“All that is needed for evil to prosper is for people of good will to do nothing”—Edmund Burke

The

Whistle No. 105, January 2021

Newsletter of Whistleblowers Australia (ISSN 2205-0299)

Articles

BOOK REVIEW can provide a model to other workers. to do what they could to hire more However, low-profile operations may talented minority employees. Then, Learning from not be able to tackle deeply entrenched when these individuals were employed, tempered radicals problems. Also, these sorts of opera- he provided advice and support so they A review of Debra Meyerson’s book tions often require well-developed in- could survive and thrive. Over decades, Rocking the Boat: How to Effect terpersonal and communication skills. his quiet efforts made a huge difference Change Without Making Trouble And they involve a time commitment to hundreds of individuals, leading to a on top of regular job tasks. gradual increase in ethnic diversity in Reviewed by Brian Martin When I wrote the new chapter on the organisation. Peter did not make a low-profile operations, I wasn’t aware song and dance about what he was MY BOOK The Whistleblower’s Hand- of any research on this avenue for doing, but instead kept a relatively low book was published in 1999. In it, I change. Recently, though, I discovered profile concerning his efforts, and discussed two main avenues to address a major research project on this very eventually he rose up within the organ- problems. The first is trying to get topic. Its findings were published years isation. someone in authority to take action, for earlier. Joanie had responsibility for her example by informing the boss, using company’s use of fair-trade products grievance procedures, contacting exter- Enter Debra Meyerson but was met with resistance by manag- nal agencies such as ombudsman’s of- Debra Meyerson, a researcher at Stan- ers in a key division. She took the fices, and going to court. This road I call ford University, became interested in opportunity of a company-wide restruc- “official channels.” The second main processes of organisational change ture to move her unit into that division. avenue I called “building support.” It pushed along by workers who wanted By working closely with the managers, involves informing wider audiences, to make a difference while remaining in she changed their perceptions of priori- especially ones that may help to fix the their jobs. She interviewed dozens of ties and they became supporters of her problem. employees in three companies in the agenda. When it came time to prepare a new US, all of them sizeable white-collar Cathy, a black woman, had a good edition of the book — this time titled businesses. Her main interest was in job in a company in a part of England Whistleblowing: A Practical Guide, efforts to make organisations more that was heavily white. Driving a nice published in 2013 — I added chapters inclusive, in particular to cater better for car, she was regularly pulled up by on two other avenues. One is leaking, women, ethnic minorities and lesbians police for questioning, an obvious case otherwise known as anonymous whis- and gays. She also studied a number of of racial profiling. Rather than make a tleblowing. This reduces the risks of cases of individual efforts in other formal complaint or seek publicity, she reprisals and can enable staying in the locations. consulted with a mentor, who wrote a job, collecting more information and letter to the police chief. It turned out continuing to leak. the chief was sympathetic: he also wanted to stop the racial profiling by police under his command. Cathy and the chief worked together to bring about a change in police practice.

The second new chapter I titled Debra E. Meyerson “Low-profile operations.” I described it this way: “You can seek to address a One interviewee, to whom she gives problem by talking to people, introduc- the name Peter Grant, was initially ing ideas, encouraging discussion and fairly low in the hierarchy but played a fostering awareness — and doing it key role in hiring staff. He made an inconspicuously.” This approach re- extra effort to recruit highly competent duces the risk of reprisals, keeps the minority employees, which was im- Meyerson interviewed employees focus on the issue (rather than on a portant in this white-dominated com- who tried to make their organisation whistleblower), enables staying on the pany. He told applicants from minority more family-friendly. Some bosses job to continue fostering change, and groups that he expected them, if hired,

2 The Whistle, #105, January 2021 would call last-minute meetings in expectations for appearance and be- the organisational way of seeing the evenings, making life difficult for haviour. world and avoid expressing anger that workers with young children. By Meyerson’s first category for mak- might be counterproductive. having a word with bosses, eventually ing a difference at work is quiet Meyerson’s fourth category is to it became standard to finish all meet- resistance that helps maintain a sense of seek small changes, wins that won’t ings by 5.30pm. your true, or non-work, self. This can be trigger resistance, and have them snow- In another instance, at one organisa- done by making links with like-minded ball, or just add up over time. One tion most gay employees hid their others inside and outside the organisa- example is Peter Grant, described sexuality from senior management. At tion, appearing to conform while acting earlier, who recruited talented minority a major function, gay men invited on your beliefs, expressing your “self” applicants and expected them to hire women to appear to be their partners. through your clothes and personal style, more minority applicants. There are Tom’s mentor advised him to do the and by acting outside the organisation. several reasons for starting small. The same but, with his boss’s support, Tom These methods of quiet resistance may changes can be achieved, and achieving brought his male partner to the function, not sound like much but they are them gives hope and confidence. Small and all went well. This provided an important in maintaining aspects of changes reduce others’ anxiety, and example for other gay men. your “self” that would otherwise be they can foster learning in the organisa- submerged or extinguished by work- tion while expressing the values of the Tempered radicals place culture. tempered radical. These are among the many stories Meyerson’s second category in- Meyerson’s fifth and final category provided by Meyerson in her 2008 book volves turning threats into opportuni- for making a difference at work is to be Rocking the Boat. She calls individuals ties. The threat might be pressure to involved in collective action. In Aus- who seek to bring about organisational conform, an offensive action such as tralia, the obvious avenue is trade change, but in a cautious way, abusive language or a stereotyped unions, but in the US private sector “tempered radicals.” She describes five expectation such as that women will white-collar sector these are rare. ways for these tempered radicals to organise social functions. She says it’s Meyerson describes three routes into make a difference. It’s worth examining vital to step back to consider options, organising in the places she studied. each of these ways and then seeing what see these occasions as opportunities to Sometimes there was a threat or oppor- whistleblowers might learn from them. bring about change, and to remember tunity that enabled an individual to that silence is an option. Suppose the build support; sometimes an incident boss, in a meeting, says that the wife of triggered wider support; and sometimes the new CEO has great legs. Rather a group formed out of common inter- than challenging it immediately, in the ests, for example a group for gay heat of your emotion, it might be better employees, decided to take action. to say something to the boss privately or to use humour such as “I think you should have said that James (the new CEO) has a great hairstyle.” Sometimes small interventions can change the way people think and behave. If done care- fully, the risk of causing offence is small. Meyerson’s third category is to build support by talking with potential allies and pursuing interactions to bring about solutions, while usually avoiding con- frontation. Her case studies include ones mentioned already: getting pro-

duction managers on side for support- ing fair-trade inputs, raising the issue of Obstacles

putting business meetings on week- Bringing about change in small ways ends, and countering racial profiling in Meyerson adopts a perspective on while taking few risks sounds great, but police stops of vehicles. This may it’s not as easy as it sounds. Working psychology and behaviour in which involve seeking advice and support every person has multiple “selves.” for change on the inside over long from “third parties,” who are individu- periods can lead to anxiety and guilt. According to this perspective, you als not directly involved in an issue. behave differently in different circum- There is an ongoing tension involved in Third parties can help with preparation outwardly conforming while maintain- stances, for example being a loving for action, offer legitimacy, provide person at home but ruthlessly aggres- ing one’s ideals but not acting on them personal support, mediate, reduce the in an overt way. Some tempered radi- sive on the road. Many tempered anxiety of adversaries and offer helpful radicals have personal ideals but, at the cals, like Peter Grant, are accused of ways of thinking about issues. They can hypocrisy by outsiders who are una- workplace, feel obliged to conform to also help you avoid being sucked into

