Blowing the whistle

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.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Yobbo
Yobbo
2022 years ago

Rivkin’s sentence boggles the mind in it’s severity. It’s the equivalent of 3 months prison.
For comparison’s sake, on the same day he was sentenced, a less prominent story saw a teenager sentenced to 3 months to bashing a 68 year old cabbie with a hammer and robbing him.

I know which victim I’d rather be.

Geoff Honnor
Geoff Honnor
2022 years ago

Both these outcomes are a bit bizarre. I’d assumed that Rivkin would get a substantial fine and a suspended prison sentence. Instead he received a relatively derisory fine given his circumstances, and periodic detention. I’m left with the distinct impression that the aim was to humiliate him for failing to stick to the appropriately contrite script. I frankly find the whole notion of “making an example of you” utterly distasteful. And hectoring little homilies from the bench about one’s failure to self-flagellate sufficiently are more appropriate to a Kindy ethics class.

Di Fingelton was clearly operating a couple of levels above her level of managerial competence and should never have been appointed Chief Magistrate. She’s basically guilty of being out of her depth and of possessing a uniquely awful set of interpersonal skills. Is incarceration really an appropriate response here? Compared to Rivkin, her material/professional loss is total. I’d also like to hear how the Queensland AG proposes to monitor the performance of the judiciary as human resources managers……

Homer Paxton
Homer Paxton
2022 years ago

Ken,
Is it possible to to tell we no-law types how Fingleton who got legal advice on her e-mail is found guilty on the same e-mail.

I find it extradoerdinary that if she was indulging in a conspiracy she would seek legal advice over it.

Did the Jury just take a dislike to a gal out of her depth?

Ken Parish
Ken Parish
2022 years ago

A commenter who wishes to remain anonymous sent in these observations on the Fingleton case:

Your first notion on the Di Fingleton verdict is probably most correct. She was certainly guilty of bullying and intimidation within the Qld magistracy – much of it based upon personal issues. The fact that a dozen magistrates testified against her in the case is proof enough of that. Until then, her faults were probably more of a case of managerial weakness and personal grudgebearing than anything more sinister.

As Geoff pointedly notes – she was promoted in excess of her capabilities.

This serious fault was compounded by her stupid decision to send such a threatening e-mail to a senior magistrate. How her legal counsel supposedly okayed that missive is beyond me since any business manager with even a modicum of experience in unfair dismissal would have immediately recognised the danger in its words, tone and context. She was foolish to offer such an irrevocable threat because Magistrate Gribbin had no recourse than to take the matter higher.

Result: rapid escalation of events past a point of no return.

None of this is a jailable offence in and of itself except for the fact that Fingleton made the mistake of making a veiled threat to a judicial officer. Under legislation designed to project judicial officers and jurists from threats and in a post-Fitzgerald Queensland – his mistake was critical.

She was without a doubt guilty. I’m not *quite* sure if jailtime is more appropriate than say, a hefty fine in this case. Then again, threats of any kind to judiciary is taken very seriously by the courts.

Geoff Honnor
Geoff Honnor
2022 years ago

I guess I’m just weighing these facts against the imagery of the Chief Magistrate of Queensland being locked up in the Brisbane Watch-House. Something looks to be out of kilter…

One thing we can rely on: no-one will be politically responsible for what was a manifestly absurd appointment….

yarralawyer
yarralawyer
2022 years ago

What is it about *some* (deliberate qualification) Labor Party hacks appointed to judicial office as a reward for party service? Di Fingleton, Lionel Murphy…they seem to have great difficulty comprehending that the behaviour appropriate to Labor Party factional battles (doing deals for mates, intimidating those who oppose you) is not acceptable behaviour for the judiciary. Keep an eye on Victoria, where Attorney-General Hulls has been happily stacking the benches with the Comrades. It is bound to end in tears.

woodsy
woodsy
2022 years ago

There is no other explanation for the severity of the Rivkin sentence – ASIC and it’s mates at the big end of town wanted a scapegoat. It will be very, very interesting what, if any, sentences the directors and management of HIH get. The other comparison is Bond et al, but they went down for shareholder rape not insider trading. Perhaps the judge in question got some dodgy advice from Rene.

Norman
Norman
2022 years ago

They both got off lightly. If ordinary people are expected to develop any respect for the law, we need to see guilty tall poppies occasionally get mild sentences such as these.
[I finally got in, Ken, even if it had to be via Bitchin’ Monaro.]

paul bickford
2022 years ago

Fingleton was also charged with Attempting to Pervert the Course of Justice which was probably a more pertinent charge. The AFP were also considering a Crimes Act charge of Electronic Transmission of a Threat- any way you look at it she was history. The fact is that she has never been admitted or practised prior to being appointed to the bench, and was clearly incompetent. The fact that she indulged in criminality over petty personal issues confirms she was unfit for the appointment in the first place, and both Beattie (Premier) and Matt Foley (former Attorney General) should have their nuts ripped off with a plastic fork for benighting the bench with her (and there are plenty more where Di came from).

Ron Mead
Ron Mead
2022 years ago

Interesting to see that the Rivkin sentence is apparently not (effectively) subject to appeal. The sentence is being carried out with his right to appeal being (effectively) disregarded. This is something I’ve not been aware of before in Australia – sentences being carried out before an appeal is heard. Just as well he wasn’t sentenced to death.

mark
2022 years ago

Heard on the radio the other night, some Qldian Liberal Member (in both senses of the word, I should think), screaming “this is obviously a failure of your policy of appointing judges to the bench based on politics. Are you going to admit that this policy has failed, and if so, when will you cease to make political appointments?”

To which the only response would have to be: “have you stopped beating your wife?”

Mind you, while I know little of Fingleton (Ken: is the notation “CJ” appropriate?), the comments to this post make her appointment seem pretty grim…

Ken Parish
Ken Parish
2022 years ago

Mark,

Probably CM or CSM would be the appropriate abbreviated title, but now CSM (HMP). It was clearly a very ordinary appointment to say the least, but the Tories have a few problems of their own from recent history. I’m surprised someone hasn’t invoked the magical incantation “Angelo Vasta”.

derrida derider
derrida derider
2022 years ago

” [Bondie et al] .. went down for shareholder rape not insider trading”

woodsy, insider trading in stocks IS shareholder rape – thats why its illegal. That coitus turned out to be financially unsatisfactory in this case doesn’t change the nature of the act.

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Ken Parish on the Queensland Chief Magistrate’s conviction