Whistleblower law needs more bite to fight greyhound cruelty and corporate fraud

One of the biggest animal welfare stories of 2015 was the revelations of widespread animal cruelty in the greyhound racing industry exposed by ABC Four Corner’s Gold Walkley award-winning program Making a Killing.

The fallout is ongoing. New South Wales, Queensland, Victoria and Tasmania have all instigated various forms of inquiry into animal welfare and integrity in the greyhound racing industry.

The Queensland final report was handed down in June, while in NSW a Special Commission of Inquiry and, in Tasmania, a Joint Select Committee Inquiry is underway, with a final report from each jurisdiction due in March 2016.

The Queensland report made a number of recommendations, including the establishment of a Queensland Racing Integrity Commission. The proposed regulatory approach includes auditing systems, intelligence capabilities, and “a whistleblower, anonymous complaint service” enabling “the broader community to report allegations, suspicions, concerns or general intelligence”.

While reform is sorely needed to reign in the flagrant sovereignty the racing industry has enjoyed to date, there is a substantial risk that the approach recommended will translate as a “business as usual” model, which ultimately sees the dynamics of corruption and animal cruelty find an alternative path of least resistance.

One obvious “business as usual” risk within the proposed reforms is its approach to whistleblowing. Whistleblowing refers to situations in which former or current organisation members make public interest disclosures about “illegal, immoral or illegitimate practices under the control of their employers to persons that may be able to effect action”.

The whistleblower is often an employee and the disclosure might be made internally, to a statutory body. Some whistleblower legislation in Australia also protects disclosure made directly to third parties, such as the media, in some circumstances. A whistleblower will generally possess insider information that the wider community does not.

Who would blow the whistle for a dog?

The majority of whistleblowers experience long-term adverse outcomes as a result of blowing the whistle, including being subjected to various forms of reprisal and victimisation. Indeed, the assumption that fear of reprisal was the “primary disincentive to employee disclosure of wrongdoing” was a major influence in the adoption of an anti-retaliation model Australia’s early whistleblower protections enacted in the 1990s.

These provisions aim to protect whistleblowers from victimisation; unfortunately they have proven largely ineffective.

Despite the shortcomings related to anti-retaliation mechanisms, in Australia whistleblower protections for the public sector are relatively strong. Those available for the private sector are considerably weaker. For example, the whistleblower protections provided by the Corporations Act 2001 have been widely criticised and were subject to review by a federal senate committee as part of an inquiry into the Australian Securities and Investments Commission’s operation.

You don’t not need to look far to find examples of whistleblower intimidation within Australia’s greyhound industry. In the context of the recent revelations whistleblowers claimed that they had been “intimidated, threatened or pushed out of racing circles”.

Potential witnesses to the 2014 Parliamentary Inquiry into the NSW Greyhound Racing Industry were too afraid to speak out about alleged mass dog graves “because any link to them would come with reprisals”.

In an industry notorious for its alleged links to organised crime and corruption, the Queensland Report’s whistleblower provisions are likely to languish.

Who in these circumstances would be game to blow the whistle on behalf of a dog?

Look to the US for better protection

Under the whistleblower system proposed for Queensland’s greyhound industry, allegation or referral sources include licensed industry participants, including trainers, breeders or owners, members of the general public, local councils, and via audit and compliance activities.

How can we support and legitimise these potential whistleblowers when they take substantial risks to their livelihood, future employment opportunities, psychological well-being and potentially their personal safety to make a disclosure and to right a wrong?

Perhaps we need to look further afield, to the United States’ False Claims Act (FCA) for inspiration. The FCA has been around for a century and a half and has the support of both sides of politics.

In basic terms and in its contemporary sense, “False Claims” refer to circumstances in which corporations knowingly submit false claims to the government for the purpose of financial gain.

Where a person discovers this fraud, provisions allow that person to file an action on behalf of the government. Proceedings are initiated through specialist legal firms and the whistleblower then presents the case for further action to the equivalent of Australia’s federal or state and territory Attorney General departments.

There are qualifications to these actions. For example, the action cannot be based on already publicly-disclosed allegations of transactions in a criminal, civil or administrative hearing.

The FCA has two key strengths that are not offered by the whistleblower mechanisms proposed in Queensland.

Firstly, it provides financial incentives for private whistleblowers to commence actions. If successful, the whistleblower becomes entitled to a percentage of any civil damages recovered.

This can be understood as a form of compensation for a risky act of conscience. The amount recovered can be substantial. For example, an action taken against pharmaceutical company Pfizer for off-label promotion and kick-backs under the US False Claims Act resulted in a total recovery of US$2.3 billion.

Secondly, given the victimisation and adverse outcomes the majority of whistleblowers experience, it is essential that as a society we support whistleblowers in recovering their pre-whistleblower status and legitimacy. Unlikely the majority of whistleblowers, those in the United States who receive backing of the Department of Justice in FCA actions “often survive and succeed”.

Were the proposed greyhound racing regulatory reforms to include FCA style financial incentives and associated legal support, it is probable that whistleblower provisions would operate more effectively.

They may finally address the profound regulatory failures that have led to the current inquiries and to longstanding, widespread animal cruelty in the pursuit of gambling.

Alexandra McEwan does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond the academic appointment above.

Alexandra McEwan, PhD Student, ANU College of Law, Australian National University

This article was originally published on The Conversation. Read the original article.