The Whistle, #105, January 2021 3 ware of the behind-the-scenes efforts values of the organisation. Neverthe- they make over a long time. less, they knew they had to be careful, Another obstacle is gradually adjust- because in practice things operated dif- ing to the organisation’s agendas. As ferently. people rise in their careers, they can Similarly, management is always become more averse to taking risks officially in favour of honesty, integ- because they have more at stake. They rity, fairness, environmental responsi- can wait for the ideal time to act — and bility and any other noble value you’d keep waiting indefinitely. They can care to name. Whistleblowers are point- become adept at using insider language, ing out a possible violation of one or but this can change the way they think. more of these values, and in this regard Other obstacles are awareness that they are similar to tempered radicals. their actions may damage their reputa- Perhaps the difference in treatment tions, and burnout from trying hard over of tempered radicals and whistleblow- In contrast are workers who speak a long period yet seeming to make little ers is a matter of sampling. Whistle- out but never set out to be whistleblow- impact. If your boss is unsympathetic, blowers whose stories end up in the ers. They thought they were just doing making small changes is far more diffi- media, or who come to Whistleblowers their jobs. They might be called cult. Personal relationships within your Australia, are mostly those who have “inadvertent whistleblowers.” Unlike immediate work colleagues are cru- suffered reprisals. We seldom hear tempered radicals who carefully cali- cially important. about the ones who use the techniques brate their actions to achieve change of tempered radicals, carefully raising while minimising effects on their ca- awareness about problems while keep- reers, inadvertent whistleblowers didn’t ing their jobs. realise there was any danger, or grossly Perhaps there are more tempered underestimated the risks. radicals than we realise. In surveys Another factor may be that the goals carried out by the Whistling While pursued by Meyerson’s tempered radi- They Work project led by AJ Brown, cals are in tune with wider social many employees reported that they had changes, which have seen, for example, blown the whistle but not suffered greater acceptance of equal opportunity reprisals. Could these employees have for women and ethnic minorities. Mey- been tempered radicals who played the erson intentionally does not address organisational game cautiously? Were organisational activists seeking what they reporting on matters in a way that might be considered regressive didn’t threaten anyone? Were they changes, such as exclusion of women. dealing with personal grievances? We In contrast, there is not quite the won’t know until there are more studies same cultural shift in relation to chal- like Meyerson’s, delving into the sto- lenging corruption. Despite rhetoric ries of workers who try to make a about honesty and integrity, it can be change while not jeopardising their argued that the rise of market funda- What whistleblowers can learn careers. mentalism, with its endorsement of Meyerson only briefly mentions whis- competitiveness and a priority on self- tleblowers, saying that they face interest, as well as the gutting of regu- “obvious dilemmas.” The typical issues latory restraints, has fostered a culture raised by whistleblowers — corruption, of greed. In this context, speaking out abuse, hazards to the public — are about corruption remains risky, if only different from the ones addressed by because so many employees are impli- Meyerson’s tempered radicals, which cated in it. most commonly feature discrimination These considerations aside, it is still on the basis of gender, ethnicity and Perhaps there is another factor. All worthwhile examining what can be sexuality. Still, the methods used by of Meyerson’s tempered radicals learned from tempered radicals. It is tempered radicals are available to seemed to know what they were up valuable to be acutely aware of which workers concerned about corruption. Or against. They recognised that, for sorts of actions are safe and which are is something deeper involved? example, coming out as lesbian or gay risky, and to have the courage to act in In terms of what management says was potentially risky, or that they could small ways to test the waters and make and what actually goes on, there’s no pay a penalty by questioning the boss’s small improvements. There is much fundamental difference. In the organi- racist or sexist comment. Women, eth- more to learn. We are still waiting for sations that Meyerson studied, manag- nic minorities, and lesbians and gays researchers to investigate how workers ers were officially committed to equal- are nearly always aware of patterns of in practice have tackled corruption and ity and, of course, to organisational discrimination because they encounter hazards to the public in the style of effectiveness. Tempered radicals were them routinely. tempered radicals. acting in accordance with the stated

4 The Whistle, #105, January 2021 Former Archbishop children by clergy, and thus merited the complaints that thousands of parents same intensity of investigation. So too took to them, to the same extent that Philip Wilson was any involvement of those officers, bishops were vilified by the Royal receives award in any covering-up of child abuse, Commission for moving predators to deserving of equivalent examination. unsuspecting parishes. What is worse, THE WHISTLEBLOWERS ACTION GROUP Some victims of abuse, by police or say, a bishop leaving an accused priest Queensland selected former Arch- justice or government officers, took in charge of an orphanage, or a police bishop of Adelaide Philip Wilson as its their chances and went to the Royal sergeant who ignores the injuries, pleas Whistleblower of the Year for 2018. Commission, but many stayed away. and allegations of an escaped orphan, The award citation carried the follow- Some refused direct invitations from and returns the orphan to the orphanage ing commendation. the Commission to give evidence about in a police car? What is worse, the priest abuse and/or about cover-up of that who maintains the secrecy of the Former Archbishop of Adelaide abuse. confessional, or the judicial inquiry Philip Wilson, for the disclosure to the From a Queensland perspective, the which does not inquire into criminal court that the primary responsibility for Royal Commission needed to explain cover-up of abuse in a public institution enforcing the laws against child abuse whether there existed any reasonable because the terms of reference for the was held by police and justice authori- difference between the abuse of inquiry only go to abuse, not to cover- ties, not by the clergy. Wilson’s disclo- children in religious organisations up of abuse? sure was made during his successful versus abuse of children committed by The police commissioners and prin- appeal of his conviction for allegedly government agencies. Serious abuse in cipals of some past inquiries and inves- failing to act against a paedophile government agencies within Queens- tigations were not given their day of priest. The announcement of the award land has been disclosed by former shame, as were the bishops. If the Royal has been withheld until after a final Premier Mike Ahern about the Osborne Commission found that it was not decision was made on the appeal by papers, by Kevin Lindeberg about the plausible for Cardinal Pell not to know Cardinal Pell, and after the redacted Heiner disclosures, and by the Fitzger- about the abuse in the parishes at portions of the Royal Commission re- ald Inquiry about the plan to frame a Ballarat, what did they find about the port were made public. police whistleblower with child abuse plausibility that the police commission- charges. ers did not know about the abuse occur- Also, church laypersons, who were ring in the Ballarat community [Victo- investigating religious abusers where ria], and in Maitland [NSW], and in the police were showing little interest, Brisbane [Queensland]. have made allegations that evidence Queensland Whistleblowers would provided to police was not used in ask, how did the law come to prosecute prosecutions, causing them to lose Archbishop Wilson, one of the few further confidence in the police. Lay- religious leaders who, laypersons persons became suspicious of the claimed, did help them, and who Philip Wilson efforts of police and justice authorities pursued accused religious child abusers when those officers attempted to stop through the papal judiciary? How did Queensland Whistleblowers have, those laypersons from carrying out the law pursue a cardinal with only one since 2018, withheld criticisms of the searches relating to victims of sus- witness against him, when police and Royal Commission into Child Sexual pected child abusers. They also con- prosecutors were insisting that Abuse, out of respect to those who demned the actions of senior police churchlay persons had to identify at benefitted from the focus placed by the officers who frustrated the inquiries least three victims willing to give Commission on the religious offenders. being made by honest police. evidence against a suspect before the The line-up of bishops before the Since his release, Cardinal Pell has police and prosecutors would act? How Commission was a moment of national referred in interviews to the cooperation were non-religious persons, subject to significance that allowed those bishops of police and bishops in moving offend- allegations by multiple children, saved to feel their national shame. ing priests. Why is Cardinal Pell not from prosecution because of prejudicial From the moment of the announce- being interviewed about police cover- media coverage, but religious leaders, ment of the Royal Commission, ups? namely Cardinal Pell, were brought to however, Queensland Whistleblowers The Royal Commission appears to trial with only one accuser after a wrote to the Prime Minister about our have created some confusion about who national media campaign, led by a concerns as to whether the Royal is responsible for prosecuting perpetra- Four-Corners program and supported Commission had the independence for tors of child abuse. It is absolutely by widespread media condemnation? dealing with child abuse in all areas of certain that police and justice bodies Australia needs a new royal commis- the community where predators gather have the primary responsibility for sion on child sexual abuse, with teach- to harm vulnerable children. In particu- prosecuting paedophiles. The clergy are ers, church lay persons, parents, and lar, any child abuse by officers from not responsible for prosecuting reli- carers on the bench, and with police, police agencies, justice bodies and gious perpetrators. The Royal Commis- justice and government authorities in government care agencies was as sion has not vilified the police and the witness stand. criminal in nature as the abuse of justice officers who failed to act on the

The Whistle, #105, January 2021 5 Media watch

Center for Whistleblower Collaery and Witness K revealed current quartet — would accept these that Australia bugged Timor-Leste’s risks and speak up? Staring down the Rights & Rewards cabinet, to help our government in barrel of psychological trauma, profes- ripping off an impoverished neighbour sional ruin and financial oblivion, how TODAY, on 9 December 2020, UN during tense oil and gas negotiations. many prospective truth-tellers will stay International Anti-Corruption Day, we McBride blew the whistle on the silent? are pleased to launch the first alleged actions of Australian special organization that provides the full forces in Afghanistan — conduct char- range of assistance and support to acterised as potential war crimes by the whistleblowers worldwide. Inspector-General. Boyle called out The Center for Whistleblower Rights aggressive debt recovery practices by & Rewards brings together an interna- the Australian Taxation Office, which tional team of attorneys and activists deliberately targeted vulnerable small led by Whistleblowing International, businesses. leading whistleblower rights law firm Kohn, Kohn and Colapinto, and the

