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2020 | OriginalPaper | Buchkapitel

8. Directors Dealing with Whistleblowing

verfasst von : Greg Golding

Erschienen in: Corporate Whistleblowing Regulation

Verlag: Springer Singapore

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Abstract

Increased regulatory focus on the role performed by corporate whistleblowers and how Australian laws should better protect and encourage whistleblowing represents one of the most significant developments in Australian corporate law in recent years, and offers insight into the evolving area of corporate whistleblowing regulation more broadly. Recent wide-ranging reforms to better protect private sector whistleblowing are designed to rewrite the way in which whistleblowing allegations are handled in the corporate context. A revamped victimisation offence, as well as the related compensation right, have significantly complicated the handling of whistleblower complaints and the role played by Australian directors in dealing with such matters. The question arises as to the approach Australian directors should now take in dealing with whistleblowing complaints. In the past it could have been expected that many examples of whistleblower complaints did not reach the boards of major Australian corporations. Key questions to be considered in light of the new regime include whether directors should make changes so that all complaints of material breaches of law made by whistleblowers are notified to the board, and the responsibility of directors for whistleblowing within the context of corporate culture. These issues have potential implications for corporate governance elsewhere, as attitudes to corporate whistleblowing and its management continue to evolve.

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Vorheriges Kapitel The United States Securities and Exchange Commission Whistleblower Program: A Long and Winding Road

Second reading speech 7 December 2017, Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017, Senate Hansard at 10098 (Senator Cormann).

As amended by the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 No. 10, 2019, effective 1 July 2019.

S 1317AI(1)(a),(2)(b). That obligation begins to apply 6 months after the section commenced—s 1644(3).

The application to all public companies is too broad. Many public companies will have no employees. Many public companies may be small businesses or small mutuals. A better approach would have been to apply the requirement to any public company (or group of related bodies corporate that includes a public company) that has, say, more than 50 employees (note that ASIC has a class order exemption power—s 1317AJ).

A large proprietary company is a company that has revenue or gross assets over a monetary threshold or more than 50 employees—Corporations Act s 45A(3). The imposition of this requirement on large proprietary companies seems reasonable. The obligation to comply arises within 6 months of becoming a large proprietary company—s 1317AI(2).

S 1317AI(1)(b), (2)(b).

S 1317AF(5).

Fourth Edition (February 2019), effective for financial years commencing 1 January 2020.

ASX Listing Rule 4.10.

Recommendation 3.3.

A 2010 survey of ASX200 companies had suggested only about one third of surveyed companies then had robust whistleblowing programs—Pascoe and Welsh (2011).

See by way of example Senate Economics References Committee (June 2014) ch 14 (“Corporate whistleblowing; ASIC’s performance and issues with the current protections”).

The Whistling While They Work research project. 634 organisations were surveyed across 18 industry groups in the public, private and not-for-profit sectors. See http://www.whistlingwhiletheywork.edu.au.

Brown and Lawrence (2017).

An Australian Standard had previously been available, although that standard has been withdrawn—see Standards Australia (2003).

A further source of guidance is the International Chamber of Commerce ICC Guidelines on Whistleblowing.

Recommendation 3.3, Commentary.

For more detailed discussion of active steps that directors should consider see Ashcroft et al. (2011).

For discussion of the challenges in developing a compliant culture around whistleblowing see Pascoe (2009).

For discussion see Kaptein and Schwartz (2008).

For a contrarian view that many corporations pay lip service to corporate compliance programs see Kraweic (2003).

For discussion see Dixon (2016).

Having regard to the matters specified in s 317AI(5) and the suggestions for the content of a whistleblowing policy (Box 3.3) in the ASX Corporate Governance Principles.

The Eligible Recipients referred to in s 1317AAC in the corporate context are an officer or senior manager, an auditor and a person authorised by the corporation to receive whistleblower disclosures.

S 1317AAE(1).

S 1317AAE(4).

Ss 1317AAE(2)(a), (b), (c).

ASIC, APRA and the AFP can also disclose the identity of the whistleblower to other federal and state government bodies to assist that body to perform their functions or duties—s 1317AAE(3).

