Last week’s conviction and (weekend) gaoling of flamboyant stockbroker Rene Rivkin for insider trading, and today’s conviction and sentencing to one years’ imprisonment of Queensland Chief Magistrate Di Fingleton for interfering with a witness, may cumulatively be quite significant. Both involve high profile people being convicted of white collar crimes and being seen to suffer a serious penalty, for conduct that seems in many ways not all that different from what others in similar positions do on a daily basis. There’s a powerful message to middle class shonkies that it’s not only street crime that may merit prison.
Despite Rivkin’s self-lacerating appearances with Andrew Denton on ABC TV’s Enough Rope (as to which see this great piece by Bright Cold Matt), I actually feel a bit sorry for him. Rivkin’s conduct was just about as piddling an example of insider trading as you can possibly imagine, and didn’t deserve imprisonment on any normal sentencing proportionality principle. On the other hand, especially given the almost complete lack of corporate ethics exhibited in HIH, OneTel, AMP et al, it’s hard to argue against sending a strong general deterrent message to the shonks at the Big End of Town.
Fingleton is another kettle of fish. I confess I haven’t been following the case closely. In fact I don’t know much more than the facts reported in today’s Brisbane Courier Mail:
The case centres on an e-mail from Fingleton that allegedly threatened to demote Co-ordinating Magistrate Basil Gribbin over his support for Magistrate Anne Thacker in an affidavit tendered at a judicial committee review of Fingleton’s decision to transfer her.
This seems on its face to be much more serious conduct than Rivkin’s (to the extent comparisons are valid); an example of naked thuggery and bullying intimidation by a senior judicial executive who ought to have known better. Her imprisonment sends a powerful message to others in the public sector who might be tempted to stand over “whistleblowers”: you might end up in prison.
As a public lawyer I applaud this decision at least in principle (despite not knowing enough about the facts to put it any more strongly). Whistleblower protection laws are one area of Australia’s public sector accountability regime that has manifestly failed. As this recent article by Kim Sawyer in The Age observed:
Australia, in particular, has failed its whistleblowers. The first whistleblower act was passed in South Australia in 1993, and legislation now extends to most states and territories. There is also narrowly defined federal legislation.
Most of the whistleblowing acts have penalties for victimisation. …
But they have one thing in common. There has not been a single prosecution under any Australian whistleblowing act. Whistleblowers simply do not use the legislation. And with good reason.The various legislations are not credible, because they are never enforced.
Sawyer compares Australia’s record of whistleblower protection unfavourably with the US. Maybe the Fingleton decision marks the beginning of real protection for public sector whistleblowers, with all the benefits that would bring for government transparency and accountability. I won’t be holding my breath, though.