National Whistleblower Center. https://www.whistleblower-rewards.eu What wrongdoing might be occur- ring right now that Australians will The Center offers groundbreaking never know about, because those who services to whistleblowers everywhere: witnessed it remain mute? The cost of regardless of where people live or work courage has become too high a price to in the world, they can obtain legal pay. representation, be eligible for anti- Bernard Collaery Credit: Alex Ellinghausen It did not have to be like this. In retaliation protection, and receive 2013, the Labor government introduced monetary compensation under US In each case, these whistleblowers protections for public servant whistle- whistleblower laws. blowers. The Public Interest Disclosure People can communicate with the raised their concerns internally first. Witness K articulated their misgivings (PID) Act provided a comprehensive Center with a guarantee of complete regime for the disclosure and investiga- confidentiality and under the protection with the Inspector-General for Intelli- gence and Security, in consultation with tion of wrongdoing and protections for of attorney-client privilege. Encrypted those who speak up. But while on paper communication channels are available. his Intelligence-approved lawyer, Collaery. McBride went to the police. the law was a step in the right direction, This is the first international organi- it has proven ineffective in practice — zation that places whistleblowers at the Boyle lodged an internal disclosure. In each case, they were sidelined or no more than a cardboard shield. center of its work. What a great way to In 2016, an independent review by celebrate International Anti-Corruption ignored. In desperation, they spoke up. But Philip Moss found that “the experience Day! of whistleblowers under the PID Act is for these principled people, we might never have known about the misdeeds not a happy one”. Last year, a Federal — potentially illegal, or, at the very Court judge lambasted the law as The cost of courage: least, improper — done in our name. It “technical, obtuse and intractable” and Australia must do more to is only thanks to Collaery, Witness K, “largely impenetrable”. McBride and Boyle that we can demand On Wednesday, Attorney-General protect whistleblowers corrective action and take steps to Christian Porter announced that the Kieran Pender ensure they are never repeated. government was accepting, in part or in Sydney Morning Herald We should be praising these whistle- whole, 30 of the 33 recommendations 17 December 2020 blowers. Instead, the Morrison govern- made by Moss. This is welcome news, ment is prosecuting them. Orwellian? but it is long overdue. Porter and his AS WE REACH the end of 2020, four Kafkaesque? Take your pick. colleagues have sat on this reform for individuals — Bernard Collaery, Whether or not Collaery, McBride or four and a half years. In the meantime, Witness K, David McBride and Richard Boyle succeed in their defences homes have been raided, charges laid Boyle — are being prosecuted by our (Witness K has indicated a willingness against whistleblowers and secretive government. These whistleblowers to enter a plea of guilty to a single trials commenced. spoke up in the public interest, and now charge of breaching the Intelligence The Attorney-General must reform face the very real prospect of jail time. Services Act, subject to a plea bargain), the PID Act as a matter of urgency. In If we want to live in a transparent, the chilling effect of the prosecutions is the government’s official response, it accountable democracy, that should severe. What potential whistleblower flagged that it intends to go further than trouble us all. — having seen the reality faced by the the Moss review. This is welcome,

6 The Whistle, #105, January 2021 although the devil will be in the detail individuals who have spoken up against years in the making — about alleged — detail which, for now, remains wrongdoing. Almost unanimously, they war crimes by Australian troops in absent. If Porter is serious about say: “I did not intend to become a Afghanistan. promoting transparency and probity whistleblower.” You said, on receiving the report, within our democracy, he should com- Many shun the label entirely. They you would “speak out” about Justice mit to legislating stronger protections are simply people who did what they Brereton’s key findings once you had for government whistleblowers in early believed was right — people who saw “read and reflected” on the report. Not 2021. Wednesday’s announcement is a cruelty, corruption or abuse of power, only do we now know you will do so positive step, yet until these changes and felt morally compelled to do some- this Thursday, but the PM has warned become law, whistleblowers will con- thing about it. In their shoes, would we Australians to brace themselves over tinue to suffer. not all hope for the courage to do the the shattering revelations in that report. same? Given our client was warning — Whistleblowers perform a vital years before — of the very culture of democratic function in Australia. They cover-ups that the Brereton inquiry are the canary in the coalmine that is investigated, I urge you to read and Australian democracy. We must hear reflect on what is happening to their call, not lock them up. The govern- McBride before you speak out, because ment’s recently-announced commit- the two are inextricably linked. ment to reform the PID Act is welcome, Major David McBride was an army but actions speak louder than words. lawyer, with an exemplary record who David McBride Credit: Rod McGuirk served in Afghanistan on two tours of Kieran Pender is a senior lawyer with duty. McBride became deeply con- Recent amendments to the laws pro- the Human Rights Law Centre, and cerned about battlefield behaviours that tecting Australia’s private sector whis- leads the centre’s work on whistle- were being ignored or not reported. He tleblowers only underscore Porter’s blower protections. was particularly concerned by the cul- inaction on public sector reform. Cur- ture of impunity and cover-up that was rently, those exposing corporate corrup- being set by defence leadership. tion are better protected than those If moral courage matters, exposing government misfeasance. That cannot be right. Public servants this whistleblower who speak up deserve protections equal needs defending to their private sector counterparts. Nick Xenophon Meanwhile, the government has The Age, 18 November 2020 doubled-down on secrecy laws to penalise unauthorised disclosure of DEAR GENERAL CAMPBELL, we’ve met official information. It terminates the a few times. At briefings at Parliament employment of public servants who House when you ran Operation Sover- Samantha Crompvoets’ report into SAS dare criticise it online and cuts funding abuses led to Australia's biggest war eign Borders, and in the robust forum of crimes probe. Credit: Dean Sewell to accountability agencies that were Senate estimates. I was always im- established to keep the government in pressed by your palpable decency, As both an army officer, sworn to check. Our freedom of information competence and forthright manner. uphold the integrity of the Defence regime is in tatters. Collectively, these So, I hope you won’t take issue with Force, and a practising lawyer, measures guarantee a culture of silence me writing this open letter to you about McBride had a duty to report what he within our public service and make our firm’s client, David McBride, a observed. He did so by lodging com- external oversight even harder. proud veteran, a former army major plaints up the chain of command and Australia was once a world leader in who now faces life imprisonment for, through every possible avenue of inter- the field of whistleblower protections. basically, telling the truth about what nal disclosure. He was ignored. When the first whistleblowing laws was happening in Afghanistan. As a last resort, because the infor- were introduced in this country, in mation demanded disclosure, he finally 1993, the United States was the only “blew the whistle” by going to the jurisdiction with comparable protec- media. The ABC published the tions. But as nations across the globe “Afghan Files” in July 2017, setting out have found innovative ways to protect shocking details of war crimes and and empower whistleblowers, Australia cover-ups — from material that has lagged behind. We have failed to McBride provided. The “Afghan Files” shake off the words of a former police were a breakthrough revelation for commissioner, who once observed that Australians, including many of its “nobody in Australia much likes whis- Angus Campbell parliamentarians (including me at the tleblowers”. Credit: Alex Ellinghausen time), but for McBride it was the Yet any one of us could become a Just a few days ago, you were beginning of his torment. He was whistleblower. I have met dozens of handed the Brereton report — four arrested soon after and now faces a

