'Investigating' not covered by whistleblower law: court

Whistleblowers should not "investigate" claims before disclosing corrupt practices to authorities, a court says in its decision to toss an appeal by a former tax office debt collector.

Richard Boyle is being prosecuted after exposing unethical debt recovery practices at the Australian Taxation Office and had sought immunity under the federal public sector whistleblowing law, the Public Interest Disclosure Act.

In March, the South Australian District Court ruled Boyle was not immune from prosecution after it was revealed he took photos of taxpayer information and covertly recorded conversations with ATO colleagues to lodge a whistleblowing case.

He had discovered staff had been instructed to use harsher debt collection tactics on individuals and small businesses, including orders requiring banks to hand over money, sometimes without the permission of the taxpayers.

Supreme Court of SA
Protections refer to "making" a public interest disclosure and not to creating one, a justice says. (Morgan Sette/AAP PHOTOS)

It was alleged that after reporting the conduct through appropriate channels, Boyle shared the photos with a lawyer using a ProtonMail server account.

He was charged with 24 offences over his actions.

In a unanimous Court of Appeal judgment on Wednesday, Supreme Court Justices David Lovell, Samuel Doyle and Sophie David dismissed Boyle's appeal against that decision.

The court's reasons for rejecting the appeal were made public after an interim suppression order was lifted.

The appeal justices dismissed Boyle's claims his case was decided though the District Court's criminal jurisdiction instead of civil proceedings.

"The primary judge commenced by characterising the separate proceedings as civil proceedings, and then reasoned from this that the persuasive onus on the respondent was the civil standard of the balance of probabilities," Justice Doyle said.

Also dismissed were his claims that acts of gathering information to disclose through the proper channels were protected by public disclosure laws, and so he should be afforded immunity.

Justice Lovell said Boyle was entitled to immunity from any criminal liability for "making" the public interest disclosure, rather than creating it.

"It more naturally refers to the act of communicating the relevant information, rather than the process of preparing the relevant information," he said.

"I do not consider that a whistleblower needs an ability to conduct their own investigation (or to otherwise record and collect information and evidence) free from any civil or criminal liability for the whistleblower regime ... to operate effectively," Justice Lovell added.

Boyle's final argument stated that uploading material to the ProtonMail server account and potentially giving his lawyer access, amounted to a "legal practitioner disclosure" and thus attracted the immunity.

But the appeals court justice disagreed.

"On the facts, uploading the material to the ProtonMail server account did not amount to a legal practitioner disclosure as defined under the Act," Justice Lovell said.

Supporters labelled the decision on Wednesday "just another nail in the coffin of whistleblowing here in Australia".

Boyle first raised his concerns through internal ATO processes and then made a complaint to the tax ombudsman before taking part in a joint media investigation.

He is due to stand trial in the SA District Court on September 2.