S 1317AAE(2)(d).

Of course, from a policy perspective the legislation would be improved by deleting the words “in relation to the operation of this Part,” on the basis that there should be nothing objectionable in a corporation disclosing the identity of a whistleblower to a legal advisor who is subject to ethical and confidentiality duties in connection with their retainer.

A possible work around to this technical concern is to explicitly provide that the retainer arrangements for the legal advisor extends to both the corporation’s obligations in dealing with the whistleblower under the Corporations Act, and in investigating the conduct disclosed by the whistleblower. The restriction does not state that the disclosure to the legal advisor must be solely for purposes of legal advice on the operation of the whistleblowing provisions of the Corporations Act.

S 1317AAE(2)(f).

Noting that disclosure by a whistleblower to a legal practitioner for the purpose of obtaining legal advice or legal representation in relation to the operation of the whistleblowing provisions of the Corporations Act is itself a protected disclosure—s 1317AA(3).

S 1317AG.

S 1317AC(1).

S 1317AC(2). The threat may be express or implied—s 1317AC(4).

S 1317AC(3).

Footnotes to ss 1317AC(1), (2) and (3).

The criminal offence is 120 penalty units (currently $25,000), or imprisonment for 2 years or both.

The civil penalty regime is contained in Corporations Act Part 9.4B. The legislation makes it clear that civil penalty proceedings can be brought even if a criminal prosecution has not been brought or could not be brought—s 1017AF.

See Comino (2007), Welsh (2004) and Welsh (2009).

S 1317G(1H), (1J). Following the enactment of the Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Act 2019 No. 17, 2019 (effective 13 March 2019), those maximum pecuniary penalties are 5000 penalty units (currently $1,050,000) or 3 times the benefit derived or detriment avoided for an individual (up from $200,000) and 50,000 penalty units (currently $10,500,000) or 3 times the benefit derived or detriment avoided or 10% of annual turnover to 2.5 million penalty units (currently $525 million) for a corporation (up from $1,000,000).

S 1317ADA.

Ss 1317ADA(a), (c) and (d).

Ss 1317ADA(b), (g) and (i).

Ss 1317ADA(e), (f) and (h).

S 1317AADA. This section implements a recommendation of Moss (2016)—see paragraph 1.16 of the Supplementary Explanatory Memorandum: Amendments to be moved on behalf of the Government—Treasury Laws Amendment (Whistleblowers) Bill, December 2018. The Moss Report had noted that Commonwealth agencies had submitted that in the first two years of the Public Interest Disclosure Act the overwhelming majority of public sector whistleblowing disclosures related to issues like workplace bullying, disrespect and minor allegations of wrongdoing—Moss (2016, para 67).

S 1317AADA(1).

S 1317AADA(2). The explicit matters are various contraventions of specific Commonwealth legislation (including the Corporations Act), offences under Commonwealth law punishable by imprisonment of 12 months or more, or that are a danger to the public or the financial system (ss 1317AA(5)(c)–(f)).

The operation of the section is also different from that proposed by the Moss Report for public sector whistleblowing. The Recommendation provided that the authorised officer considering the disclosure should have discretion to treat the matter as a protected disclosure involving a systemic issue (see Recommendation 5 proviso to the Moss Report).

See the penalties and the reference to a company contravention in s 1317AC(3).

At general law, a corporation, as principal of its officers and employees, could have vicarious liability imposed on it in contract and tort. The focus here is to identify when a corporation has direct liability as a legal person under the Corporations Act provisions.

Tesco Supermarkets Ltd v Nattrass [1972] AC 153; Hamilton v Whitehead (1989) 63 ALJR 80 (HC, Mason CJ, Wilson & Toohey JJ).

See for example the analysis in Grantham (2001) and Overland (2010, p. 275).

Meridian Global Funds Management Asia Limited v The Securities Commission [1995] 2 AC 500 (chief investment officer was considered the directing mind and will of a funds management company for the purposes of preparing and lodging substantial shareholding notice disclosure obligations as he had authority within the company to make decisions concerning compliance with those notices). See also the application of this expanded principle in Director General, Department of Education and Training v MT [2006] NSWCA 270 (Spigelman CJ, Ipp JA, Hunt AJA).