The Whistle, #105, January 2021 7 possible life sentence at his trial next implore you, when speaking out on the David McBride. It’s a crying shame that year. Brereton report this Thursday, that you instead he is being persecuted. Rajend The charges against ABC journalist also speak out for McBride: a man who Naidu, Glenfield Dan Oakes, who received the docu- acted at great personal sacrifice to ments, were recently (and quite rightly) uphold the honour and integrity of the dropped by the Commonwealth Direc- Defence Force you lead. tor of Public Prosecutions. But without the source, the journalist had no story Nick Xenophon is a partner in law firm and the public would still be none the Xenophon Davis, which is acting for wiser. David McBride. As a senator (2008 to So, what’s this got to do with you? 2017) he instigated a Senate inquiry into whistleblower protections. Both nothing and everything. Nothing, as there is no suggestion of any culpa- bility on your part; on the contrary, it was you, as Chief of the Army in 2015, Hounding whistleblower who commissioned the report by Samantha Crompvoets that was seen as major is now hypocritical a catalyst for the Brereton inquiry. Letters to the editor The government has now publicly Crompvoets’ cataloguing of the “blood Sydney Morning Herald expressed sorrow about the misconduct lust” and “cover-ups of unlawful 23 November 2020 of our troops in Afghanistan. Yet for killing” only saw the light of day on the years this same government has done pages of this newspaper last month. The government has condemned the everything possible to suppress any But in a sense, the continuing prose- alleged war crimes by some soldiers of information about these events through cution of McBride has everything to do the ADF (“Force of fear”, November its raid on the ABC, its intimidation of with you. McBride was arrested by the 21–22). The prime minister has ex- journalists and the ongoing threat to AFP in 2017 at the instigation of pressed deep sorrow to the people of prosecute primary whistleblower David Defence. Now in 2020, the Commander Afghanistan. Yet the government is McBride. I just wonder whether we of Special Operations, Major-General proceeding with the prosecution of would, without McBride and these jour- Adam Findlay, acknowledges that whistleblower David McBride (“Moral nalists, have ever heard about these “poor moral leadership” was to blame courage needs defending,” November events? John Slidziunas, Woonona for atrocities that occurred in Afghani- 18), who first brought these alleged stan. What a difference three years has atrocities to light. The government The fact that legal action remains pend- made. But nothing has changed for should end this hypocrisy and drop ing against David McBride is a further McBride. these charges. This trial is not only outrage, and it must be withdrawn Findlay praises the “moral courage” wrong but a waste of taxpayers’ money. immediately. Our government should of whistleblowers and I suspect there Leo Sorbello, West Ryde hang its head in shame in regard to his may be more such comments in the treatment and that of a fellow whistle- wake of the Brereton report. Yet the We should consider the possible blower and of the ABC. Adrian Eisler, parallel treatment of McBride remains a outcome for whistleblower Major Eleebana chilling warning to every serving Aus- David McBride as a result of his tralian Defence Force member to turn a attempting to report to the relevant Despite all evidence of horrendous blind eye, to shut up if they know what authorities shocking behaviour and atrocities in the Afghanistan war, so far is good for them. cover-up for some actions by some of only one person is facing criminal our defence forces in Afghanistan. One charges. That person is David McBride, certain outcome is more months of the man who risked so much to bring stress — he was originally arrested in those dark secrets into the light. 2017 and his trial is to start next year — Without him, the Brereton inquiry and he faces the possibility of a life would not have happened. He deserves sentence. Bridget Wilcken, Mosman our thanks and support. Dropping the charges would be a start. Tony Judge, “The only thing necessary for the Woolgoolga triumph of evil is for good men to do Nick Xenophon nothing” (a saying usually attributed to No (Letters, November 21-22), soldiers Edmund Burke). Major David McBride are trained to fight the enemy, not hate It was whistleblowers like McBride was conscious of that when he blew the them. No again, the enquiry is not about and a handful of others who made the whistle on atrocities allegedly commit- castigating soldiers doing their job. Brereton report possible by refusing to ted by Australian elite soldiers in This enquiry is about soldiers stepping be intimidated into silence. In my view, Afghanistan. He has helped to ensure over the line and cold-blooded killing. they have redeemed the reputation of the evil did not triumph. We as a society All (most) soldiers know the rules and our nation. They do not deserve jail committed to human decency owe a follow them. Mike Berriman (Vi- cells. I respectfully ask you, indeed I debt of gratitude to good men such as etnam vet), Tanilba Bay

8 The Whistle, #105, January 2021 By comparison Timor’s neighbour “The 127-room Central Maritime Australia is wealthy. The flight from Hotel was a converted Russian hospital from Dili, the capital of Timor, to ship that was rebuilt in Finland, used as Darwin, Australia’s northern-most a hotel in Myanmar and then towed to capital city, 722km away, only takes Dili because there were no hotels or about an hour, and yet it is a world away restaurants of suitable standard for in- in terms of child malnutrition and ternational visitors. It was conveniently

poverty. moored opposite the waterfront white- Bernard Collaery So when Timor gained its independ- stuccoed Palácio do Governo.” ence, it was not surprising that Australia The Timorese didn’t know their pri- 2020 Blueprint International offered to send international aid support vate cabinet discussions about the treaty Whistleblowing Prize to the new nation. had been secretly breached. The Aus-

But it also sent spies. tralian Government’s cover story for THIS IS A STORY about spies, interna- Timor only has one major source of the bugging was an aid program to tional espionage, betrayal and billions wealth: natural resources that include renovate the Timor government offices. of dollars’ worth of contested natural valuable oil and gas fields. These are In 2006, foreign ministers Alexander resources lying under the ocean floor. under the ocean bed in the Timor Sea Downer of Australia and Jose Ramos- In this story, one of the richest coun- that divides Australia and Timor. In Horta of Timor signed an agreement to tries in the Asia-Pacific region spied on order to develop those resources, the divide up the resources under the Timor and betrayed one of the very poorest. two allies were obliged to share the Sea. Australia was the clear winner in The beneficiary of the Australian state- revenue. How the two countries would those negotiations, gaining a significant sanctioned spying operation was an oil divide the undersea resources was the financial advantage compared to what and gas company. subject of treaty negotiations on their would have been the standard position The story traverses five countries — maritime boundaries. under international law. The Netherlands, Indonesia, Australia, A major beneficiary of the new the UK, and one of the world’s newest bilateral agreement was a resources nations, Timor-Leste, formerly known company, Woodside Petroleum. In as East Timor. 2008, Foreign Secretary Downer left

politics to take up a lucrative contract The history of bravery and betrayal with Woodside. The then Secretary of The story begins with Timor Leste’s the Department of Foreign Affairs and transition from Indonesian rule into an Trade had already resigned and joined independent nation in 2002. This was a the board of Woodside. violent transition, in which “more than The bugging operation did not sit 150,000 people, a quarter of the popu- well with some inside ASIS, Australia’s lation, were murdered or deliberately overseas intelligence agency. The situ- starved to death between 1974 and The Australian Government sought ation was described by Australian 1999, when the territory was under to gain an unfair advantage in these Senator Rex Patrick in a 2018 speech in Indonesian rule.” negotiations by sending Australian Parliament: Australia and Timor share a long Secret Intelligence Service (ASIS) history together, with Timor having agents to bug the offices of the Aware of Mr Downer’s consultancy proved itself as a staunch ally to its Timorese prime minister and his cabi- work for Woodside, Witness K bigger, wealthier neighbour. In the First net. The Australians would have heard complained to the Inspector-General World War, a company of Allied the Timorese negotiating positions. One of Intelligence and Security about the soldiers, including Australian, Dutch of the key protagonists in this story is East Timor operation. ASIS took steps to effectively terminate his and British fighters, were trapped in Witness K, an unnamed ASIS officer employment—an outcome that is not Timor, and came under heavy fire after who was asked to lead the bugging unusual for whistleblowers in this disrupting the Japanese military pres- operation. country. In response, Witness K ence. The Allies retreated into the The spying operation was technolog- obtained permission from the IGIS to mountains and were hidden and pro- ically sophisticated: speak to an ASIS-approved lawyer, tected by the Timorese, at a terrible cost The electronic bugs placed inside the Bernard Collaery, a former ACT to themselves. The East Timorese Palácio do Governo “were turned on Attorney-General. After 2½ years of suffered 40,000 deaths due to aerial and off by a covert agent inside the research, Mr Collaery determined bombings and the destruction of vil- building. They then beamed the record- that the espionage operation in East Timor was unlawful and may also lages that the Japanese forces suspected ing by microwave signal to a line-of- have been an offence under section of sheltering Australian troops. sight covert listening base set up inside 334 of the Criminal Code of the ACT. Timor is one of the poorest nations the Central Maritime Hotel … The in South-East Asia, ranking 131st out of digital recordings were then allegedly Going to the specifics, the case 182 countries on the UN’s 2018 Human couriered across town to the Australian rested on the fact that the then director Development Index. embassy, and sent to Canberra for of ASIS, David Irvine, ordered Witness analysis.” K, the head of all technical operations for ASIS, to place covert listening

