Co-funded by the European Union

Australia: a decision on protections for whistleblowers

  • Last March, the South Australian district court rendered the first decision under Australia's whistleblowing laws, stating that a former civil servant could not be protected for alleged wrongdoing while collecting evidence to support his revelations about the Australian Taxation Office's unethical and aggressive pursuit of debts.
  • The judgment that caused considerable debate in the country is based on the Court's narrow interpretation of the scope of whistleblower protections, which would apply only to whistleblowing and not to the preceding preparatory conduct.

Mr. Boyle lost his legal bid to be declared immune from prosecution, as the Court denied him protection as a whistleblower. 

He had been charged with 24 offenses, including recording and disclosing protected information, for deciding to gather information about unethical debt collection practices within the Australian Taxation Office (ATO). He made a public interest disclosure and then claimed immunity, relying on section 10 of the Public Interest Disclosure Act 2013 (PID), which states that an individual who makes a public interest disclosure is "not subject to any civil, criminal, or administrative liability (including disciplinary action) for making the public interest disclosure."

The district court held, however, that the PID Act does not specify that whistleblowers must be protected for anything they did while investigating a case or gathering evidence, not prohibiting but also not expressly approving the recording of information by a public official to assist in the making of a public interest disclosure.

In contrast, Mr. Boyle argued that whistleblower protections should also apply to conduct before his disclosures, as the law aims to encourage whistleblowers and ensure their complaints are appropriately investigated.

Boyle appealed the decision before the Supreme Court of South Australia, arguing that the judge took an "unreasonably narrow" interpretation of the act, considering that his conduct was "not reasonably part of the process of making his public interest disclosure."

The decision is highly relevant, as it could broadly affect people reporting corporate wrongdoing.

Attorney General Mark Dreyfus KC, who drafted the PID in 2013, admitted that the law has loopholes and needs reform, advocating for adequate protection for whistleblowers in Australia. 

The government, seeking to improve the whistleblower regime, introduced the Public Interest Disclosure Amendment (Review) Bill 2022, but it has yet to pass the Senate.