R v Commercial Industrial Construction Group [2006] VSCA 181 (Maxwell P, Buchanan and Redlich JJA) at 32.

Criminal Code Part 2.5. The regime applies to all offences provided for in the Criminal Code, unless expressly excluded. This provision derives from Model Criminal Code Chapters 1 and 2—Criminal Law Officers Committee of the Standing Committee of Attorneys-General (1992).

ASIC, in the matter of Whitebox Trading Pty Ltd v Whitebox Trading Pty Ltd [2017] FCAFC 100 (Allsop CJ, Middleton & Bromwich JJ) is authority for the proposition that principles of the Criminal Code do not apply to civil penalty proceedings initiated by ASIC.

Criminal Code s 3.1. These are the required elements for criminal conduct at general law now codified by the Criminal Code (corresponding to the general law elements of actus rea and mens rea).

Criminal Code s 12.2. A question arises as to whether the employee, agent or officer who performs the physical element of the offence must also have the required fault element of the offence—see Davids and Schubert (2011, pp. 107–8).

It therefore follows that if the person is not an employee, agent or officer of the company, the physical element will not be satisfied. For example, conduct of an employee, agent or officer of a subsidiary of a parent entity might not be attributed to the parent entity because of basic principles of separate corporate identity between the parent and its subsidiary—see the principles enunciated in Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549 (Hope & Meagher JJA, Rogers AJA).

Criminal Code s 12.3(1).

Criminal Code s 12.3(2).

Defined as the body exercising the executive authority of the body corporate (Criminal Code s 12.3(b) definition).

Defined as an employee, agent or officer with duties of such responsibility that his or her conduct may fairly be presumed to represent the body’s policy (Criminal Code s 12.3(6) definition).

Criminal Law Officers Committee of the Standing Committee of the Attorneys-General (1992); Criminal Law Officers Committee of the Standing Committee of Attorneys-General (1993, p. 1073).

It has been said that the provisions “remain largely of academic interest through lack of use”—Clough and Mulhern (2002, p. 148).

Criminal Code s 12.3(6) definition.

It has been said that culture is an inherently slippery and legally imprecise concept—for discussion of the ambiguities associated with the term and the factors listed in the s 12.3(6) definition see Colvin and Argent (2016, pp. 36–39) and the materials referred to there.

Explanatory Memorandum to Criminal Code Bill 1994 at 44.

Criminal Code s 12.3(4). It has been suggested that these factors could be construed as necessary elements to establish corporate culture—see Brand (2000, pp. 480–1).

ASIC, Re Chemeq v Chemeq Ltd [2006] FCA 936 (French J).

Ibid at 84–89.

In Chemeq the judge was critical that there was no clear evidence of refresher training.

S 1317AC(3). Involvement in a contravention is defined in Corporations Act s 79 in terms of aiding, abetting, counselling, procuring, inducing, being knowingly concerned in, or conspiring. This offence is also a criminal and civil penalty provision (see notes).

See National Coal Board v Gamble [1959] 1 QB 11 (Lord Goddard, Slade & Devlin JJ).

Johnson v Youden [1950] 1KB 544 (Lord Goddard, Humphreys & Lynsky JJ); Giorgianni v The Queen (1985) 156 CLR 473; Yorke v Lucas (1985) 158 CLR 661.

In Giorgianni v The Queen Gibbs CJ said that the accessory must “in some sort to associate himself with the venture, that he participate in it as something that he wishes to bring about, that he seek by his action to make it succeed” [citing United States v Peoni 100 F 2d 401 (2nd Cir, 1938)].

“A person will be guilty of the offences of aiding and abetting or counselling and procuring the commission of an offence only if he intentionally participates in it. To form the requisite intention he must have knowledge of the essential matters which go to make up the offence whether or not he knows that the matters amount to a crime”.

Yorke v Lucas above, 667 (Mason ACJ, Wilson J, Deane J, Dawson J). See also Giorgianni v The Queen above, 505 (Wilson, Deane, Dawson JJ).