The Whistle, #105, January 2021 9 devices in the East Timorese govern- himself, but Collaery provided a voice ment buildings. Those instructions en- to call out the campaign of persecution livened the section 334 offence in that and harassment being conducted it constituted a conspiracy to defraud against them both. He fearlessly spoke Australia’s joint venture partner, East up about the raid. Timor, by gaining advantage through If the raid on the former intelligence improper methods when the Common- officer and his lawyer was meant to wealth was under a legal obligation to dampen down Timor’s agitation for a conduct good-faith negotiations. revised treaty, it failed. In 2012, Timor’s leadership became By 2018, the Australian Government aware of the spying, and started had been shamed into renegotiating the The president of the Council said proceedings in the Permanent Court of treaty. This time around, Timor won a that the use of the 2004 National Secu- Arbitration in The Hague. Timor much fairer deal with an appropriately rity Information Act, which was en- intended to argue that Australia had larger share of the sea bed and its acted during the war on terror in acted in bad faith by spying during the resources. response to terrorist threats, to close the negotiations, which would void the In this way, the people of Timor court room, offends “the principles of Timor Sea agreement. Leste have finally won rightful owner- open justice.” Justice being served Witness K was to be the star witness, ship over their own natural resources. openly is a “basic rule of the common supported by his lawyer, Bernard The increased revenue will have a sig- law”, she said. Collaery. Collaery had flown to The nificant impact in a country where the Open courts are a cornerstone of Netherlands early to prepare for the population suffers in so much poverty. Australia’s legal system. One of the hearing in December 2013. The Hague The story is not however over for major risks with secret courts is that a had a special significance to him Witness K and Bernard Collaery. In government will try to prosecute people because his father, a WWII fighter pilot 2018, four months after the signing of for revealing its crimes, and those had been shot down and killed on an the new treaty, and four and a half years crimes will never come to light. Allied mission near The Hague. after the raids, the Australian Govern- In Timor-Leste, according to Kim Collaery had located the spot the plane ment chose to charge Witness K and his McGrath’s book, Crossing the Line: went down in waters just offshore. lawyer, Bernard Collaery. Australia’s Secret History in the Timor Each faces criminal charges for con- Sea, “the streets of Dili are graffitied spiring to share information protected with kangaroos carrying away buckets by Section 39 of the Intelligence of oil.” Services Act, which prohibits the unauthorised communication of official information. Witness K has indicated he will plead guilty to breaching the Intelli- gence Services Act. Bernard Collaery is continuing to fight in the ACT (Austral- ian Capital Territory) Supreme Court in Canberra. Proceedings have been opaque and expensive. The Australian Government has already spent some $2 million Congratulations to Bernard Collaery prosecuting Collaery and Witness K, — winner of the 2020 Blueprint despite the proceedings being still only International Whistleblowing Prize. in a pre-trial stage. That Collaery faces four charges only came to the public after nine months of hearings and seven

judgments. While Collaery was abroad, Aus- The Australian Government has in- tralia’s domestic spy agency ASIO and sisted that Collaery’s court proceedings the federal police simultaneously raided be held in secret. While some secrecy, Collaery’s home and barristers’ cham- such as protecting Witness K’s identity, bers, as well as the home of Witness K. is important, there is a great deal about They took K’s passport, so he would this case that can and should be heard in not be able to travel anywhere. The open court. raids had been organised by David The Law Council of Australia, the Irvine, who had then become head of nation’s peak legal body, has thrown its ASIO. support behind Collaery and criticised the government’s use of secret courts. Collaery would not go quietly. Witness K would not be able to identify

10 The Whistle, #105, January 2021 Bird’s eye view: the themselves and the reputation of the people with mental health issues in government. Australia. markers of government- The average Aussie would be gob- A second indicator of government sanctioned corruption smacked and enraged by this, as I have sanctioning corruption is the laws Ken Carroll been. The cover-up by government enacted in relation to whistleblowers. I Pearls and Irritations departments, organisations and the peo- cannot think of anything more im- 22 November 2020 ple who are supposed to ensure portant to national security than to offences are properly investigated is ensure a thorough independent and pro- I JOINED the Australian Public Service indicative of a system engineered to fessional investigation of any possible (APS) with a typical expectation of appear to be working efficiently when, systemic corruption. working to serve the public. The in fact, it allows bureaucrats and politi- If corruption is allowed to flourish at brochure looked inviting: people work- cians alike to behave outside the top levels of government and politics, ing happily together, and a chance to confines of the law, without conse- this is a matter of grave national secu- progress in an organisation that valued quence. This is the real issue that all rity. So any country that enacts laws, or such common-sense ideals as working Australians must know about, because uses existing laws, to silence whistle- in a supportive, accountable, a-political you’re paying for it. blowers is extremely telling in terms of organisation with high ethical stand- Moreover, this system is a slap in the their attitude about corruption and, no ards. Evidently, I was wrong. face to all the good and hard-working doubt, indicative of the level of APS employees, who are no doubt in systemic corruption that exists in that the majority. It is a slap in the face to all country. Otherwise, why create laws Australians who want to believe there is and use existing laws to silence whistle- an efficient system that investigates blowers with the threat of imprison- unethical and criminal conduct commit- ment? ted by those in high office, including Australia is at a crossroads in terms politicians. of forging a moral pathway to ensure We have been told for years that such open, transparent and ethical govern- an effective, efficient system exists, but ance, now and in the future. In terms of the opposite is the case. The victims are a robust, well-resourced national inde-

not only taxpayers but, in particular, the pendent commission against corruption Serious offences committed yet cov- people who do the right thing by report- with actual teeth, we are all paying ered up by management; just another ing misbehaviour. dearly for its absence and have been for day at the office. But the greatest victims of all are the quite some time. The return on invest- I was in disbelief that management brave men and women who fought for ment, financially and otherwise, to all just did not seem to care. It took me a our freedoms in various theatres of war. citizens of an independent federal few years to understand why. Having They gave up everything for us and still commission against corruption with been through the complaints and inves- do so, to fight for the ideal of democ- far-reaching powers would far out- tigations “system” in several federal racy. There is no democracy when weigh the cost of corruption itself. The government agencies, I am unfortu- bureaucrats and politicians have engi- reports of political and commonwealth nately more than qualified to assess the neered a system that allows them to rorts over the past 12 months alone is system’s effectiveness. evade the law. sufficient evidence of the need for a When a federal employee wants to There are several ways to gauge commission. report a crime allegedly committed by whether government corruption is sanc- This is an opportunity to lay the another federal employee, the com- tioned by the government itself. foundations of an open and accountable plaint must be reported to the common- First, the manner in which whistle- system of governance. We deserve it, wealth agency in the first instance. This blowers are treated. Bullying and our forefathers deserve it and our is public knowledge. This is Australian harassment within the APS is publicly children deserve it. Federal Police (AFP) policy. acknowledged. However, whistleblow- Ken Carroll was a Queensland Police The obvious issue is that the people ers endure endless reprisals for speak- ing up for the good of all. This is obvi- Officer within the Queensland Police to whom you report the offences could Service from 1994 to 2012. He then very well be the ones who have either ously a cultural norm sanctioned by top management to discredit the allegations started work as a provisionally regis- committed the alleged crimes or want to tered psychologist within Queensland cover up the allegations. If the agency of the whistleblower, to punish them for Corrections and then joined the Austral- finds that no offences have occurred, their pesky do-goodedness. The added ian Public Service in 2013. He holds a the AFP will not investigate. benefit is that it warns off other likely psychology degree with honours and a This is where the real crime against “do-gooders.” Master of Business Administration de- every single Australian begins, because It is a testament to those in power the gree and has worked in both the Commonwealth Department of Human their hard-earned tax dollars are spent extent to which then can manipulate people into thinking and behaving in a Services and the Department of Health. to support a system that covers up alleged crimes committed by high-level degrading manner. It is also an abysmal bureaucrats and politicians — to protect attitude that harms the mental health of all APS workers and those who help

The Whistle, #105, January 2021 11 Sovereignty eroded: Wiki treatment of Assange that reveals more illegal to include strategic and diplo- than a library of leaked documents matic relations. cables show both Labor could ever do about how power is exer- The then attorney-general, Senator and Coalition culpable in cised in this relationship. Robert McClelland, weighed in saying The lies were obvious from the that Australian authorities would do all Assange persecution beginning. In 2010, when Assange, they could to help the US investigation Andrew Fowler working with the Guardian newspaper into WikiLeaks. Without revealing Michael West Media in the UK, began publishing reports what advice he was basing his decision 3 December 2020 | from the Cablegate cache of leaked on, McClelland even threatened to documents, the Iraq War Logs, and the revoke Assange’s Australian passport. Afghan War Diary. The US govern- ment immediately complained that the revelations put lives at risk.

