The attorney general, Michaelia Cash, says she will consider serious concerns raised about the prosecution of tax office whistleblower Richard Boyle, including that the case harms the public interest by scaring other whistleblowers into silence.
The Commonwealth Director of Public Prosecutions is planning to forge ahead with its prosecution of Boyle, a former tax office worker who blew the whistle on his agency’s inappropriate and unethical use of garnishee powers to pursue small business owners for debts.
Boyle attempted to blow the whistle internally, as required by Australia’s Public Interest Disclosure Act, but was met with a response that a Senate inquiry has since found to be “superficial”.
He took his concerns to the watchdog, the Inspector General of Taxation, but again was met with an inadequate response.
Boyle then took his concerns public, to the ABC’s Four Corners, and is now being prosecuted for a range of offences, including the unlawful disclosure of taxpayer information.
Boyle is now before the South Australian district court and the CDPP, after considering dropping the case, has recently confirmed it will proceed to trial later this year.
The independent senator Rex Patrick raised the case in Senate estimates on Thursday night, asking Cash whether she would consider using powers contained in the Judiciary Act to have the prosecution discontinued.
He said the treatment of Boyle would clearly dissuade other whistleblowers from coming forward.
“You have an overriding role and I accept the bar is very, very high, but you can perhaps see in the circumstances of this particular case … noting the really significant chilling effect that this may have on the government’s whistleblowing policies … I wonder whether it really is in the public interest to continue with this particular prosecution?” Patrick said.
Cash said the CDPP had made an independent decision to prosecute, acting in line with the commonwealth’s prosecution policy, which requires a prima facie case, a reasonable prospect of conviction, and the satisfaction of a public interest test.
Patrick argued the CDPP had considered the public interest in a narrow sense, and not properly considered the chilling effect the prosecution would have on other whistleblowers.
Cash expressed scepticism about the potential use of her powers to intervene.
But she said she would consider the matter that Patrick had raised.
“You would also be aware of the fact that the exercise of these powers is reserved for very unusual and exceptional circumstances, and I am actually advised that s71(1) of the Judiciary Act, which predates the CDPP, has not been used since the CDPP was established,” she said.
“I will consider further the issues you have raised, but they are the points I would make.”
Patrick sought clarification that Cash would “at least consider what I have put to you today”.
“I will have a look at what you have referred to but I’ve made it very clear the prosecution was brought because the Commonwealth Director of Public Prosecutions made an independent decision.”
Later, Patrick told the Guardian that it was clear from the exchange that the CDPP had not fully considered the public interest in prosecuting Boyle.
“It did not include the chilling effect that this prosecution would have across the commonwealth in relation to whistleblowers,” he said.
“I sensed that the minister picked up on that issue and it’s clear that she was going to consider the conversation.
“Whilst the minister ruled out exercising her statutory powers, her prosecution oversight powers, it appeared to me as though she was prepared to engage with the CDPP to perhaps have them consider broadening their public interest consideration.”