Whistleblower Richard Boyle's appeal has been dismissed, meaning he will face trial for exposing serious misconduct within the Australian Taxation Office (ATO).

The South Australian Court of Appeal has upheld a District Court decision that Boyle's preparatory actions before his whistleblowing were not protected under the Public Interest Disclosure Act. 

The judgement, published on Friday, clarified that whistleblower protections only apply to the act of whistleblowing itself, not to necessary preparatory actions. 

This ruling appears to highlight the limited scope of protections available for Australian whistleblowers.

Boyle initially blew the whistle internally, then to oversight bodies, and ultimately went public with his concerns via investigative journalist Adele Ferguson. His disclosures led to multiple independent inquiries that validated his allegations of misconduct within the tax office’s debt recovery team.

In response to the latest court decision, the Human Rights Law Centre says the Albanese Government must urgently reform whistleblower protection laws and establish a whistleblower protection authority.

The Human Rights Law Centre, which runs Australia's first dedicated legal service for whistleblowers, the Whistleblower Project, participated in Boyle's appeal as amicus curiae (friend of the court).

Boyle, first charged in January 2019, now faces trial in September following his unsuccessful appeal. His case is one among several high-profile whistleblower prosecutions, including those of Witness K, Bernard Collaery, and David McBride. 

Each case has led to independent inquiries or litigation that confirmed the whistleblowers' claims of wrongdoing.

“By exposing human rights violations, government wrongdoing, and corporate misdeeds, whistleblowers make Australia a better place,” says Kieran Pender, Senior Lawyer at the Human Rights Law Centre.  

“But the Court of Appeal’s ruling underscores the frail nature of Australia’s whistleblower protections. The continued prosecution of Richard Boyle is not in the public interest and has a chilling effect on prospective whistleblowers. When whistleblowers stay silent, wrongdoing goes unchecked and our democracy suffers.

“Whistleblowers should be protected, not punished. Australia’s whistleblower protection laws are in urgent need of comprehensive, robust reform. 

“Before the last election, the Albanese Government promised to fix federal public sector whistleblowing laws – it must honour that commitment before the end of the current parliamentary term. 

“The government should also commit to establishing a whistleblower protection authority to oversee and enforce whistleblowing laws and support whistleblowers.”

Boyle himself has expressed despair over the predicament faced by whistleblowers. In a social media post, he questioned whether it was worth continuing the fight against corruption, suggesting that institutional abuses by the “so-called elite” may be unstoppable.

Boyle lamented; “When will it be enough for the institutions of government and justice to see what is really going on in the Australian Public Service, and the enormous toll and cost it inflicts upon society, not to mention the hell that is unleashed on public servants themselves?”

The Human Rights Law Centre has welcomed the Independent National Security Legislation Monitor’s (INSLM) recommendations to better balance secrecy and transparency under federal law, and called on the Albanese Government to enact the proposed reform.