THE AUSTRALIAN GOVERNMENT’S treatment of Julian Assange has A voice in the wilderness revealed more than a library of leaked The only government voice providing documents ever could about how power any support was foreign minister Kevin is exercised in the relationship with the Rudd, who had taken Gillard and United States, writes Andrew Fowler. McClelland to task when they had attacked Assange’s activities. Rudd Justice Brereton has just handed down declared the need to recognise the his report into war crimes allegedly principle that Assange was “innocent committed in Afghanistan by Aus- before proven guilty.” He also told the tralia’s SAS soldiers. Crimes that may But that was all part of a ploy: attorney-general he did not have the not have seen the light of day without power to revoke Assange’s passport. A congressional official … said the It is possible Gillard thought being the work of journalists. administration felt compelled to say Prime Minister Scott Morrison says publicly that the revelations had seri- pro-American would play well with the the report is disturbing and distressing; ously damaged American interests to public. It didn’t. Assange’s biggest sup- that the war crime allegations must be bolster legal efforts to shut down the port base is in Australia, where opinion dealt with by the justice system; that WikiLeaks website and bring charges polls said that 60% of the people agreed any prosecutions must adhere to the against the leakers. with the work he had done. More sur- prising was the support he received presumption of innocence. In truth, internal US government re- Morrison fails to recognise the role from news outlets. views had determined that the leaks had In an unprecedented move, repre- of journalists in revealing the killings, caused only “limited damage to US and instead warns against “trial by sentatives from all the major outlets bar interests abroad.” The Australian signed a letter criticising media”. And the journalist who first Yet, in lock-step with the US admin- revealed evidence of war crimes in Gillard: istration, the then Australian prime Afghanistan, Julian Assange, should, minister Julia Gillard echoed the White To aggressively attempt to shut according to Morrison, be left to “face House’s public statements by declaring WikiLeaks down, to threaten to pros- the music.” Assange is fighting what is that Assange had broken the law. ecute those who publish official seen as a largely political US extradi- leaks, and to pressure companies to tion request that could see him jailed for I absolutely condemn the placement cease doing commercial business 175 years yet Australia has done little to of this information on the WikiLeaks with WikiLeaks, is a serious threat to help. website. It is a grossly irresponsible democracy, which relies on a free A country that will not fight for its thing to do — and an illegal thing to and fearless press. do. citizens when facing a hugely question- When GetUp! launched a campaign, able prosecution erodes its own sover- In fact it was nothing of the sort. A thousands filled the streets in Sydney eign rights. Federal Police investigation found that and Melbourne. Assange told the crowd Assange had broken no laws. Yet by video: “It is interesting how some The US holds all the cards Gillard did not retract her allegation. politicians single out my staff and Through Assange and Wikileaks we The Government went further, giving myself for attack while saying nothing have learnt much about the relationship several organisations, including the about the slaughter of thousands by the between the US and Australia and its Australian Security Intelligence Organ- US military or other dictatorships. It is security agreement, the ANZUS treaty. isation (ASIO), greater powers and cowardly to bully a small media organ- But it is the Australian government’s widened the area of activities deemed isation, but that is what is happening.”

12 The Whistle, #105, January 2021 A price worth paying? Score to settle extradited to the US, the Australian Clearly the government thought it was Gillard’s role has often been reported Embassy in Washington was more a price worth paying for what it be- through the prism of Australia’s grovel- focused on the possible political fallout lieved was its “special” relationship ling support of America, fearful of in Canberra. The embassy was in fact with Washington. In the final days of a confronting its powerful ally. seeking advance warning, a “heads up,” wet Australian spring in 2011, then US But she also had a personal issue of when any action against Assange or president Barack Obama landed in with Assange, and a score to settle: the WikiLeaks may take place. Canberra to address the Australian release of the Cablegate documents, For Assange, the final evidence that Parliament. which later so embarrassed her and he had been abandoned came when It was the 60th anniversary of the unmasked the ALP plotters who had Nicola Roxon, McClelland’s replace- founding document of the ANZUS planned the coup against then prime ment as attorney general, wrote to treaty. Obama’s presence produced minister Rudd. Assange’s lawyers just before he sought what were described as scenes of One leaked US cable reported: asylum in London’s Ecuadorean nauseating adoration from politicians of Embassy, saying: both the major parties. When he ad- Don Farrell, the right-wing union powerbroker from South Australia, dressed parliament, Obama spoke elo- Australia would not expect to be a told us Gillard is “campaigning for the party to any extradition discussions quently of “the rule of law, transparent leadership” and at this point is the that may take place between the institutions and equal administration of front-runner to succeed Rudd. United States and the United King- justice.” dom or the United States and However, it was becoming increas- The US Embassy in Canberra also Sweden, as extradition is a matter of ingly obvious that when it came to reported that “the PM’s brother Greg bilateral law enforcement co- Assange the US and Australian govern- [Rudd] told us … that Rudd wants to operation. ments were playing by other rules. ensure that there are viable alternatives In other words, the Australian gov- Assange was receiving only minimum to Gillard within the Labor Party to ernment had abrogated its responsibil- consular support from the Australian forestall a challenge.” The cable added ity to defend one of its citizens. High Commission in London. that “protected” source Senator Mark What is more difficult to understand His political support came almost Arbib (another Labor powerbroker) is the indifference to Assange’s plight exclusively from the Greens. Scott “once told us a similar story.” often shown by other journalists, Ludlam told the Senate that Assange Even though the cables were including from The Age, The Sydney was recognised as a journalist by the published well after Gillard made her Morning Herald, The Guardian and the High Court in the UK. WikiLeaks was attack on Assange, the US had provided ABC, who are just as vulnerable to “a publisher,” and Assange had “broken well in advance full knowledge of the extradition to the US for what they have no law, just as the people who put his contents, because the US very early on published from the WikiLeaks docu- material on the front page of The Age had determined which cables Chelsea ments. Many remain silent or give only and the New York Times have broken no Manning had leaked. half-hearted support. law.” Others have argued a line straight out Federal government’s hostility Yet it was more than Gillard and of the US State Department that McClelland’s behaviour that high- Assange is not a journalist at all, thus lighted the federal government’s hostile stripping him of his best defence — and attitude towards Assange and putting other journalists at risk. WikiLeaks. It would be comforting to think they The government repeatedly delayed are simply misguided, but the military responding to Freedom of Information intelligence establishment has always (FoI) requests, and the then foreign found willing recruits in the media, and minister Bob Carr skirted the question now is almost certainly no different. when asked whether Assange was a journalist, undercutting his primary This edited extract is reproduced from A Secret Australia: Revealed by the defence. In the US public calls were made for WikiLeaks Exposés, edited by Felicity Carr also referred to the amorality of Assange’s execution as an enemy Ruby and Peter Cronau, Monash WikiLeaks’ revelations but did not combatant. Joe Biden called him a University Publishing, December 2020. elaborate. It was a strange comment “high-tech terrorist.” In any other case Andrew Fowler is an award-winning from a foreign minister whose job it is investigative journalist and a former involving an Australian citizen, it’s to represent Australian citizens in reporter for the ABC’s Foreign Corre- hard to believe there wouldn’t have trouble overseas, although he has since spondent and Four Corners programs. been an outcry from Australia’s leaders. spoken out against Assange’s extradi- His updated book on WikiLeaks, The Drug runners had received more tion to the US. Most Dangerous Man in The World: sympathetic treatment. There was little Julian Assange and WikiLeaks’ Fight for The limited information released defence of Assange and he was fast Freedom, was published in July 2020 by under the FoI Act revealed that instead becoming a man without a country. Melbourne University Press. of seeking assurances that Assange

