You might have missed it, but the ABC ran an unfavourable story, about the ATO, in its ‘Four Corners’ program (aired Mon 9.4.18) and a related article on its website.

There was more than one matter reported on, but the gist of the story is that the ATO can be heavy handed with small business, with ruinous consequences. There’s a suggestion, too, that there is still a toxic culture in ATO (to do with targets – the sort of thing that Banks have got into trouble over). The Four Corners program provoked the ATO to issue a Press Release and an Information Pack, attempting to give the public the ‘full picture’.

Interestingly, the venerable Mr Mark Liebler has weighed in on this, writing a  letter to the Age’s editor (which was published on 11.4.18, in their newspaper, which circulates daily, in Melbourne) saying, amongst other things, that the Inspector General of Taxation is well placed to investigate these matters – either systemic, or individual matters, under his new Ombudsman power).

There is much one might say about all of this, but I decided to look at the first person in the news article: a Mr Boyle and his story, as a ‘whistleblower’, in the ATO. It provides an interesting look at ‘whistleblower’ dynamics and is an interesting case study in whether the proposed ‘whistleblower’ laws, making their way through Parliament, would have helped Mr Boyle. My conclusion is, sadly, they would not have helped.

Allegation that the ATO made excessive use of garnishee notices – Mr Boyle worked in the ATO, as a debt collection officer, and came forward as a whistleblower, saying that, on 8 June 2017, the Adelaide debt collection group were instructed to start issuing garnishee notices ‘on every case’, and it appeared to him that they didn’t care if they ‘hurt members of the community’. Earlier in May, he had received an email, towards the end of the shift that said: “…the last hour of power is upon us… that means you still have time to issue another five garnishees…right?”. This was followed by a face that ‘Emoji’ describes as ‘fearful face’. By late August, Mr Boyle reported that everything had changed, when an email arrived saying that Adelaide had been issuing more standard garnishee notices than anywhere else and a “significant” number were inappropriate.

Whistleblower or rogue – who’ll be the judge – It appears that Mr Boyle has had previous run-ins with the ATO.

  • In 2016 he was reprimanded and had his salary docked for (amongst other things) cancelling interest penalties, without ATO approval (about which, Mr Boyle said he was only trying to assist taxpayers).
  • It seems that Mr Boyle was a kind of Robin Hood, saying he “passionately, and with every fibre of [his] being, tried to assist taxpayers in meeting their tax obligations and to enforce taxpayers who are ripping the country off by not paying their fair share of tax”.
  • He was suspended with pay last September (last year) over another alleged breach of the Public Service Code of Conduct.
  • The ATO tried to settle with him, in February (this year), offering him a payout and a statement of service, with no admission of liability. He decided to knock it back to speak to Four Corners and Fairfax.
  • Since then, the Tax Office has, apparently, suspended Mr Boyle, without pay, and notified him that it plans to sack him.

The raid – about 4 April 2018, and subsequent to Mr Boyle talking to the media, the ATO and Federal Police officers raided Mr Boyle’s home [see further ABC News story].

  • The warrant specifically referred to Four Corners and Fairfax reporter Adele Ferguson [who broke the CBA financial adviser abuse stories, that ultimately lead to the Royal Commission into the Banks, currently in the news]. It alleged that Richard Boyle had illegally taken either originals or copies of taxpayer information, photos of ATO computer screens or emails” prompting Mr Boyle to say that there was some suggestion from the AFP and ATO officers, at his home, that he had committed a crime in speaking to the media.
  • The ATO issued a statement, about this raid, saying that: “Today, swift action was taken, in the execution of a search warrant against an individual in Adelaide, to secure information which we believe was obtained contrary to our secrecy obligations”. Put that way, it sounds justified. But against the background of Mr Boyle’s allegations, it doesn’t look so ‘lily white’.

So what’s going on? – It seems that Mr Boyle was brave in coming forward, without any protection from the proposed Whistleblower legislation. The power imbalance, and blows traded, are reminiscent of Channel 7’s handling of Amber Harrison’s claims (about having an affair with their CEO: Tim Worner).

If you’re like me, you’d like to know who’s right, who’s was going to decide who is right, and what protection (if any) Mr Boyle is going to receive.

Would the new Whistleblower Bill have helped? – To me, this invites inquiry as to whether Mr Boyle would have been protected by the proposed ‘Whistleblower’ Bill (which is covered in Tax Month Article1 & Article2). And, as best I can see, it won’t. The following might help show why.

  1. Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017 – breaks the protection into two parts: that in a new Part IVD of Tax Administration Act 1953 (Tax Act); and the balance in s1317AA (and following) of the Corporations Act 2001 (Corps Act).
  2. The Tax Act protection doesn’t seem applicable, at all. Disclosure can only be made to the Commissioner of Taxation, who hardly seems appropriate, for a complaint about conduct in the Commissioner’s office (see proposed s14ZZT(1)(b) of the Tax Act). Also, the object of the ‘protected’ disclosures are, in essence, taxpayers (not the Commissioner, himself, or his office). This follows from proposed s14ZZT(1)(a), which says that a ‘protected’ disclosure has to be “in relation to an entity” as defined in the ITAA97 (s960-100(1)).
  3. Neither do the proposed Corps Act changes seem to assist. A ‘protected’ disclosure has to be about a ‘regulated entity’ (proposed s1317AA(1)(a)) who are companies, banks, life insurers and super funds etc (proposed s1317AAB) and not Commonwealth officers, such as the Commissioner of Taxation. Also, ‘eligible recipients’ are largely in-house people (directors, auditors and the like) and do not include journalists, unless its an ’emergency disclosure’. Unhelpfully, this doesn’t allow a whistleblower to go directly to the media. Under the proposed s1317AAD, an emergency disclosure requires the discloser to have first made a disclosure to one of the ‘in-house’ type eligible recipients (ss(1)(a)), and then, after a reasonable time, have given them a warning that the whistleblower intends to make an ’emergency disclosure’ (ss(1)(d)). Further, there is a high test of what is an emergency. Subsection (1)(c) requires that: “the discloser has reasonable grounds to believe that there is an imminent risk of serious harm or danger to public health or safety, or to the financial system, if the information is not acted on immediately” (ss(1)(c)). It is unlikely that the ATO conduct, that Mr Boyle was concerned about (alleged excessive use of garnishee notices) would pass this test. For instance, it would be unlikely to cause ‘serious harm’ to the ‘financial system’.

It is, perhaps, these sorts of deficiencies that caused the Senate Committee some considerable level of misgivings before hesitatingly recommending that it be passed.

11.4.18

[FJM; LTN 67, 10/4/18; LTN 68, 11/4/18; Tax Month April 2018]

 

Study questions (answers provided)

  1. Did the ABC news story cover the story of an ATO debt collection officer, who was concerned that his department was directed to issue garnishee notices in every case?
  2. Had the ‘whistleblower’ been fired by the ATO, at the time of these news stories?
  3. Did the ATO and AFP raid the whistleblowers home?
  4. Was this before he talked to the media?
  5. Would the Tax part of the new ‘Whistleblower’ bill have protected Mr Boyle?
  6. Would the Corporations Act part of the new Bill have protected Mr Boyle?

 

 

[answers:1.yes;2.no(ButIt’sComing);3.yes;4.no(after);5.no(onlyDisclosuresToCommissionerAboutTaxpayers);

6.no(NotDisclosuresAboutTheCommissionerAndNotDirectlyToTheMedia)]

 

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