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Michael Murray is an Australian author and commentator on corporate and personal insolvency law and related policy and law reform, in Australia and internationally. No legal advice is offered or given.

Obligations to whistleblow

Journalists and accountants among others are obliged by NSW law to ‘whistleblow’ – to report to the police – if they know of the commission of serious criminal offences.

These and other issues about whistleblowing, including a forthcoming public debate on 25 March, are discussed in this article.

A charge of misprision of treason against the Attorney-General for the State of South Australia was recently dismissed, summarily, [1] one good reason being that it was, historically, the offence of not reporting a potential insurrection against the reigning English monarch, and it no longer exists in modern law, except perhaps in NSW.

Misprision of treason and misprision of felony (not reporting a felonious offence) were early forms of compulsory whistleblowing, both now abolished.

Whistleblowing involves a person knowing of internal misconduct or a crime, then disclosing it to the authorities. Various ‘protections’ are given the person for doing so, if they be necessary, including protection from persecution for having blown the whistle. While one might think that whistleblowing would be welcomed – one study showed that a majority of whistleblowers said they were treated ‘the same or well’ following their whistleblowing[2] – it is often not.[3]

The focus of this article is on circumstances where, as with misprision, a person is obliged to whistleblow, either legally, or professionally, or from a moral perspective.

Legal obligations

While the offence of misprision of felony has been abolished, because it was seen to be too harsh, it has been replaced by laws that require, in addition, some benefit for the person who knew of the felony.

That is, except in NSW.

NSW did repeal the common law offence of misprision[4] but replaced with it with an equivalent offence, of concealing a serious indictable offence, under s 316 of the NSW Crimes Act.[5.

The offence is committed if A, who knows or believes that a serious indictable offence has been committed by B, and who knows or believes that they have information that might be of material assistance in securing the apprehension, prosecution or conviction of B, fails without reasonable excuse to bring that information to the attention of the NSW Police or other appropriate authority.

Up to five years jail can be imposed.

There is a separate offence under s 316A of failing to report a child abuse offence.[6]

DPP discretion

Perhaps in deference to the perceived harshness of the offences, the sections require the DPP to approve any prosecution of certain professionals who would be more likely to become aware of such crimes.[7]

These are legal and medical practitioners, psychologists and nurses, social workers including support workers for victims of crime and counsellors who treats persons for emotional or psychological conditions, members of the clergy, researchers for professional or academic purposes, school teachers and principals (in some cases) and arbitrators and mediators.[8]

No protection for journalists or accountants

Two professionals excluded from the statutory protection under s 316 are journalists and accountants. If a journalist or an accountant has relevant knowledge of a relevant offence, they are liable to prosecution if they do not report it.

Hence, in NSW at least, the right to whistleblow is secondary to the prior obligation to report.

In 2000, the NSW Law Reform Commission recommended, by majority, that s 316 be abolished as being unfair in some cases, including in its use by police against witnesses to crimes, but this was not accepted.[9]

A minority view was that the notion underlying the section, that ‘assistance to the authorities in the detection and proof of serious crimes is a civic duty, indeed, it is an essential part of the maintenance of law is a valid one’, although it did ‘not follow that its performance should be compelled by a criminal sanction’.

A more serious example is that of a person witnessing a murder. The US reports a conviction of misprision of a person who refused to give the police information regarding the murder because he feared for his life.[10]

Accountants

Then there are the accountants, who have taken it upon themselves to report what they call ‘non-compliance with laws and regulations’ – or NOCLAR – by their clients or employers.[12] This professional obligation put out by the APESB is not couched in legal terms but, in the context of the work of accountants, it could require accountants to report wage and tax theft, financial and creditor abuse, money laundering, insolvent trading, and director misconduct.

Many an accounting staff member of an accounting firm, or working in-house in a business or government agency, now has an obligation to report. That is on top of their obligation under the NSW Crimes Act.

Given accountants’ deep involvement in business, across many sectors, their obligations to report should be a useful regulatory tool.

In insolvency practice, liquidator and bankruptcy trustee accountants have statutory responsibilities to report, although the 8,000 offences reported to ASIC each year is indicative of a lack of materiality in the relevant law.

Enforcement of accountants’ compliance?

APESB does not monitor or enforce its standards; the three professional accounting bodies – CAANZ, CPA and IPA – and the regulatory authorities are responsible for this, including conducting disciplinary actions for breaches.

APESB says it engages with the three bodies and ASIC to determine whether the APES standards are being complied with in practice and if further enhancements are required to address specific issues.[13]

In that respect, compliance with NOCLAR and the outcomes is no doubt being monitored by the three professional bodies and the results will be instructive.

Moral obligations

 Each person’s responses to seeing or becoming aware of misconduct or crime will vary.

What if one were to observe an intoxicated parent driving with unrestrained children in the car? Or a bag snatch? Or ‘borrowings’ from petty cash? Or shoplifting? Or being asked to pay cash with the expressed intention of avoiding tax? Or witnessing a homicide?

Thoughts?

In current times, when there have been dramatic disclosures of corporate and banking misconduct, child and aged abuse, wage theft and tax evasion, and now a professional obligation, perhaps there should be a re-focus on what is the proper and legally enforceable obligation of a citizen.

Turning a blind eye may just not be acceptable. 

Whistleblowing debate – 25 March 2020

Getting back to whistleblowing, the Australian Academy of Law is hosting a debate on whistleblowing on 25 March, 5pm, at the Federal Court of Australia, Sydney.

Whistleblowing – what is it, who does it, when is it lawful, when is it mandatory?

Details here.

The panel comprises

  • Professor A J Brown,
  • Professor Robert Deutsch,
  • Ms Connie Carnabuci,
  • Mr Bret Walker SC, and
  • the Hon Justice Julie Ward, Supreme Court of NSW, as chair.

=======================

[1] Haughton v Chapman [2020] SASC 200.

[2] It had its origins in the citizen’s duty to “raise the hue and cry” by reporting crimes, especially felonies, to law enforcement authorities: Misprision of Felony: An Old Concept in a New Context (1966) 52 ABAJ 148, Goldberg.

[3] Brown, A J et al, Clean as a whistle: a five step guide to better whistleblowing policy and practice in business and government. Key findings and actions of Whistling While They Work 2, Brisbane: Griffith University, August 2019. See Figure 9, pp 15-16.

[4] Section 341

[5] Crimes Act 1900 (NSW)

[6] Section 316A; reg 4

[7] Section 316(4).

[8] Crimes Regulations 2015, reg 4.

[9] Review of Section 316 of the Crimes Act 1900 (NSW), NSW Law Reform Commission, 14 January 2000.

[10] State v Carson, 262 S.E.2d 918, 274 S.C. 316 (1980).

[11] Haughton v Chapman [2020] SASC 200.

[12] APES 110 Code of Ethics for Professional Accountants.

[13] APESB submission to the Parliamentary Joint Committee on Corporations and Financial Services’ Inquiry into the Regulation of Auditing in Australia, 28 October 2019.

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