See Rural Press Ltd & Ors v ACCC & Ors [2003] HCA 75, 48 (Gummow J, Hayne J, Heydon J): “In order to know the essential facts … it is not necessary to know that those facts are capable of characterisation in the language of the statute.”

It is clear that the right to compensation arises independently of whether action is taken in relation to the victimisation—s 1317AF. The background material also makes it clear that criminal victimisation need not be established to access compensation rights caused by detriment—see paragraph 1.35 of Supplementary Explanatory Memorandum: Amendments to be moved on behalf of the Government—Treasury Laws Amendment (Whistleblowers) Bill, December 2018.

S 1317AD(i). A threat is very broadly defined for these purposes—ss 1317AD(3), (4).

S 1317AE(1).

S 1317AE(2). This section links the period to the conduct rather than other factors such as social ostracisation (although the section is not expressed to limit the matters the Court may consider).

S 1317AD(2B).

S 1317AH.

For examples of the imposition of the general law test of corporate culpability onto a statutory liability regime see the analysis in Nationwide News Pty Ltd v Naidu & Anor [2007] NSWCA 377 (Spigelman CJ, Beazley JA, Basten JA) and Christian Youth Camps Ltd v Cobaw Community Health Services Ltd [2014] VSCA 75 (Maxwell P, Neave, Redlich JJA). Again, corporate attribution should be assessed by reference to the particular legislation in question, taking into account the language of the statute and its content and policy.

North Sydney Council v Roman [2007] NSWCA 27 (McColl JA, Brysen JA, Basten JA) at 41.

S 1317AE(1)(b).

See for example the approach in McClusky v Karagiozis [2002] FCA 1137.

See the principles enunciated in Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549 (Hope & Meagher JJA, Rogers AJA).

S 1317AD(2A). The whistleblower has the burden of proof in establishing the existence of the duty.

See for example the second reading speech, Hansard House of Representatives, 14 February 2019 at 13439 (Angus Taylor MP).

Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18; Czartyrko v Edith Cowan University [2005] HCA 15.

Smith v The Broken Hill Pty Ltd (1957) 97 CLR 337.

See Koehler v Cerebos Australia [2005] HCA 15; Nationwide News Pty Ltd v Naidu & Anor [2007] NSWCA 377 (Spigelman CJ, Beazley JA, Basten JA) (both cases relating to mental health injury where that that type of harm is a reasonably foreseeable form of injury).

Work Health and Safety Act 2011 (Cwth). Each State and Territory has similar legislation.

S 19. See the inclusive definition of health and safety issues in s 19(3).

See also the unreported whistleblowing case of Wheadon v New South Wales (District Court of NSW, Cooper J, 2 February 2001) described in Dixon (2016, p. 180).

Although the existence of a duty on the part of the employer is a matter that may bear on exculpation from liability, as discussed below.

S 1317AD(2B)(a)(iii).

S 1317AE(3).

Paragraph 1.28 and 1.29 to Supplementary Explanatory Memorandum: Amendments to be moved on behalf of the Government—Treasury Laws Amendment (Whistleblowers) Bill, December 2018.

Ibid. As noted above, the Australian Standard that was previously available has been withdrawn.

Under s 1317AD(2A) a Court “may” make an order in these circumstances.

100

See Tesco Supermarkets Limited v Natrass [1972] AC 153. Also note the comments of the United States Supreme Court in Ernst & Ernst v Hochfelder 425 US 185 (1976) and compare Australian Iron & Steel Pty Limited v Environmental Protection Authority (1992) 29 NSWLR 497 (Court of Criminal Appeal) at 510 (Abadee J).

101

S 1317AD(2). Accessary liability is based on the relatively standard formulation used in the Corporations Act (see for example section 79) of aiding, abetting, procuring, counselling, being knowingly concerned in or conspiracy.

102

The civil and criminal principles for imposing accessory liability are the same—Yorke v Lucas (1985) 158 CLR 661.

103

For more detailed discussion of the duty of care, skill and diligence see Golding (2012, pp. 267–8).

