Prosecutor considering dropping charges against ATO whistleblower Richard Boyle

© Provided by The Guardian Photograph: Kelly Barnes/AAP

Prosecutors are considering dropping charges against tax office whistleblower Richard Boyle, a move that critics say would prevent a “huge injustice”.

Boyle, a former employee of the Australian Taxation Office, blew the whistle to the ABC in 2018 on the agency’s use of aggressive tactics to recover debts from small business owners, which crippled the livelihoods of many.

He has since been charged with a range of offences, including allegedly photographing protected information, disclosing protected information, and unlawfully using listening devices to record conversations with other ATO employees.

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Boyle argues he acted in line with the nation’s whistleblowing laws by first raising his concerns internally in 2017, and only going public a year later after being unsatisfied with the ATO’s response. The Senate has previously held a secret inquiry examining the ATO’s response to Boyle’s initial complaint and found last year that it was “superficial”.

© Photograph: Kelly Barnes/AAP Australian Taxation Office whistleblower Richard Boyle has been charged with 24 offences related to his informing the ABC about the ATO’s aggressive tactics with small business owners.

On Tuesday night, the commonwealth director of public prosecutions, Sarah McNaughton, told Senate estimates that the CDPP was now considering whether or not it should drop the charges against Boyle.

“We can indicate that we have received materials and that includes a copy of the Senate report,” McNaughton said. “I can also indicate that we have indicated to the court that we will be considering these matters in relation to whether or not the matters should be no-billed (discontinued) within three weeks from the 10th of March.

“We are considering whether or not it should continue, and that decision we have indicated to the court we hope to be making by the 31st of March, and beyond that I’m really not in a position to comment.”

McNaughton was responding to questioning by independent senator Rex Patrick.

Patrick later told the Guardian that discontinuing the case would stop a “huge injustice”.

“Mr Boyle acted courageously in the public interest only to find himself charged and before a court,” Patrick said. “A huge injustice would occur if the prosecution were allowed to continue.”

“It is not in the public interest to prosecute whistleblowers. Mr Boyle is not out of the woods yet, but the CDPP’s reconsideration of the prosecution is a very good thing.”

Boyle is only one of a handful of whistleblowers facing criminal prosecution. Barrister Bernard Collaery and his client, intelligence officer Witness K, are facing court for their role in exposing Australia’s bugging of ally Timor-Leste during sensitive oil and gas negotiations. Former military lawyer David McBride – who handed over a trove of internal defence documents to the ABC, forming the basis of a series on war crimes – is also facing prosecution.

Boyle was initially charged with 66 offences, including allegedly photographing protected information, disclosing protected information, and unlawfully using listening devices to record conversations with other ATO employees.

The commonwealth director of public prosecutions later reduced the number of charges from 66 to 24, but indicated last year it would proceed with the remaining 24.

The CDPP was at pains on Tuesday night to make clear no decision had yet been made on the future prosecution of Boyle.

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Australia’s whistleblowing laws can protect individuals who go public with their allegations if they have first made an effort to raise their concerns internally, but reasonably believe the response to be inadequate.

In 2017, Boyle submitted a detailed and comprehensive public interest disclosure warning of the dangers of the ATO’s use of garnishee notices, which allow for the direct removal of money from a company’s bank account or direct collection from a company’s debtors.

The Senate economics legislation committee in 2019 examined the ATO’s response during secret hearings. Last year, it released a short statement about what it had found.

“Based on the evidence received from witnesses, and in particular from the commonwealth ombudsman, the committee is concerned that the standard of the ATO’s investigation could appear to the public to be superficial in addressing the concerns raised by ATO whistleblowers,” it said in a document tabled in the Senate.