would be treated fairly if he were ever

The Whistle, #105, January 2021 13 One in five Covid “We all owe thanks to whistleblow- concerns are listened to and acted on,” ers who do the right thing and speak out he said. whistleblowers sacked, about wrongdoing in the workplace. Calls for more to be done to protect research reveals But if employers continue to ignore whistleblowers came amid growing Jonathan Owen their concerns — or worse — dismiss awareness of the problem. Scotland’s People Management, 30 October 2020 them for speaking up, we all need to be first minister, Nicola Sturgeon, said extremely concerned,” she said. yesterday (29 October) that employees ONE IN FIVE employees who have gone Ranjit Dhindsa, partner and head of under pressure from their employers to to their bosses with concerns over employment at Fieldfisher, said the break Covid-19 rules could report this furlough fraud and breaches of Covid- findings were evidence that many “dangerous behaviour” directly to her. 19 safety rules have been sacked as a employers did not have effective proce- “To workers across the country: if result, a report has found. dures in place to address employee you are being put under pressure by an The British whistleblowing charity concerns. “They should provide sources employer to act in any of these ways, Protect also found two in five staff who of help and guidance to whistleblowers; get in touch with your local MSP made disclosures were simply ignored, seek to instil a culture in which individ- [Member of the Scottish Parliament], in what it said was a “systematic uals are encouraged to come forward get in touch with the local environmen- response to whistleblowing.” with concerns; and ensure individuals tal health office, email me directly,” she are protected through a confidential said. investigation of their concerns,” she “Because that would be dangerous said. behaviour that we would take steps to Dhindsa added: “During a pandemic, ensure is addressed fully and this is of heightened concern as failures promptly.” to respond to concerns could be life or Issues of safety breaches by employ- death.” ers were also highlighted in Baroness Kate Palmer, associate director of Doreen Lawrence’s review on the HR advisory at Peninsula, commented impact of Covid-19 on ethnic minority that the report could prompt the govern- communities, released this week. ment to improve protections for whis- “Many respondents told us about inad- tleblowers. “At the moment though, the equate PPE, failures to implement and government has not released further access risk assessments and insufficient guidance on how they wish to tackle government guidance on their protec- The charity analysed 638 cases this issue, if at all, with regards to the tion,” the report said. related to coronavirus raised between employers who ignore whistleblowers’ 23 March and 30 September — includ- disclosures,” she said. ing complaints about furlough fraud (62 Employers who sacked whistleblow- per cent), risk to public safety, includ- ers and were found guilty of unfair ing a lack of social distancing and dismissal, faced paying a significant personal protective equipment (PPE) in amount in damages, including “a basic the workplace (34 per cent), and other award of up to £16,140, as well as an rights violations (4 per cent) — and uncapped compensatory award,” compared this to a sample of cases Palmer warned. across 2019. The report called for employers to be It found the number of whistleblow- forced by law to have whistleblowing ing reports ignored by employers in- arrangements in place, and for the creased during lockdown. In 2019, 31 government to create a new regulator, per cent of disclosures were ignored, the Whistleblower Commission, which but this increased to 41 per cent during would have the power to fine compa- the Covid-19 outbreak. nies in breach of whistleblowing stand- Calls to the charity’s helpline also ards. In addition, legal aid should be rose by 37 per cent between March and extended to whistleblowers taking their September this year, compared to the employers to employment tribunal, it same period in 2019. said. Liz Gardiner, chief executive at Darren Jones, Labour MP and chair Protect, said there was never an excuse of the business, energy and industrial for employers to ignore whistleblowers. Protect’s report: “The best warning strategy select committee, said whistle- system: whistleblowing during Covid- But, she added: “During a global blowing was a vital means for workers pandemic, it is a danger for us all when 19. An examination of the experiences to raise concerns. “Putting in place of UK whistleblowers during a global concerns are not acted on and the effective whistleblowing arrangements consequences could be a matter of life pandemic,” October 2020 should be a key part of good govern- and death. ance, helping to ensure that people are encouraged to speak out and that their

14 The Whistle, #105, January 2021 Whistleblower cases are too little of the active ingredients and The challenges of developing a vac- that its Puerto Rico manufacturing cine, manufacturing it and distributing a warning to Covid-19 operations failed to comply with man- it around the world are immense. vaccine makers datory requirements for sterile manu- Serious problems that affect the safety A whistleblower lawyer’s facturing and produced drugs that were and efficacy of the vaccine can occur at perspective on corporate contaminated. any step. fraud & corruption In the second whistleblower case, Already some issues are popping up. Erika Kelton which is ongoing, a medical researcher Reuters reported last month that US Forbes, 20 November 2020 filed a qui tam lawsuit against Roche drug inspectors uncovered serious qual- Holdings in 2014 for claims involving ity control problems at an Eli Lilly Pfizer’s and Moderna’s announcements Tamiflu, an oral antiviral prescription pharmaceutical plant in New Jersey that that each company has developed what drug that Roche marketed and sold as a is ramping up to manufacture a promis- seem to be effective Covid-19 vaccines seasonal influenza treatment. The law- ing COVID-19 drug. Lilly told the news have brought great rejoicing, but that suit alleges that the government agency that it has launched a “compre- news and the surge in Covid-19 cases purchased 50 million courses of hensive remediation plan,” increased increase the tremendous pressure on all Tamiflu based on false claims about the staffing at the site and was working vaccine developers to quickly produce drug’s effectiveness. “aggressively” to address all concerns world-saving measures. Roche lost the latest round in the raised during the inspection. case in September when a federal With almost 200 projects underway district court judge denied the pharma to develop Covid-19 vaccines, compa- company’s motion to dismiss. The nies should pay close attention to legal lawsuit says that the federal govern- and regulatory compliance. Whistle- ment and state governments spent about blowers will be essential watchdogs to $1.5 billion to stockpile Tamiflu as part ensure the validity of trial results and of its Pandemic Influenza Preparedness the efficacy and safety of desperately Plan. needed Covid-19 vaccines. The stakes A number of major pharma compa- couldn’t be higher. nies have received substantial govern-

ment funds for developing vaccines or As pharma races to develop and for the purchase of vaccines once Sally Masterton manufacture Covid-19 vaccines, whis- approved. These include Pfizer ($1.95 billion for 100 doses of the vaccine), 2020 Blueprint UK tleblowers are expected to play an Whistleblowing Prize important role in ensuring that vaccine Sanofi partnering with GSK ($2.1 billion for development and purchase of manufacturers don’t succumb to the SALLY MASTERTON is the winner of the temptation to take unsafe shortcuts, 100 million doses) and Johnson & Johnson ($1 billion for development 2020 Blueprint UK Whistleblowing exaggerate positive results, sidestep Prize. Her whistleblowing played a key good manufacturing practices or fail to and purchase of 100 million doses). Smaller companies such as Moderna role in bringing to light one of the comply with sensitive handling require- largest banking frauds in UK history. ments in distributing vaccines to the ($1 billion for development plus $1.5 billion for 100 million doses) and The full amount of the money involved public. is still not known by the public, but is Whistleblowers have long been es- Novavax ($1.6 billion) also have gotten significant federal funding. estimated to be in the order of £1 sential in policing the pharma industry billion. and exposing misconduct that is hidden The federal government’s funding of vaccine development and its expected Sally’s careful research and disclo- from regulators. sures also revealed the bank’s efforts to Two whistleblower cases — one purchase of hundreds of millions of vaccine doses mean that whistleblowers sweep knowledge of the wrongdoing settled and one ongoing — are particu- under the carpet. larly relevant as vaccine developers who are aware of noncompliant prac- tices involving a Covid-19 vaccine may She is a central character in the proceed rapidly and scale up production search for accountability from those facilities in anticipation of manufactur- be well positioned to file a qui tam lawsuit to stop the problems. responsible. It is a story which is still ing Covid-19 vaccines. ongoing. In one whistleblower case, Glaxo- The False Claims Act allows private citizens who know of companies com- The story begins with the 2007–08 SmithKline paid $750 million to settle banking crisis, the consequences of civil and criminal charges relating to mitting fraud against the government to file a qui tam lawsuit and recover funds which are still being felt today. whistleblower allegations that its man- At the height of the financial crisis in ufacturing facility in Puerto Rico vio- on the government’s behalf. Whistle- blowers are entitled to protection 2008, Lloyds Banking Group became lated FDA regulations governing “cur- the UK’s largest retail bank when it rent good manufacturing practices.” against employment retaliation and a significant reward if government funds acquired Scottish banking and insur- The whistleblower, who was a qual- ance company HBOS, which was itself ity assurance manager, alleged in a “qui are recovered. The GSK whistleblower was awarded more than $96 million. formed from a merger of Halifax plc tam” lawsuit that GSK was manufactur- and Bank of Scotland in 2001. The UK ing drugs that contained too much or