104

Corporations Act s 180. For these provisions, an officer is, among other persons, a director, secretary, a person who makes or participates in the making of decisions that affect the whole or a substantial part of the business of a corporation, a person who has the capacity to affect significantly the financial standing of the corporation, and a person in accordance with whose instructions or wishes the directors are accustomed to act (s 9 definition). As to the scope of the term officer, see Shafron v ASIC [2012] HCA 18 (company secretary and general counsel held to be an officer).

105

Corporations Act s 180(2).

106

Corporations Act s 1317E(1).

107

For discussion see Golding (2012, pp. 268–72).

108

This summary is taken from Golding (2012, pp. 270–1).

109

Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113 at 140 (Spigelman CJ, Handley & Hodgson JA).

110

Daniels v Anderson (1995) 37 NSWLR 438 at 505 (Clarke, Sheller & Powell JJA).

111

Most notably illustrated by the characterisation of the role performed by a chairman with deep experience in a company’s development, as described in Australian Securities and Investments Commission v Rich [2003] NSWSC 85 (Austin J) (the Greaves decision). The Greaves decision was technically only a ruling on ASIC’s statement of claim rather than a liability finding. The defendant ultimately consented to civil penalty orders being made, and as part of the making of those orders the judge applied the analysis of the Greaves decision: see ASIC v Rich [2004] NSWSC 836 at 37–41 (White J). See also the characterisation of a director who is also chief executive officer: Australian Securities and Investments Commission v Vines [2005] NSWSC 738 at 1057–1059 (Austin J). In Shafron v ASIC [2012] HCA 18 at 20 the High Court again adopted a specific characterisation for a company secretary who also acted as general counsel.

112

Daniels v Anderson (1995) 37 NSWLR 438 at 503–4 (Clarke, Sheller & Powell JJA) referring to Francis v United Jersey Bank, 432 A 2d 814 (NJ, 1981).

113

Ibid. This was described in Statewide Tobacco Services Ltd v Morley (1990) 2 ACSR 405 at 431 (SC Vic Ormiston J) as a ‘diligent and intelligent interest’ in the information available to the director or which the directors might request from management and advisors.

114

See Herzberg and Anderson (2012).

115

See discussion in ASIC v Maxwell [2006] NSWSC 1052 (Brereton J); ASIC v Mariner Corporation Limited [2015] FCA (Beach J); ASIC v Cassimatis (No. 8) [2016] FCA 1023 (Edelman J).

116

See Cole (2006).

117

ASIC v Lindberg [2012] VSC 332 (Robson J) and ASIC v Ingleby [2012] VSC 339 (Robson J). In the proceedings against the Chief Executive Officer the Court affirmed an agreed pecuniary penalty of $100,000 and a 3-year disqualification period from managing corporations in relation to the contraventions. In the proceedings against the Chief Financial Officer on appeal by ASIC the penalties finally imposed were a pecuniary penalty of $40,000 and a 15-month disqualification period—ASIC v Ingleby [2013] VSCA 49 (Weinberg & Harper AJA, Hargrave AJA).

118

[2012] VSC 332, at 73 and 121.

119

ASIC v Flugge; ASIC v Geary [2016] VSC 779.

120

ASIC v Flugge (No 2) [2017] VSC 117. A pecuniary penalty of $50,000 and a 5-year disqualification period from managing corporations was imposed. ASIC appealed the decision concerning the senior executive officer. The ASIC appeal was dismissed—ASIC v Geary [2018] VSCA 103 (Ferguson CJ, Weinberg JA, Sifris AJA).

121

[2016] VSC 1890-1.

122

[2016] VSC at 1287-8; at 1902-3.

123

As part of its platform for the 18 May 2019 federal election, the Australian Labor Party promised to enact a unified whistleblower law, establish a whistleblower protection authority, fund a special prosecutor and introduce a whistleblower rewards scheme—see Australian Labor Party (2019).

