Thursday, 18 June 2020
Economics Legislation Committee; Report
I present the report of the Senate Economics Legislation Committee on the order for the production of documents by the Australian Taxation Office, and I move:
That the Senate take note of the report.
I will make a few brief remarks here and some more fulsome remarks a little later, when we consider the Senate Economics Committee's report on whistleblowers.
I just want to say at this point that it's important, when dealing with very sensitive issues such as this one, that we have respect across the chamber, including with the crossbenchers. I want to acknowledge the role that Senator Patrick has played in initiating and following through on this particular matter. I also wish to thank the minister for complying with the order for the production of documents, albeit with some restrictions on the information due to its highly sensitive nature. I wish to acknowledge all members of the committee for their sensitive handling of that information. It is important, in doing our jobs, that we acknowledge that some information we seek to look at—I know Senator Patrick is very well aware of this—is highly sensitive. In this case it potentially involves the tax records of individuals and matters which were, rightly, internal to the ATO. I think there is a degree to which this place, particularly the committee system, operates with that high level of trust. So I wish to acknowledge all members of the committee, in particular Senator Patrick, for complying with the trusted nature of the information that we were supplied with in looking at this matter and presenting the short report—the one-page report—on the order for the production of documents to the chamber.
When we're dealing with these matters, in a public policy sense it's very important to strike a correct balance. Not only does justice need to be done; justice needs to be seen to be done. When bodies undertake investigations of highly sensitive information, it's very important that there is trust from the general public in the way that that information is handled. As I said, I'll make some additional remarks a little later on when we deal with the whistleblower report.
I seek leave of the chamber to table some additional information.
I also rise to take note of the report. This OPD basically sought information in relation to the investigation of a public interest disclosure claim by Mr Richard Boyle, who worked for the ATO in Adelaide. The committee had the responsibility of examining whether or not the investigation occurred properly. 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.
But, in the broader picture, it is really important that, if we are to protect whistleblowers, we've got to have strong legislation in place. When someone does blow the whistle, they need the confidence to understand that the matter will be dealt with properly. That's a really important thing. 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. Sometimes that will result in no finding of disclosable conduct. In other cases it might result in disclosable conduct being found and, hopefully, a remedy.
In this situation, on 12 October 2017 Mr Richard Boyle, who worked in the ATO's offices in Adelaide, made a public interest disclosure. It involved, basically, a claim that there had been an unethical directive given by senior leaders in the debt business line of the ATO. What this directive did was to say to ATO officers that, instead of issuing what's called a point-in-time garnishee notice that takes money from a business's account if there's a tax debt, they were to issue what are called enduring garnishee notices, which are very broad and, indeed, ongoing and have the real potential to destroy a business. So there needs to be a much, much higher threshold. The allegation was that the tax office had made this directive in order to be able to meet targets they had for the collection of tax. On 27 October, a short time later, the public interest disclosure was rejected by the ATO. Mr Boyle then, in November of 2017, went to the Inspector-General of Taxation and made a complaint. He redacted all of the information that he wasn't able to disclose to the Inspector-General of Taxation because of secrecy laws, and he lodged a complaint.
Mr Boyle having in effect tried to blow the whistle internally and then go to another authority—albeit not the correct authority; we'll probably talk about this later, but one would think you could go to the Inspector-General of Taxation for tax related matters—the next thing that happened was the airing on television of the ABC Four Corners program 'Mongrel bunch of bastards'. I apologise; that's the ABC's tag for that particular show. It examined whether the ATO was playing by the rules and acting fairly and ethically, and Mr Boyle appeared on that. That caused the government to announce some internal inquiries, and indeed the Inspector-General of Taxation decided to conduct an investigation into the issuing of garnishee notices by the tax office.
On 4 January 2019 or thereabouts, Mr Boyle was charged. He is facing, I think, something like 161 charges in relation to copying and disclosing taxpayers' information to the media. Now that matter's before the court, and I'm not suggesting whether that occurred or not, but it is a point of fact that he was charged. About four months after he was charged, the Inspector-General of Taxation 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 Inspector-General of Taxation, it was found that there were anomalies. This is the important point.
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 might see a fairly significant injustice—once again, I'm not going to whether or not the matters before the courts are justifiable. 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. It's an important issue. I thank Senator Brockman for his chairing of this committee. It was a sensitive matter and I think the committee's done a good job in summarising the situation.
I rise to make a fairly short contribution on the report tabled by Senator Brockman. The Australian Labor Party is ever vigilant to the fact that whistleblowers need appropriate protections, so it was with great interest that I participated in this inquiry. I think that the comments of Senator Brockman and Senator Patrick have appropriately highlighted the sensitivities around it.
Coming from a very non-legal background and having looked at the evidence, heard the witnesses and asked a few questions, I found it abundantly clear that, even if you followed two separate lines—one might be the whistleblower line and the other might be the ATO line—there was a problem. It may have taken artificial intelligence in the form of an algorithm to produce the statistical aberration that pointed to an overuse of the enduring garnishees, but both lines of inquiry agreed on the same outcome: there was a statistical aberration in the Adelaide office or there was a direct instruction in the Adelaide office which had an unusual outcome. According to the ATO office, that had resulted in them attending, investigating and correcting. I am not anywhere legally qualified enough to give any view on how this process should have been enacted, but it would appear to me that, superficially, it's a bit light on in the way the ATO conducted its affairs. Protection of whistleblowers is fundamental to Australian democracy. Talking about the Australian tax office, there is no other area of government that Australians interact with more often, so we need to make sure that in that space whistleblowers are fully protected and able to make disclosures if the system doesn't allow their appropriate views to be heard.
The Greens would also like to make a brief comment on the issue being discussed. I was on the inquiry into whistleblowing protections, and I believe that both houses of parliament put in place substantial reform. I have followed Mr Doyle's case very closely over the years. I wanted to add my support to a resolution of this issue and to protecting whistleblowers and thank the committee for their work.
Question agreed to.