OPINION: This article was originally published by The Saturday Paper.

Our system relies on indefinite detention, harsh visa regimes and neo-colonial arrangements with Pacific nations — and the Albanese government is keen to flex its muscles.

In April 2017, Richard Boyle was at the Australian Taxation Office building in Adelaide when his work phone rang. Boyle was a long-time employee of the ATO and had grown increasingly concerned about the draconian debt recovery tactics he and his colleagues were being ordered to deploy against taxpayers. On the other end of the phone was one such taxpayer – later referred to in court documents as “Mr CC”.

Mr CC owed the ATO about $80,000. During that phone call, Mr CC told Boyle he had been hospitalised following a severe illness, which led to his business being shut down. “He had no assets, work or income,” a judge would later recount. “His wife was on maternity leave following the birth of their third child. He was struggling with his mental health due to financial pressures and had attempted suicide.”

Boyle gave Mr CC a reprieve – he exercised his discretion as a debt recovery officer to recommend that the ATO temporarily not pursue the debt, with the monies repayable at a later date. Boyle’s recommendation was accepted. Concerned by the increasingly hardline position being taken at the ATO, however, Boyle did something else once the call ended. The public servant took out his mobile phone and took two photographs of the information on his computer monitor: notes of his call with Mr CC and a case summary.

Boyle would later give evidence that he took the photos to inform a public interest disclosure – a formal whistleblowing report, under federal public sector whistleblowing law – which he intended to make. Boyle said that he wanted the information to assist potential investigators of his disclosure, as he would be unable to memorise it.

He saw Mr CC’s case “as evidence of the concerning cases before the ATO, including the immense stress that ATO issues cause taxpayers, the real risk of harm to taxpayers who are struggling with that stress, and how that harm can eventuate if a case is not actioned efficiently or effectively”.

Boyle believed Mr CC’s case showed the importance of a compassionate, case-by-case approach. In Boyle’s subsequent public interest disclosure, a 10-chapter document submitted six months later, these themes would feature heavily. As a judge would later summarise, the compassion Boyle desired was “in stark contrast with the ATO’s harsh approach at the time”.

Boyle was eventually charged over the picture he took – prohibited by the Taxation Administration Act – and related conduct. On Thursday, at the District Court in Adelaide, not far from the office where Boyle answered that phone call eight years earlier, the saga concluded with a brief sentencing hearing before Judge Liesl Kudelka.

Kudelka observed that Boyle had “genuinely believed” his conduct was necessary for his whistleblowing and thought it was justifiable “for the greater good”. She warned, however, of the risk of endorsing “vigilante justice” or giving a “green light” to whistleblowers committing a crime.

Kudelka accepted that whistleblowing is “not an easy, simple or straightforward thing”. Put “colloquially, blowing the whistle can be a tough gig”, she added. She found there was a “distortion in judgement” in what Boyle did, however, that he could have blown the whistle without committing the criminal offending. She accepted that Boyle’s mental health was poor at the time and this contributed to his decision-making.

Kudelka ordered that Boyle be released from the prosecution without recording a conviction, on the condition of a 12-month good behaviour bond. Standing before the judge to sign the paperwork, Boyle said he wished to “apologise to the court, the community and the victims for taking up their time”.

Kudelka replied that his apology was not needed. “It’s called the wheels of justice,” she said.

In the years since Boyle’s disclosure and subsequent legal fight, the public servant’s case has been one of a number of high-profile prosecutions to shine a spotlight on the plight of whistleblowers in Australia.

Former intelligence officer Witness K pleaded guilty in 2021 to offences relating to disclosing Australia’s espionage against Timor-Leste. K’s solicitor, Bernard Collaery, was only spared trial after then attorney-general Mark Dreyfus, KC, dropped the secrecy-shrouded prosecution in 2022.

Last year, David McBride was sentenced to more than five years’ imprisonment for leaking documents to the ABC that formed the basis of the landmark “Afghan Files” reporting. An appeal to the High Court is pending.

Like these other whistleblowers, Boyle ultimately went public – blowing the whistle as part of a joint investigation by the ABC and the then Fairfax newspapers. The media attention sparked further scrutiny, and some of Boyle’s concerns were ultimately vindicated. The small business ombudsman found “excessive use” of one particular debt recovery tool; the tax ombudsman found “problems” had arisen at “certain localised pockets” of the ATO, particularly the Adelaide office. A Senate inquiry held that Boyle’s whistleblowing had not been properly handled.

Curiously, however, Boyle was not prosecuted for going public. Instead, the charges he faced – initially 66, then dropped to 24 charges, then 19, and ultimately four as part of a plea deal to bring the prosecution to an end – related to his conduct in preparation for blowing the whistle internally.

Boyle was charged with offences relating to taking photos of taxpayer information, including his notes from the call with Mr CC; secretly recording conversations with colleagues; and sending taxpayer information to his lawyer. None of this information was ultimately made public and there was no suggestion he gave this confidential information to the media.

In March 2023, Kudelka found that the whistleblowing immunity in federal law did not protect such preparatory conduct. In the middle of last year an appeal court agreed, adopting a limited construction of the immunity as only applying to the actual act of whistleblowing. The High Court declined to hear a further appeal late last year, leaving Boyle with no protection for his actions. He had been due to face trial in November but struck a plea deal to avoid the prospect of a jail term.

Boyle may be the latest Australian whistleblower to face prosecution, but there is every possibility he will not be the last. After forming government in May 2022, the Albanese government made some initial technical changes to the Public Interest Disclosure Act to coincide with the establishment of the National Anti-Corruption Commission. The promise of more wide-ranging reforms and protections have so far been unfulfilled.

In a discussion paper released by the Attorney-General’s Department in November 2023, the problem with the Boyle case was squarely raised, seeking input on “to what extent, if at all, preparatory acts should be covered by immunities”. The department noted that a review of Queensland whistleblowing laws had recommended some protection for preparatory conduct, and equivalent protections were found in whistleblowing laws overseas.

While the new attorney-general, Michelle Rowland, has indicated her commitment to seeing through the reforms begun by her predecessor, Dreyfus, no sense of timing has been indicated. A review of private sector whistleblowing laws, being led by Treasury, started mid last year – consultation is expected to begin shortly.

Sitting in the dock at the District Court on Thursday, Boyle had the weight of the world – and Australia’s broken whistleblowing laws – on his shoulders. He has spent the best part of a decade with his life on hold. In a speech at the Walkley Awards last year, he said he was “broken, physically, mentally and financially”.

At last, on a rainy day in Adelaide, the saga that began with Mr CC’s phone call came to an end. To Boyle’s supporters, the non-conviction order was a small ray of light, but the work to properly protect Australia’s whistleblowers continues.