Ashcroft J, Hanaway C, Griem C (2011) Whistleblowers Cash in, Unwary Corporations Pay. Hofstra L Rev 40:367

Australian Labor Party (2019) Media Release—Labor Will Protect and Reward Banking Whistleblowers. https://www.billshorten.com.au/labor_will_protect_and_reward_banking_whistleblowers_sunday_3_february_2019. Accessed 10 May 2019

Brand V (2000) Legislating for Moral Propriety in Corporations? The Criminal Code Amendment (Bribery of Foreign Public Officials) Act 1999. C&S Law J 18:476

Brown AJ, Lawrence SA (2017) Strength of Organisational Whistleblowing Processes: Analysis from Australia. Further Results from the Whistling While They Work 2 Project. Griffith University, Brisbane

Clough J, Mulhern C (2002) The Prosecution of Corporations. Oxford University Press, Oxford

Cole T (2006) Report of the Inquiry into Certain Australian Companies in Relation to the UN Oil for Food Program. http://www.oilforfoodinquiry.gov.au/agd/WWW/unoilforfoodinquiry.nsf/Page/Report.html. Accessed 10 May 2019

Colvin J, Argent J (2016) Corporate and Personal Liability for ‘Culture’ in Corporations. C&S Law J 34:30

Comino V (2007) The Enforcement Record of ASIC Since the Introduction of the Civil Penalty Regime. Austl J Corp L 20:183

Criminal Law Officers Committee of the Standing Committee of Attorneys-General (1992) Model Criminal Code Chapters 1 and 2—General Principles of Criminal Responsibility. Australian Government Printing Service

Criminal Law Officers Committee of the Standing Committee of Attorneys-General (1993) Final Report—General Principles of Criminal Responsibility. Australian Government Printing Service

Davids C, Schubert G (2011) Criminalising Roreign Bribery: Is Australia’s Bark Louder than Its Bite? Crim Law J 35:98

Dixon O (2016) Honesty Without Fear? Whistleblower Anti-Retaliation Protections in Corporate Codes of Conduct. Melbourne U L Rev 40:168

Golding G (2012) Tightening the Screws on Directors: Care, Delegation and Reliance. UNSWLJ 266

Grantham R (2001) Attributing Responsibility to Corporate Entities: A Doctrinal Approach. C&S Law J 19:168

Herzberg A, Anderson H (2012) Stepping Stones: From Corporate Fault to Director’s Personal Liability. Fed Law Rev 40:181

Kaptein M, Schwartz M (2008) The Effectiveness of Business Codes: A Critical Examination of Existing Studies and the Development of an Integrated Research Model. J Bus Ethics 77:111CrossRef

Kraweic K (2003) Cosmetic Compliance and the Failure of Negotiated Governance. Wash ULQ 81:487

Moss P (2016) Review of the Public Interest Disclosure Act 2013: An Independent Statutory Review Conducted by Philip Moss AM. https://www.pmc.gov.au/sites/default/files/publications/pid-act-2013-review-report.pdf. Accessed 10 May 2019

Overland J (2010) Corporate Liability for Insider Trading: How Does a Company Have the Necessary ‘Mens Rea’. Am J Comp L 24:266 at 275

Pascoe J (2009) Corporate Sector Whistleblowing in Australia; Ethics and Corporate Culture. C&S Law J 27:524

Pascoe G, Welsh M (2011) Whistleblowing, Ethics and Corporate Culture: Theory and Practice in Australia. Comm L World Rev 40:144CrossRef

Senate Economics References Committee (2014) Performance of the Australian Securities and Investments Commission. https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Economics/ASIC/Final_Report/index. Accessed 10 May 2019

Standards Australia (2003) AS 8004-2003 Corporate Governance—Whistleblower Protection Programs for Entities

Welsh M (2004) Eleven Years on—An Examination of ASIC’s Use of an Expanding Civil Penalty Regime. Aust J Corp Law 17:175

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Titel: Directors Dealing with Whistleblowing
verfasst von: Greg Golding
Verlag: Springer Singapore
Buch: Corporate Whistleblowing Regulation
Print ISBN: 978-981-15-0258-3

Electronic ISBN: 978-981-15-0259-0

Copyright-Jahr: 2020
DOI: https://doi.org/10.1007/978-981-15-0259-0_8

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