ATO whistleblower Richard Boyle considers appeal after Public Interest Disclosure defence fails

Monday's ruling is the first time decade-old whistleblower protection laws have been tested in court and come as the federal government prepares to strengthen protections in May ahead of the National Anti-Corruption Commission's opening.

But the protections designed to protect whistleblowers from reprisal, and introduced in 2013 by Mark Dreyfus who was then also attorney-general, failed to protect Mr Boyle from the criminal conduct committed while compiling his evidence against the Australian Taxation Office.

The ruling in a South Australian court on Monday has been described by advocates as "catastrophic" and "discouraging" to those considering coming forward with allegations of government wrongdoing.

Mr Boyle's legal team, counsel Steven Millsteed KC and junior counsel Lauren Gavranich, are now considering appealing the ruling, which will mean the case will appear before the Supreme Court of South Australia.

Mr Boyle is charged with 24 counts for the release of protected information after he exposed the ATO's introduction of harsher debt-collection tactics to the media.

District Court judge Liesl Kudelka's redacted judgement was released on Thursday after remaining suppressed since Monday.

Judge Kudelka ruled Mr Boyle was not immune from punishment for criminal actions, including recording co-workers without their consent and taking pictures of sensitive government documents and uploading them to an encrypted service, because it was not clearly a part of his public interest disclosure.

The judgement said because the evidence Mr Boyle collected was not explicitly referenced in his public interest disclosure, and saved for evidence to refer to later, it was not covered under the act.

The act outlined no specific protections for his conduct, Judge Kudelka ruled.

"The PID Act does not expressly prohibit or endorse the recording of information by a public official to help formulate a public interest disclosure," the retracted judgement said.

"The PID Act is silent on this aspect.

"The PID Act does not expressly prohibit or endorse the collection of evidence by a public official to support the information contained in their public interest disclosure."

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Human Rights Law Centre senior lawyer Kieran Pender, who has followed the case for years, described the judgement as "catastrophic", saying "it blows a major hole in the protections available to whistleblowers".

"The provision at issue in this case is mirrored in every Australian whistleblowing law, which collectively protect 95 per cent of the Australian workforce, across the private sector and federal, state and territory public sectors," he said.

"This will make it harder for Australians to speak up about human rights violations, government wrongdoing and corporate misdeeds.

"By narrowly interpreting the scope of whistleblower protections as applying only to the act of blowing the whistle and not prior preparatory conduct, this judgement dramatically weakens these protections."

Mr Boyle will now go to trial for the 24 charges if the Attorney-General does not intervene using special ministerial powers.

The charges against Witness K lawyer Bernard Collaery were dropped in July last year after Mr Dreyfus intervened.

Mr Dreyfus said at the time he had formed the view "the prosecution of Mr Collaery should end" after considering the need to protect Australia's national interest.

Mr Collaery is now calling on Mr Dreyfus to "act courageously" and do the same for Richard Boyle.

Mr Dreyfus has previously said the rules should only be used in "exceptional circumstances" when asked by Greens senator David Shoebridge to drop them.

Mr Pender said Australian laws should follow those in the EU, where "all explicitly protect reasonably necessary conduct related to the disclosure".

"Richard Boyle did the right thing in exposing wrongdoing at the tax office. He should be protected, not prosecuted," Mr Pender said.

"This judgement only underscores the need for the Attorney-General Mark Dreyfus KC to drop this case and urgently fix the law.

"Every day that this case continues compounds injustice for Boyle and further undermines whistleblower protections for all Australians. It must end."