Whistleblowers get an ombudsman

This week public consultation on new reforms to our whistleblower laws opens, whilst the government considers strengthening oversight of the system with a whistle-blower ombudsman to provide more protection for those looking to allege wrongdoing but who – with historically just cause – fear the repercussions.

The ombudsman would have oversight of the Public Interest Disclosure Act, which is meant to protect whistleblowers, though whether it does is disputed given how unsuccessful its protections have been when tested in the courts. The ombudsman would have dispute resolution and investigative powers to help.

All of this, though unrelated, comes as ATO whistleblower Richard Boyle avoided conviction and a jail sentence last week, some 7 years after exposing aggressive debt collection practices. Boyle took his allegations against the tax office to the ABC’s Four Corners program in 2018. In placing Boyle on a 12-month good behaviour bond, Judge Liesl Kudelka in the District Court of South Australia said she found Boyle had “engaged in criminal conduct because you genuinely believed at the time that what you were doing was justified for the greater good. However, therein lies the slippery slope.”

Judge Kudelka went on to say that there was “no room in our society for individuals to be able to take the law into their own hands to dispense their own sense of justice,” and that by blowing the whistle on the ATO, Boyle had undermined the integrity and accountability of the commonwealth public sector that he was seeking to protect. It’s a tough gig, the judge said.

“I think it should be recognised that making such a disclosure is not an easy, simple or straightforward thing for an individual to do.” Well, not when you can have the book thrown at you and face a jail term for exposing the unlawful practices of your employer, and not when, as Boyle did, you have gone through all the steps under the Public Interest Disclosure Act and made internal disclosures which were dismissed. The ATO also tried to gag Boyle, with an offer of settlement in 2018 which he refused. It was then he went to the ABC. A few days before Four Corners aired Boyles allegations, the AFP raided his home and the Commonwealth Department of Public Prosecutions drew up a list of 66 criminal charges, only 24 of which proceeded. In the end Boyle accepted a plea deal with the charges reduced to just four related to the actual disclosing of information.

Would the now under consideration Whistleblower Protection Authority Bill 2025 (no 2) which is unlikely to pass the Senate, or a Whistleblower Ombudsman which will sit in the Office of the Commonwealth Ombudsman have helped Richard Boyle? Neither seem likely to relieve the tension between exposing wrongdoing and the illegal steps a whistleblower needs to take to do so.