Laws in Australia that prevent whistleblowers speaking out or leave whistleblowers open to retaliation from the companies accused of wrongdoing need to be changed, according to the lawyer running the class action on behalf of Christmas Island detainees.
Maurice Blackburn principal Andrew Watson said he supported bringing in a US-style system that protects whistleblowers from the backlash of their employer and provides anonymity to those speaking out about wrongdoing.
The call for better whistleblower protection
Whistleblowers who call out corporate corruption in America receive government payouts, but those in Australia face unemployment and an uncertain future.
The US system also allows the corporate watchdog the Securities Exchange Commission to pay bounties to whistleblowers if their tip leads to a fine of more than $1 million being issued.
“In the context of a class action on behalf of Christmas Island detainees, Maurice Blackburn has had to obtain orders from the court in order to speak to whistleblowers without the threat of criminal sanctions,” Mr Watson told the Maurice Blackburn Fairfax Media Class Action Symposium in Sydney.
“In a properly functioning system this should not be a matter requiring a crafted and specific court order but something dealt with by way of general policy,” Mr Watson said.
Whistleblowers should also be able to go to class action firms so victims of illegal behaviour could have some recourse, he said.
It’s a view not shared by a senior lawyer who has represented several corporate defendants in class actions.
Jenny Campbell said she disagreed with Mr Watson’s call to extend whistleblower disclosure to class action firms, as opposed to a corporate regulator.
“The fact is the law has over many many years enshrined the principle that an employee who receives confidential information in the course of their employment is under an obligation to maintain that confidentiality,” Ms Campbell said.
“I struggle with the concept of being able to disclose one private entity’s information to another private entity. And that is what a disclosure to a class action firm would be,” she said.
Maurice Blackburn principal Josh Bornstein, who has represented whistleblowers in Fair Work cases, said whistleblowers often came to Maurice Blackburn because the Australian Securities and Investments Commission was so under resourced.
“Organisations should not be able to contract out of accountability for unlawful conduct and invoke their contracts with staff to silence them to stop that illegal conduct being ventilated,” Mr Bornstein said.
Mr Watson’s and Mr Bornstein’s calls for greater whistleblower protections in Australia was supported by Labaton Sucharow partner Jordan Thomas, who is also a former SEC prosecutor.
Mr Thomas said Australia’s current whistleblowing laws mean that “good guys” who call out wrongdoing by corporate entities are afforded fewer protections than those who have broken the law to participate in a cartel, the conference has heard.
“It strikes me as a little inconsistent,” Mr Thomas said.
“If it’s OK to incentivise them to dob when they’re bad guys, how about doing it for people who are good guys?”
Under Australian law, there are no real protections for whistleblowers of corporate wrongdoing, unless that whistleblower has participated in a cartel.
In those instances, a cartel participant can seek immunity if they reveal their illegal activities to the Australian Competition and Consumer Commission