The price of speaking out
Laws governing private sector whistleblowers are full of gaps, writes Ruth Williams.
Lawyer Chris Dale describes it as a sort of excommunication. Shunned by colleagues, ignored by authorities, left financially and emotionally vulnerable – as recently demonstrated by the struggles of the self-described ‘‘ferrets’’ who exposed the Commonwealth Bank financial planning scandal, whistleblowers in Australia often pay a high price for their actions.
Dale, a commercial lawyer, former partner at blue-chip law firm Clayton Utz and past president of the Law Institute of Victoria, has acted for and advised multiple whistleblowers in their legal struggles.
He has now joined calls from whistleblowing, law enforcement and tax justice groups – and, this week, independent senator Nick Xenophon – for increased protections for private sector whistleblowers, arguing the laws are full of gaps.
Xenophon is preparing legislation – to be introduced into the Senate when Parliament resumes after the election – for stronger corporate whistleblower protection laws ‘‘adapted for Australian circumstances’’ but modelled on the US False Claims Act, which offers those who speak out rewards for their efforts.
‘‘At the moment, I have no doubt that there are potential whistleblowers throughout the country who have seen how other previous whistleblowers have had their lives shattered by speaking out and telling the truth,’’ Xenophon said.
His concerns are echoed by Dale. ‘‘There’s all sorts of consequences [for speaking out] that are very real.’’
Dale speaks as a lawyer who advises whistleblowers. But Dale, who is suing Clayton Utz for alleged unlawful termination of his partnership, also has personal experience in exposing closely-guarded information.
In 2006, Dale – ousted from Clayton Utz in bitter circumstances the year before – leaked explosive documents about the firm’s defence of British American Tobacco Australia against a lawsuit by late lung cancer victim Rolah McCabe.
Four years earlier, the Victorian Supreme Court struck out the tobacco company’s defence to McCabe’s lawsuit, on the grounds that it – along with its lawyers, Clayton Utz – had subverted the process of discovery, with the ‘‘deliberate intention’’ of denying McCabe a fair trial.
Justice Geoffrey Eames awarded McCabe $700,000 in damages, but his decision was overturned by the Court of Appeal, which cleared the company and Clayton Utz of wrongdoing.
In 2006, Dale leaked the documents relating to the internal Clayton Utz review to The Sunday Age.
A settlement was struck between the McCabe family and BAT in 2011, after many years of legal wrangling and pro bono work by commercial law firm Arnold Bloch Leibler.
Dale declines to comment on his lawsuit against Clayton Utz, or his actions in the McCabe matter.
But he says that the laws designed to protect corporate whistleblowers leave them vulnerable to being ‘‘blocked or punished’’ by the companies they blow the whistle against.
And he points to many would-be whistleblowers in the private sector – such as business partners of firms, or employees of partnerships, or employees of small businesses – who are not covered at all by the protections set out in the Corporations Act.
‘‘If you look across the whole broad spectrum of the law, you see gaps in the protective legislation, and assumptions being made about – if there is victimisation – the whistleblower’s capacity to fight that,’’ Dale says.
He says the techniques available to the target of the information to silence the whistleblower are many and varied – ‘‘everything from the law of confidentiality to the law of privilege, to the law of employment, to the criminal law ... professional regulation is [also] used as a threat to either stop the further dissemination of information or to punish the whistleblower.
‘‘They’re all used as a means to prevent someone coming forward. And you’ve got to ask the question, is that a good thing? [If] a whistleblower has critical information about some matter of public interest, such that it will prevent harm in a society, then there might be good reasons why that person ought to come forward and seek to disseminate that information, knowing that if they do so internally it will be suppressed and they will be sidelined.
‘‘Is there a public benefit in suppressing that information, when harm will be done by its suppression? You would have to say no.’’
Xenophon says Australia needs to offer stronger protection for whistleblowers in the public and corporate sectors. He intends that his impending legislation modelled on the US False Claims Act – which rewards whistleblowers with a percentage of funds recovered by federal agencies as a result of their information – will spark a Senate inquiry into the draft laws.
