed Mr Boyle was sending them on his own account and gave Mr Findlay access to that account.[240]  Mr Boyle sent other documents to him via regular email for review for legal advice.[241]  Mr Findlay was not sure if there were specific discussions on what Mr Boyle would send through to the server.[242]

    [238]T313.

    [239]T314.

    [240]T314.

    [241]T315.

    [242]    T317.

44. In cross-examination, Mr Findlay gave evidence that Mr Boyle informed him that he had employment issues with the ATO.  He advised that he had been suspended because of Code of Conduct breaches and wanted to be prepared to contest any termination.  One of Mr Boyle’s grievances, for which Mr Findlay had been retained, was that the ATO had not investigated his public interest disclosure.  Mr Findlay did not have a record of specific conversations with Mr Boyle about the material being sent via ProtonMail.  They discussed the importance of saving records that related to the potential for him being suspended or terminated.  It was in that context that they had discussions about the material being sent in an encrypted format.  Mr Boyle acted in accordance with the advice.  The records were to be kept in case they were needed in respect of future legal matters.[243]

    [243]T318.

    The Applicant’s submission

1. The Applicant submits that he has discharged the evidential onus of adducing or pointing to evidence that suggests a reasonable possibility that his claim is made out and the Respondent has failed to prove otherwise.[244]

   [244]T343 – 346; Written submissions of Applicant dated 17 October 2022, [195] – [205].

2. The Applicant submits that there was a disclosure made for the purpose of obtaining legal advice in relation to Mr Boyle having made a public interest disclosure on 12 October 2017.  The legal advice does not have to be given immediately upon a lawyer receiving material.  The advice may be deferred until the time comes to open the file.  Mr Findlay agreed not to open the file until it became relevant to later legal proceedings.[245]

   [245]T345.

3. In the alternative, the Applicant submits that there was a disclosure for the purpose of obtaining professional assistance in relation to Mr Boyle having made a public interest disclosure on 12 October 2017.  The information does not have to be revealed for the purpose of professional assistance being provided.  The professional assistance may comprise holding the material until it is required.[246]

   [246]    T345 – 346.

   The Respondent’s submission

4. The Respondent accepts and relies upon Mr Boyle’s evidence that he emailed the photographs to the ProtonMail server on the basis that Mr Findlay was not to look at the information.[247]

   [247]In the criminal proceedings regarding counts 17 - 24, the Respondent must prove that at the time Mr Boyle emailed the photographs, he intended to disclose the protected information to Mr Findlay or intended to divulge or communicate another person’s tax file number to Mr Findlay.  That would seem inconsistent with the evidence heard (and called by the Respondent) in these separate proceedings.  On 19 October 2022, the Respondent invited leaving consideration of the claim for immunity regarding counts 16 – 24 to the very last but subsequently advised on 24 November 2022 that the Respondent was intending to proceed with those charges in the criminal proceedings.

5. The Respondent submits that there was no legal practitioner disclosure because the information was not received by Mr Findlay.  The situation is like a person being handed an envelope with confidential material inside.  The person has access in the sense they have the envelope, but they do not receive the information..[248]

   [248]T369.

6. If there was a disclosure, the Respondent submits that there was no legal practitioner disclosure because the mere holding of material by Mr Findlay was not professional assistance in relation to Mr Boyle having made a public interest disclosure.

7. Further, if there was a disclosure, the Respondent submits that there was no legal practitioner disclosure because the disclosure was not for the purpose of giving legal advice.[249]  The Respondent made the following written submission:

   The respondent submits that, in these circumstances, there was no disclosure of information for the purpose permitted by item 4 of the s 26 definition of a legal practitioner disclosure. The agreement that Findlay would not open the files would have prevented him from legally advising or professionally assisting the applicant in relation to … having made a public interest disclosure, as required by the definition. Whilst it might have assisted the applicant to have Findlay advise him that he had seen that the files had been transferred, this did not amount to legal advice or professional assistance. It did not involve the exercise by Findlay of any legal or professional skill, and indeed, given that it concerned the applicant’s ProtonMail account, the applicant could have checked for himself. It is also beside the point that Findlay advised or endorsed the transfer of files. This establishes no more than that the files were transferred in accordance with legal advice.  That is clearly distinct from the transfer of files for the purpose of legal advice.[250]

   [249]T369.

   [250]    Written submissions of Respondent dated 19 October 2022, [55].

   Mr Boyle’s claim for immunity in respect of counts 17 – 24

8. I do not consider that the Applicant has discharged his evidential onus of adducing or pointing to evidence that suggests a reasonable possibility that his claim in relation to counts 17 – 24 is made out.  He has not discharged his evidential onus regarding the pre-condition for immunity.  By uploading the photographs, Mr Boyle caused Mr Findlay to have possession of the photographs but there was no disclosure of information.

9. An individual does not make a public interest disclosure unless there is a disclosure of information. Pursuant to s 26 of the PID Act, a public interest disclosure is a disclosure of information which meets the requirements set out in s 26(1)(a) – (c). The word ‘disclosure’ or ‘disclose’ is not defined in the PID Act other than to provide that disclose includes re‑disclose.[251]  As set out above at [197], the Macquarie Dictionary definition of ‘disclose’ is ‘to cause to appear; allow to be seen; make known; reveal; to uncover; lay open to review’.[252] Further, s 26(1)(b) requires the recipient of the information to be an Australian legal practitioner. Pursuant to s 8 of the PID Act, a recipient, in relation to a disclosure of information, means the person to whom the information is disclosed.

   [251]Section 8 of the PID Act.

   [252]Written submissions of Respondent dated 27 July 2022, [13].

