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Whistleblower Protection in South Australia

Jennifer Jones

October 2020

In a thriving Democracy it is necessary for people to have trust in the government of the day; we need to trust that the things the government does in our name are in the best interests of the country, of its people, and, I would argue, are honourable in nature.

We need a free press to ensure that governments are held accountable, and, when all else fails, we need honourable individuals to call out behaviour that is unacceptable in a civilised world. This may involve actions taken by public departments, such as the Australian Tax Office, or actions taken by our Armed Forces when they are overseas, serving in our name. Whichever scenario is involved, it is essential that whistleblowers are not punished in extreme measure for doing the honourable, decent thing, even if doing so contravenes a confidentiality agreement, or even breaks the law.

The question arises, how are whistleblowers to be protected from extreme responses when they reveal secrets that the government would rather keep hidden? The attempts to shut down the press and whistleblowers has been clearly seen on the national stage in recent months, concerning heinous acts perpetrated by our Armed Forces on innocent civilians in foreign lands. Intimidation tactics have been used by our Government in search and seizure operations on newspaper premises ,and even on journalists' homes.

For individual whistleblowers the outcomes have sometimes been even worse; Witness J for example, was convicted in a secret trial, followed by a secret incarceration of 455 days that we, the public, knew nothing about at the time. How are such actions compatible with a democratic nation, one that claims it is governed by the 'rule of law'? The principle of Habeas Corpus comes into serious question when an Australian citizen can be tried, convicted and imprisoned without the scrutiny of the judiciary, let alone the public.

In South Australia in 2017, Richard Boyle, at the time an ATO debt collection officer, told a joint Four Corners and Fairfax investigation about a "toxic culture" at the ATO in which vulnerable small businesses and individuals were deliberately targeted to help meet revenue goals. In assisting the media investigation, Mr Boyle undertook some activities which mean that he has fallen foul of the law, and may face 66 charges, including using a listening device to monitor a private conversation, recording another person's tax file number and disclosing protected information, which carries the possibility of 161 years in prison.

It is possible that the Public Interest Disclosure Act 2013 may provide Mr Boyle with some protection, but that is as yet untested. The Act specifies its purpose as 'to facilitate disclosure and investigation of wrongdoing and maladministration in the Commonwealth public sector, and for other purposes'. The Act specifies that the Crown is to be bound in 'each of its capacities', but does not make the Crown 'liable to a pecuniary penalty or to be prosecuted for an offence', so the outcome for the wrongdoers remains opaque, while the potential outcomes for the whistleblower, depending on the specifics or her/his actions, can only be described as draconian.

If we want an Australia in which there is trust in our public institutions and our governments, I would argue that we need much clearer, tested, legal protections for whistleblowers.


Contributor Bio: Jennifer is a recent graduate of UniSA Law and strong advocate for human rights in South Australia.  Jennifer has a background in the arts sector, and has achieved strong academic success in a range of law topics, including Environmental & Administrative Law.  Jennifer has been involved in the Rights Resource Network SA since it first began and has actively contributed behind the scenes and in public events, including a 2019 public forum on protesting and the law.


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