BOYLE v DIRECTOR OF PUBLIC PROSECUTIONS (CTH)
[2024] SASCA 73
Court of Appeal – Civil: Lovell, Doyle and David JJA
1 LOVELL JA: The respondent accepts that the appellant is a whistle-blower as that term is commonly understood. The appellant disclosed information to an authorised person pursuant to the terms of the Public Interest Disclosure Act 2013 (Cth) ("the Act"). It was common ground on appeal that the appellant's conduct in disclosing the information attracted an immunity from criminal prosecution under the Act. The appellant, however, faces criminal charges, not for the disclosure of information he believed needed to be disclosed, but for his conduct in unlawfully gathering evidence he considered would support his disclosure. The main issue on appeal is whether the appellant's conduct in gathering evidence to support his disclosure of information also attracts the immunity under the Act.
2 I have had the advantage of reading the draft judgment of Doyle JA in relation to Grounds 1 and 2. I agree with his reasons on those grounds. In this judgment I deal with Grounds 3, 4 and 5. I would dismiss the appeal. My reasons follow.
Background
3 The Act establishes a framework for a Commonwealth Government employee to make a public interest disclosure (as defined) to an authorised internal recipient or supervisor if they become aware of disclosable conduct (as defined). This is described as an internal disclosure. The internal recipient of a public interest disclosure is authorised to investigate the disclosure. If the Commonwealth Government employee complies with the framework, they attract under the Act an immunity from criminal, civil or administrative liability for making the disclosure.
4 Apart from an internal disclosure, the Act recognises three other types of disclosure, each of which requires the adoption of a different procedure. In the context of this case, only the legal practitioner disclosure is relevant.
5 The appellant at the relevant times was employed by the Australian Taxation Office ("ATO") as a debt collection officer in the Early Intervention Section of the Debt Business Line. The primary Judge accurately set out in her reasons the full history of the matter. It is not necessary for the disposition of the appeal to repeat it.
6 In summary, the appellant became, to use a neutral phrase, disgruntled and unhappy with a direction to staff to issue Standard Garnishees on taxpayer bank accounts in certain circumstances rather than employ a less harsh regime. The appellant considered that "[d]ebt 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".