10. The evidence was unequivocal.  Mr Boyle uploaded the photographs to the ProtonMail server on the clear understanding that Mr Findlay was not to look at them and, in accordance with that understanding, Mr Findlay did not look at them.  There was an understanding that the photographed information may be relevant to unspecified future proceedings but that was unknown.  There was no disclosure of the photographed information at the time nor, on the evidence, was the information ever disclosed to Mr Findlay.  The information contained in the photographs was not made known, revealed, or uncovered. Whilst Mr Findlay had access to the photographs on the server, he was not, and never has been, a recipient of the information in the photographs.

11. On that basis, I find that Mr Boyle did not make a legal practitioner disclosure on 27 or 28 February or 3 March 2018.  I dismiss the application.

12. In the alternative, if those circumstances do amount to a ‘disclosure of information’ by Mr Boyle, I remain of the view that Mr Boyle has not discharged his evidential onus regarding the pre-condition in s 10(1)(a). He has not adduced or pointed to evidence that suggests a reasonable possibility that he made a legal practitioner disclosure on 27 or 28 February or 3 March 2018.

13. First, Mr Boyle has not discharged the onus that the disclosure must be made for the purpose of obtaining legal advice nor that the legal advice must be in relation to Mr Boyle having made the public interest disclosure on 12 October 2017.  Second, even if the provision of the photographs in these circumstances could be for the purpose of obtaining professional assistance (which I doubt), Mr Boyle has not discharged his evidential onus that the professional assistance was in relation to Mr Boyle having made a public interest disclosure on 12 October 2017.

14. Mr Boyle gave evidence that Mr Findlay advised him to upload the photographs for the purpose of providing legal advice in the event of a ‘public interest claim trial’.[253]  The question of what Mr Boyle meant by a ‘public interest claim trial’ was not the subject of evidence.  The evidence leaves me speculating about the nature of such a trial and how that might be a disclosure for the purpose of obtaining legal advice in relation to Mr Boyle having made a public interest disclosure on 12 October 2017.

    [253]Exhibit A1: Affidavit of Richard David Boyle, [364].

15. The uncertainty about the nature of such a trial is compounded by Mr Findlay’s evidence that he was acting for Mr Boyle in relation to a termination of employment matter.[254]  Mr Findlay did not give evidence about a possible ‘public interest claim trial’.  The high point of his evidence was his agreement with the proposition in cross-examination that the records were to be kept in respect of future legal matters.[255]

    [254]    T312.

    [255]    T318.

16. Further, Mr Findlay gave evidence that Mr Boyle did not ask him to give legal advice about the content of the documents.[256]  Whilst Mr Findlay’s memory of his discussions with Mr Boyle was affected by the passage of time, I accept the accuracy of his evidence on this point.  It was consistent with his evidence that he did not look at the uploaded material and was not intending to do so.  Mr Findlay’s evidence was that he did not even know what Mr Boyle was sending.

    [256]T315.

17. There was a paucity of evidence about the nature of the ‘professional assistance’ that was being sought from Mr Findlay.  It does trouble me that in his addendum affidavit, Mr Boyle refers to believing that the AFP was going to search his house and, with that in mind, he uploaded the photographs then destroyed the hard copy material.[257]  That does tend to marry up with the evidence that Mr Findlay gave regarding his understanding that the purpose was for the files to be available because Mr Boyle did not know whether he would be able to use his laptop.[258]

    [257] Exhibit A3: Addendum affidavit of Richard David Boyle, [50] – [54].

    [258]T312.

18. It is plain to me that Mr Boyle did not want the AFP to locate the ATO material that he had at home.  Contrary to Mr Boyle’s evidence, I consider it was his idea, not Mr Findlay’s idea, to use ProtonMail.  I gained the strong impression from Mr Findlay’s evidence that he was not familiar with ProtonMail.  I consider that Mr Boyle wanted to store the material away from the AFP/ATO and to retain ready access to it for whatever might eventuate in the future.  He felt there might be some protection by involving his solicitor.

19. The Application in regard to counts 17 – 24 is dismissed.

    Mr Boyle’s claim for immunity in respect of count 16

20. Mr Boyle is charged with making a record of protected information by taking a photograph of that information on 22 February 2018 (count 16).

21. Mr Boyle is also charged with uploading that photograph to the ProtonMail server on 3 March 2018 (which is count 24).  I have found that in uploading that photograph, he has not discharged the evidential onus that suggests a reasonable possibility that he is an individual who made a legal practitioner disclosure.

22. The first step to Mr Boyle’s claim to immunity for count 16 depends upon him being an individual who ‘makes a public interest disclosure’ within the meaning of s 10(1) of the PID Act.  The public interest disclosure relied upon is a legal practitioner disclosure on 3 March 2018 when he uploaded the photograph to the ProtonMail server (count 24).  I have found that he did not make a legal practitioner disclosure on 3 March 2018.  It follows that he has no immunity for criminal liability for count 16.

23. The Application in regard to count 16 is dismissed.

    Order

    The Applicant’s claim pursuant to s 23 of the PID Act is dismissed.

    
    

48  Discretion not to investigate

(1) Despite section 47, the principal officer of the agency may decide not to investigate the disclosure, or (if the investigation has started) not to investigate the disclosure further, if:

….

(i)    it is impracticable for the disclosure to be investigated:

(i)    because the discloser’s name and contact details have not been disclosed; or

(ii)     because the discloser refuses or fails, or is unable, to give, for the purposes of the investigation, such information or assistance as the person who is or will be conducting the investigation asks the discloser to give; or

(iii)    because of the age of the information.