Reporting suspicions of money laundering and ‘whistleblowing’: the legal and other implications for intermediaries and their advisers

Journal of Financial Crime

Volumn 10, Issue 1, 2003, Pages 23-29

  Latimer, Paul ^a  

^a MONASH UNIVERSITY   (Australia)

Author keywords

Australia; Financial institutions; Law enforcement; Money laundering; Whistleblowing

Indexed keywords

EID: 84993030138     PISSN: 13590790     EISSN: 17587239     Source Type: Journal    
DOI: 10.1108/13590790310808565     Document Type: Review

References (33)

1. Cripps, Y. (1986) ‘The Legal Implications of Disclosure in the Public Interest: An Analysis of Prohibitions and Protections with Particular Reference to Employers and Employees’, ESC Publishing Ltd, Oxford, p. 257, cited in J. G. Starke, (1991) ‘The Protection of Public Service Whistleblowers’, Australian Law Journal, Vol. 65, No. 4, at p. 208.
2. Some of these examples are taken from Bastin, G. and Townsend, P. (1996) ‘Whistleblowers - A Legitimate Role in Corporate Life?’, Journal of Financial Crime, Vol. 4, No. 2, p. 179.
3. ‘Enron Fired Workers for Complaining Online’, The New York Times, 21st January, 2002.
4. Eg ‘Action demanded on whistleblower. The Federal Government and the Opposition yesterday demanded action to protect defence whistleblowers after a soldier who gave evidence of bastardisation had a death threat painted outside his room.’ The Age (Melbourne), 8th November, 2000.
5. De Maria, W. andjan, C. (1994) ‘Wounded Worker’, Result Release Two, University of Queensland, October, p. 45.
6. The Age (Melbourne), 6th April, 2001, p. 10.
7. The Age (Melbourne), 20th November, 2000.
8. Eg Haynes, A. (2000) ‘The Struggle Against Corruption - A Comparative Analysis’, Journal of Financial Crime, Vol. 8, No. 2, p. 130-131.
9. Fisher,}., Harshman, E., Gillespie, W., Ordower, H., Ware, L. and Yeager, F. (2001) ‘Privatising Regulation: Whistleblowing and Bounty Hunting in the Financial Services Industry’, Journal of Financial Crime, Vol. 8, No. 4, p. 310.
10. Eg Walter, J. Mcl. and Erlich, N. (1989) ‘Confidences - Bankers and Customers: Powers of Banks to Maintain Secrecy and Confidentiality’, Australian Law Journal, Vol. 63, No. 6, p. 404; Starke, J. G. (1991) ref. 1 above, p. 213.
11. Gartside v Outram (1856) 26 LJ Ch 113 at p. 114, cited in Starke, ref. 1 above, p. 214.
12. [1924] 1 KB 461, discussed eg Weerasooria, W. (1993) ‘Tournier Turns 70’, The Australian Banker, Vol. 107, p. 311.
13. In addition, Commonwealth Public Service Regulations 1935 (Cth) r. 30 (Breaches of Regulations to be reported); Independent Commission Against Corruption Act 1988 (NSW) (public and private sector disclosure) and the AntiCorruption Commission Act 1988 (WA) (short title: Official Corruption Commission Act 1988 (WA) (police officers, other public sector).
14. The Whistleblowers Protection Act 1993 (SA) was raised unsuccessfully in Morgan v Mallard [1997] SASC 6056 as a defence to an action in defamation on the basis that the disclosures were not ‘public interest information’ as defined in the Act. In Sutton v State of South Australia [1998] SASC 663, a whistleblower was unsuccessful in an allegation of ‘victimisation’ because of the Ombudsman's refusal to investigate a disclosure that had been fully investigated five years earlier. In King v SA Psychological Board [1998] SASC 6621, a costs order was made against a whistleblower who later withdrew his complaint about the conduct of a named psychologist. In Howard v State of Queensland [2000] QCA 223, a Queensland public servant who made a public interest disclosure to the Criminal Justice Commission failed to show that the employer was vicariously liable for the statutory tort of reprisal made against him on the basis that the acts were outside the scope of employment. These are available at www.austlii.edu.au.
