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There's No Accounting For Ethics

14/02/2017 11:24 AM AEDT | Updated 14/02/2017 11:25 AM AEDT
JOHN THYS via Getty Images
Former employee at services firm PwC Antoine Deltour leaves the courthouse in Luxembourg on April 26, 2016, during a trial over the so-called LuxLeaks scandal.

The new year has ushered in a tougher corporate tax regime in Luxembourg -- and a new round of court appearances for the pair who first exposed the country's secret tax deals with multinationals.

Antoine Deltour and Raphael Halet are former employees of PricewaterhouseCoopers in Luxembourg. Their 'LuxLeaks' revealed the Grand Duchy's practices of negotiating tax rulings that allowed many large companies to minimise their tax, in some cases to less than one percent. The European Commission found evidence of illegal state aid in some cases.

While they were convicted last year of theft and violating professional secrecy laws, and have been back in court for appeal hearings (a decision expected next month), many maintain that their actions were in the public interest.

Certainly the European Parliament has called for better protection of whistleblowers, like them, and Luxembourg has changed the tax laws to end the practices exposed by Deltour and Halet.

In Australia, a Parliamentary Inquiry into whistleblower protections has been established and the Government is conducting public consultation on the appropriate protections for tax whistleblowers.

The case sits at the intersection of confidentiality, the public interest and the law, and raises thorny issues for professional accountants who have an obligation to act in the public interest. Indeed, as the Code of Ethics for Professional Accountants makes clear, acceptance of this responsibility is a "distinguishing mark" of the profession.

The Code was even updated last year to include a framework for accountants on how to deal with actual or suspected illegal acts. This new framework renders disclosing a suspected illegal act to a regulator not an ethical breach of the principle of confidentiality, if such a disclosure is not precluded by law or regulation.

In other words, taking the high road on public interest may not be enough. Even in a circumstance where there is a genuine suspicion of a significant illegal act, it is possible that for a professional accountant to comply with the Code, they may have to allow it to continue, if a law or regulation does not allow disclosure and there is no other way to resolve the ethical conflict.

It's noteworthy that the requirements under the Code are quarantined to clients' and employers' non-compliance with laws or regulations, and also that the media is not considered an appropriate authority to whom a suspicion can be reported.

If confidentiality laws are going to prevent professional accountants from acting in the public interest, has our Code really addressed the ethics of overriding the principle of confidentiality to act in the public interest, by considering such a disclosure acceptable if professional accountants are willing to bear the legal consequences?

Of course, the broader issue is whether laws are always ethical.

There are some echoes here of Edward Snowden, the former intelligence contractor who leaked details of the US Government's warrantless surveillance program which led to new laws to reform the NSA.

No less a figure than the former US Attorney-General, Eric Holder, recently said in an interview that "We can certainly argue about the way in which Snowden did what he did, but I think that he actually performed a public service by raising the debate we engaged in and by the changes that we made."

The same, surely, is true of Deltour and Halet. The new corporate tax rules in Luxembourg arguably would not have been enacted without their actions.

The issues raised in all these cases -- around ethics, the power of the State, globalisation, the rule of law and technology -- are profound. They represent a challenge for the entire community, our profession included.

I speak to many young people around the world who aspire to become accountants, attracted to the profession by the beacon of our ethics and responsibility to act in the public interest. I struggle to explain LuxLeaks.

It is impossible to reconcile the profession's lofty rhetoric with its actions, where two professional accountants who arguably acted in accordance with the spirit of the ethics code and 'did the right thing' in the public interest have not been recognised by the profession itself, whilst they have received praise and awards from outsiders.

There is no question that there should be consequences for breaking the law. However, if you accept that actions can be illegal but ethical, should the Code of Ethics allow for those?

Ultimately, rhetoric around ethics and public interest is hollow if it is not supported by deeds by the professions' leadership.

At the very least, a conversation is needed about how we are going to act in the public interest -- in practice -- and exhibit moral leadership in times of crisis. Fail to do so and we tarnish our track record of adding immeasurable value to business and the community.

Worse still, we imperil our professional credibility.


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