By: Georgie Austin, Natasha Chand and Madeleine Wright

At a glance

  • The High Court of Australia refused whistleblower Richard Boyle’s request for an extension to file an appeal challenging his criminal charges related to ATO disclosures.
  • The Court found Boyle’s appeal had insufficient prospects of success, upholding a previous decision that denied him statutory immunity under the Public Interest Disclosure Act 2013.
  • As a result, Boyle will face trial for 24 alleged offences involving the disclosure of protected ATO information, with potential penalties up to 46 years imprisonment.

Boyle v Commonwealth Director of Public Prosecutions [2024] HCASL 282

On Thursday, 7 November 2024, the High Court of Australia refused whistleblower Richard Boyle’s application requesting an extension of time to file a special leave application appealing a decision made by Judge Kudelka of the District Court of South Australia.

The High Court found that it would be futile to grant the required extension of time because the proposed appeal of the District Court decision “does not enjoy sufficient prospects of success to make it in the interests of the administration of justice”.

Background

Boyle is a former employee of the Australian Tax Office (ATO). After becoming concerned about the ATO’s debt collection tactics, Boyle made an internal public interest disclosure with the ATO on 12 October 2017 to report these concerns. He then made a disclosure to the tax ombudsman before appearing on the ABC program Four Corners to publicly air his complaints.

Boyle was later charged with 24 criminal offences related to recording and disclosing protected information, including recording private conversations with colleagues without their consent and using his mobile to take photos of taxpayer information.

Boyle made a claim for immunity from criminal prosecution pursuant to section 23 of the Public Interest Disclosure Act 2013 (Cth) (PID Act), a legal framework designed to protect public officials who disclose wrongdoing in the public sector. He argued that the PID Act applies not only to the act of disclosure, but also to the steps taken to make that disclosure such as gathering relevant evidence and information.

By judgment dated 27 March 2023, being the judgment the subject of the recent High Court decision, Judge Kudelka of the District Court of South Australia made orders dismissing Boyle’s claim for immunity.1 Judge Kudelka concluded that Boyle was not protected by statutory immunity as his conduct the subject of the criminal charges did not reasonably form part of the process of the making of his internal disclosure on 12 October 2017.

Implications of the High Court decision

The decision of the High Court to refuse special leave means that Judge Kudelka’s decision of 27 March 2023 stands. Boyle will now face a criminal trial for the 24 offences, which carry a maximum sentence of up to 46 years imprisonment.

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1 Boyle v Commonwealth Director of Public Prosecutions [2023] SADC 27.