15. De Maria, W. (1999) Deadly Disclosures - Whistleblowers and the Ethical Meltdown in Australia, Wakefild Press, Adelaide,p. 210. With the Whistleblowers Protection Act 2001 (Vic), there are now five Acts.
16. Eg Sarker, R. (1995) ‘Blowing the Whistle on Fraud’, Journal of Financial Crime, Vol. 3, No. 2, p. 185, with reference to the earlier Whistleblowers Protection Bill 1995 (UK).
17. www.osc.gov. Discussed eg Fisher, B. D. (1991) ‘The Whistleblower Protection Act of 1989: A False Hope for Whistleblowers’, Rutgers Law Review, Vol. 43, p. 355; Kaplan, E., ‘Whistleblower Protection in the US Government’, Ethics Regimes In the Public Sector, 24th February, 1999. See further Powell, B. V. (1989) ‘Whistling in the Dark: The Protection of Federal Whistleblowing Protection for In-House Reporters of Corporate Wrongdoing’, Oregon Law Review, Vol. 68, p. 569.
18. Callahan, E. S. and Dworkin, T. M. (2001) ‘The State ofState Whistleblower Protection’, American Business Law Journal, Vol. 38, No. 1, p. 105.
19. USC 3729 (1988).
20. Eg Callahan and Dworkin, ref. 18 above, p. 101.
21. Eg Bhojani, S., ‘The Professions and Whistleblower Protections’, paper presented at ‘Crime in the Professions’, Australian Institute of Criminology Conference, University of Melbourne, 22nd February, 2000, available at www.accc. gov.au.
22. Eg Bastin, G. and Townsend, P. (1996) ‘Whistleblowers - A Legitimate Role in Corporate Life?’, Journal of Financial Crime, Vol. 4, No. 2, p. 197.
23. Eg Corporations Act 2001 (Cth) ss 442E (administrator); 990L (auditor) and 1289 (auditors and publishers of audit reports); 426 (controller); 535 (liquidator).
24. Baker Jones, J. (1996) ‘Whistleblowing - No Longer Out of Tune’, The Australian Accountant, Vol. 66, No. 7, p. 56.
25. A ‘significant cash transaction’ is a transaction involving the physical transfer of coin or paper money of not less than AU10,000. The report to AUSTRAC must be within the ‘reporting period’ defined in s. 3 as 15 days for Australian currency and the end of the next day if the transaction involves foreign currency.
26. Corones, S. G. (1998) ‘Solicitors’ Liability for Misleading Conduct’, Australian Law Journal, Vol. 72, pp. 783-784.
27. Walker, G., Fisse, B. and Ramsay, I. (1998) Securities Regulation in Australia and New Zealand, 2nd edn, LBC, Sydney, p. 483.
28. De Maria, W. (1994) ‘Unshielding the Shadow Culture’, Research Release One, University of Queensland, April, pp. 22-33.
29. www.uow.edu.au/arts/sts/bmartin/dissent/contacts/au_wba/.
30. www.whistleblowers.org.
31. Lewis, D. (1996) ‘Employment Protection for Whistleblowers: On What Principles Should Australian Legislation be Based?’, Australian Journal of Labour Law, Vol. 8, pp. 160-161; Lewis, D. (2001) ‘Whistleblowing at Work: On What Principles Should Legislation be Based?’, Industrial Law Journal, Vol. 30, pp. 191-193.
32. Public reaction after the attack on the World Trade Center on 11th September, 2001 should not authorise government overreaction in the name of ‘The War Against Terror’ to limit freedom of expression and the freedom of the press, such as Australia's proposed Criminal Code Amendment (Espionage and Related Offences) Bill 2001 (Cth), which has been soundly criticised by many parties including Whistleblowers Australia and seems destined for further redrafting: ‘Spy Laws “Will Limit Freedom of Speech” ‘, The Australian, 4th February, 2002, p. 4.
33. Eg Whistleblowers Protection Act 1993 (SA) s. 5(2).