ATO investigation into whistleblower’s claims ‘superficial’, according to report

By Shannon Jenkins

June 19, 2020

The car parks affair has shown the incalculable value of the ANAO as an instrument for honesty and accountability in public administration.
The car parks affair has shown the incalculable value of the ANAO as an instrument for honesty and accountability in public administration. (Image: Adobe/FiledIMAGE)

The Australian Taxation Office’s investigation into the public interest disclosure made by its former staffer Richard Boyle was “superficial”, the Senate has heard.

It follows the release of findings from a related inquiry into the performance of the Inspector-General of Taxation (IGT).

The Senate Economics Legislation Committee on Thursday handed down its report regarding an order for the production of documents by the ATO. The order, initiated last year by Centre Alliance senator Rex Patrick, related to the ATO’s handling of a public interest disclosure made by Boyle.

The ATO’s investigation into Boyle’s disclosure was not conducted properly, Patrick concluded.

“The finding of the committee in its report is that the investigation was superficial. I’m going to leave it at that, because of the sensitive nature of it. It was a superficial investigation,” he said.

Read more: Lunch with a whistleblower: how laws ‘lure’ public servants into disclosing

In 2017 Boyle made a public interest disclosure to the ATO after his employer allegedly directed him to issue indebted taxpayers with garnishees. The disclosure was rejected, and so Boyle made a complaint to the IGT.

He then went to the media, and has since been slapped with 66 charges, and a maximum sentence of 161 years in prison if found guilty.

Patrick argued certain events — including the Four Corners episode which first aired Boyle’s allegations — wouldn’t have occurred if the ATO had “done its job properly”.

“About four months after [Boyle] was charged, the IGT found that indeed there were anomalies in the Adelaide tax office in relation to garnishee notices. So, in effect, what we saw happening was that a public interest disclosure was made, the whistle was blown, the ATO basically rejected the public interest disclosure, and then, when it was thoroughly investigated by the IGT, it was found that there were anomalies,” he said.

“The ATO’s investigation was superficial, and but for the superficial nature of the ATO’s investigation into Mr Boyle’s public interest disclosure the events that followed—the complaint to the IGT, the media programs, the charges and so forth—would never have occurred.

“We have a situation where someone has blown the whistle, there was a real problem there and they’ve found themselves before a court. If the ATO had only done its job properly none of the alleged activities — they’re alleged at this stage — would have occurred. In fact, in my view, the tax office would have been in a much better situation in that case.”

He argued there was a need for stronger legislation to protect whistleblowers.

“When someone does blow the whistle, they need the confidence to understand that the matter will be dealt with properly … So, whilst this report relates to one particular member of the public, and his case is very public, we need to make sure that, whenever whistleblowers come forward, people do their job properly,” he said.

Read more: Tax commissioner Chris Jordan sticks to his guns, senators say he abused parliamentary privilege in estimates

The Economics Legislation Committee on Wednesday released a separate report into the performance of the IGT.

The inquiry was initiated after Patrick, in April 2019, asked the then-acting IGT Andrew McLoughlin whether Boyle had lodged a complaint with the entity regarding the ATO’s use of garnishee notices.

The committee’s final report made 16 recommendations, including for the rights of tax officials who are interviewed during investigations undertaken by the Inspector-General of Taxation and Taxation Ombudsman (IGTO) to be clarified, and that protections afforded to them be strengthened.

An independent review of the Public Interest Disclosure Act should be undertaken in 2021, the report said, and the IGTO should be made an investigative agency under the act. It was suggested a single whistleblower authority be established.

The committee also called for the federal government to:

  • assess whether the IGTO is adequately resourced to perform its dual role, and whether alternative portfolio arrangements could improve independence,
  • consider strengthening protections available to individuals who disclose information to the IGTO,
  • clarify which entities are responsible for investigating and prosecuting offences under the IGT Act,
  • remove the requirement for the Tax Commissioner to authorise disclosures by tax officers if an IGTO review has either commenced or is being contemplated.

Boyle has previously taken aim at the IGT for its investigation into his claims against the ATO, claiming the review was “of such a significant distortion of the facts that they are either intolerably unsatisfactory, or more concerningly, may indicate an unwillingness of the IGT to form an independent, open and transparent analysis of facts provided to them”.

In a submission to the inquiry, the IGT called for greater powers to protect whistleblowers, award compensation and participate in cross-agency investigations.

Read more: “Significant distortion”: Whistleblower Richard Boyle claims watchdog botched its ATO garnishee scandal review


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