‘‘It won’t be exactly the same mechanism [as the False Claims Act] but it needs to be on the basis that people aren’t worse off, that their incomes are protected and they are protected from any adverse consequences of speaking out,’’ Xenophon says.
Jeff Morris and the other self-described ‘‘ferrets’’ who exposed misconduct by Commonwealth Bank’s financial planners were left stressed and disillusioned after their repeated warnings to the corporate regulator went unheeded for more than a year.
Last week, in a submission to a parliamentary inquiry into its performance on the CBA scandal and other matters, the Australian Securities and Investments Commission admitted its communication with the CBA whistleblowers was inadequate. The regulator is now reviewing its whistleblower policy.
‘‘Whistleblowers often ask themselves, when they are going through all these traumatising events, ‘why did I do it?’’’ Dale says. ‘‘They are usually left with the conclusion that the public good justified what they did and that somehow or other the truth will prevail and equilibrium will be restored.’’
Dale is himself regarded as a whistleblower by some. Arnold Bloch Leibler partner Leon Zwier – who headed that firm’s pro bono work on the McCabe case – believes Dale is a ‘‘hero’’. ‘‘He took on two of the most powerful institutions – British American Tobacco and Clayton Utz,’’ he says.
But not all agree. Clayton Utz has accused Dale of leaking the McCabe documents solely to damage the firm following his ousting.
According to evidence given to the Supreme Court this year, Clayton Utz sacked Dale for an alleged breach of the firm’s pro bono policy, in a matter in which Dale denies any wrongdoing. His departure also followed a police investigation into another client matter involving former barrister and policeman Kerry Milte. Dale, who was never charged over the affair, has also denied any wrongdoing in that matter.
Clayton Utz declined to comment while the case was before the courts. In the past, it has said Dale’s departure followed a unanimous vote by the board, and was not connected to the McCabe case. It has said it would vigorously defend Dale’s proceedings.
This year, Dale sought an injunction to stop Clayton Utz from hiring Allan Myers, QC, in the firm’s defence of Dale’s lawsuit, on the grounds Dale had discussed his situation with Myers in 2004.
In a Supreme Court hearing in January, Clayton Utz sought to question Dale’s credibility as a witness by arguing that he lied to the media in 2007, when he said he leaked the McCabe review because he was pushed by his conscience to act on ‘‘a miscarriage of justice’’.
But Justice Elizabeth Hollingworth, who granted the injunction, accepted Dale’s account that he was ‘‘genuinely troubled’’ about the McCabe matter, and agreed that he ‘‘went to the media because he thought it was the morally right thing to do’’.
While the federal government has pledged to reform protections for public servant whistleblowers – with legislation now before Parliament – the protections offered to private sector whistleblowers under the Corporations Act were last updated in 2004.
In 2009, a Treasury paper pointed to gaping holes in the laws, and then corporate law minister Chris Bowen – now federal Treasurer – said they contained ‘‘fundamental shortcomings’’. The concerns raised by Treasury in 2009 echo some of those raised by Dale – including the gaps in who is covered by the laws.
Before the election, the government was understood to be weighing the options to increase protections for private sector whistleblowers. BusinessDay revealed in June that the Attorney-General’s Department was examining potential reforms modelled on the False Claims Act, the same laws under consideration by Xenophon. Under those laws, hundreds of whistleblowers in the US have received cash rewards – often as much as several millions of dollars – for their effort, while US agencies recovered $US4.9 billion last year alone as a result of tip-offs.
Ben Allen, a partner at Norton Rose Fulbright, says False Claims Act-type laws would encourage whistleblowing against fraud in the private sector that was ‘‘ultimately costing millions, if not billions, of taxpayer dollars each year’’.
This approach has the backing of groups including the Australian Federal Police Association and the Tax Justice Network.
Dale, however, argues that it is not in the Australian psyche to ‘‘handsomely reward’’ whistleblowers. ‘‘America has a different philosophical view of free enterprise that we, perhaps, don’t share here,’’ he says.
‘‘But we can at least see in a system like that that the whistleblower isn’t marginalised and left in a position that, having made a moral sacrifice, it’s become an economic sacrifice for the rest of their working lives.’’