The Whistle, #105, January 2021 15 government had encouraged the deal to Reading fraud were eventually con- vantaged” and “were lacking even basic shore up HBOS, which had been left victed in January 2017. information from the bank.” close to collapse when money stopped The HBOS story is important not So vital was Masterton’s forensic flowing through commercial lending only for the enormous amounts of work, the police tried to have her co- markets after the 2007 credit crunch. money involved — police estimate the opted onto the investigation. In a letter total cost amounting to up to a billion to Lloyds, one of the officers wrote that pounds — but for the way Lloyds her evidence had “provided in an under- responded to the wrongdoing and sub- standable format that in a way explains sequent cover-ups that had come from in essence what is banking industry within its own ranks. (LBG) banking practices,” adding that Sally Masterton was a forensic “the usefulness of such explanation is accountant and insolvency practitioner, vital to the ongoing investigation.” who had worked for HBOS since 1998 In 2013, Masterton was given per- and then, after the takeover, for Lloyds. mission to document the disclosure She worked in the “high risk” unit of the failings and the criminality she had In reality HBOS’ problems were bank which managed the bank’s small uncovered. The paper she produced has greater than anyone knew. Prior to the business customers, who were seen as become known as the Project Lord acquisition by Lloyds, a corrupt HBOS more likely to default and who became Turnbull report. It alleges not only that employee in the business’ Reading the main victims of the Reading fraud. HBOS deliberately concealed criminal office had been busy colluding with By 2010, the ringleader of the Read- activity at their Reading branch prior to external partners to rip off the bank’s ing fraud had been arrested and there the Lloyds takeover, but that Lloyds own corporate customers, driving many was an active police investigation executives failed to act appropriately viable businesses to the wall. Many of underway (“Operation Hornet”). Mas- once the issue was brought to their those affected were small, local enter- terton’s own investigations inside the attention. prises feeling the impact of the financial bank, which had the advantage of crash brought about by others higher up unrestricted access to internal records, the chain — the start-ups developed at had revealed evidence of possible someone’s kitchen table, the couple money laundering and theft, as well as who had poured their lifesavings into unauthorised lending that the police building the music business they had should have been aware of. The more always talked about. Masterton dug, the more she hit internal Business customers from across walls. Bank staff told her to stop dig- south-east England who needed addi- ging. A senior colleague had previously tional funding were directed to HBOS’ suggested that she destroy internal Reading branch, which would oblige documents. She refused. the company to buy corporate services The report was put into the public from a specific external consultancy, domain by parliamentarians from the Quayside Corporate Services, as a pre- All-Party Parliamentary Group (APPG) condition for obtaining a loan. on Fair Business Banking in June 2018. Evidence presented at the trial of In their statement accompanying the Quayside and former HBOS Reading release of the report, the APPG said it staff in September 2016 described inap- “makes serious allegations of fraud, propriately large loans being made to malpractice and a subsequent cover up businesses on Quayside’s recommen- at Lloyds and HBOS … The contents dation, funds from which were then and allegations contained within this siphoned off with large consultancy report must be available to rigorous fees. In some cases, Quayside had taken public scrutiny and full, forensic and over control of people’s businesses Instead, Masterton helped Thames expeditious investigations by regula- entirely. tors, fraud and crime agencies. Im- The fraudulent scheme had begun Valley Police to piece together what had happened. The bank allowed her to portant though the report is, it should be before the Lloyds takeover and contin- considered in the context of other ued after it. As a result of the fraud, meet with the police, albeit in a highly controlled manner. After her first meet- contemporaneous evidence.” businesses collapsed and many individ- ing with detectives in 2013, Masterton By this point, Masterton had had to uals suffered financial distress. Some was shocked at how little they knew, leave Lloyds. In mid-2013, Masterton were left entirely destitute. In one case, according to The Financial Times. had made a formal complaint to the Lloyds tried to repossess a couple’s Even as the bank’s legal department bank about its lack of cooperation with home 11 times between January 2009 to told her that an internal investigation the police investigation and the harass- August 2010. A judge finally sus- team had given everything to the police ment she had experienced for doing so. pended those proceedings pending the investigation, she had found that police The bank appointed a City law firm to conclusion of the fraud prosecution. Six investigators had been “severely disad- investigate Masterton’s allegations, people connected with the HBOS which decided to focus on Masterton’s

16 The Whistle, #105, January 2021 complaints about harassment before it into the bank’s knowledge of, and Congratulations Sally Masterton, would consider anything to do with the actions in regard to, the HBOS Reading winner of the 2020 Blueprint UK police investigation or allegations of a fraud. Whistleblowing Prize. cover-up. More than 50 barristers have worked on the Dobbs Inquiry in the three years since it was set up in 2017. The Inquiry is due to deliver its report in the first The malicious half of 2021. whistleblower In 2019, the FCA fined Bank of Selective and out-of-context Scotland £45.5 million for its failures to revelations, as seen in the Sushant disclose information related to sus- Singh Rajput case, go against pected fraud at its Reading branch. The constitutional rights of the accused, investigation had been placed on hold harm democracy. in 2013 in order to let the criminal case Meenakshi Arora and Payal Chawla

conclude first. The Indian Express Splitting up a complaint in this way In June 2020, the FCA fined Lloyds 28 September 2020 is a known tactic for dealing with diffi- again, this time for £64 million for cult reports bringing unwelcome news: mistreating hundreds of thousands of by dismissing an individual’s com- mortgage customers in financial diffi- plaints about their treatment, the credi- culties. bility of their other allegations can be It was the largest fine ever imposed diminished and difficult issues swept by the financial regulator for mortgage- under the carpet. This is exactly what related failures. Lloyds agreed to accept happened in Sally Masterton’s case: the watchdog’s findings. On top of this, Lloyds and its subsid- once the harassment case was dis- FOR DEMOCRACY TO thrive, freedom of missed, Lloyds placed her on leave and iary units, Bank of Scotland and The speech and freedom of the press are prevented her having anything more to Mortgage Business, estimate they have not just important, but essential facets. do with the police investigation. The had to pay approximately £300 million As the fourth estate, the media must bank told the regulator, the Financial in redress to more than half a million work for the people, not against them. Conduct Authority, that it questioned customers. the credibility of Masterton’s other The regulator made a special warn- SAMUEL Shaw and Richard Marven, allegations and did not see fit to inves- ing, in assigning the second fine, that two naval officers, witnessed the torture tigate them. the COVID-19 pandemic “only height- of British prisoners of war at the hands Masterton left Lloyds and raised a ens the importance of firms treating of their commanding officer, Esek constructive dismissal case against her customers in financial difficulty fairly Hopkins. Outraged by his action, they former employers, who have since and appropriately.” reported him, which resulted in their made two separate settlement agree- Whistleblowing is an essential part dismissal from the US Navy. That was ments with her. As part of their second of this story. Sally Masterton’s courage 1777. Shaw and Marven sought settlement in November 2018, Lloyds and determination in bringing to light Congressional support and testified admitted that they had commissioned serious financial crimes is to be before the Congress. A year later, on the Project Lord Turnbull report and commended. July 30, 1778, the US Congress passed apologised to Sally Masterton, who The largest bank in the UK wields a whistleblower resolution, now widely they said had “acted always with the enormous power. By comparison, a considered as the world’s first whistle- best of intentions.” local shopkeeper or someone trying to blower protection law. Many countries Like many whistleblowers, Master- set up their first small business has little have since enacted laws for the protec- ton faces legal restrictions on her ability power when going up against such a tion of whistleblowers. to speak publicly. monolith in an effort to get justice. The Two hundred years later, India The six individuals convicted for overwhelming imbalance in the power almost did the same. In 2011, the Whis- their part in the HBOS Reading Fraud relationship is one reason we must have tleblowers Protection Act was drafted. in 2017 included two former Lloyds corrective mechanisms, like protections The Act was later renamed The Whis- employees. The six were sentenced to a for whistleblowers, in society. tleblowers Protection Act, 2014 and combined total of 47 years’ imprison- Sally’s efforts contributed to justice was passed by both Houses of Parlia- ment, after a jury at Southwark Crown for hundreds of thousands of people ment, but never notified. Meanwhile, Court heard how money siphoned from who suffered because of this power whistleblowers were encouraged to call HBOS customers had paid for kick- imbalance and could not get redress. out corporations for corporate fraud, backs, prostitutes and holidays in The full impact of those disclosures with requisite provisions under the Barbados. is still on the horizon, and may yet be Companies Act, 2013 and the SEBI In the wake of increasing public revealed in the Dobbs Inquiry report legislations. But protections for whis- pressure, Lloyds appointed former High when it is published. tleblowers against the government Court judge Dame Linda Dobbs DBE to remained elusive. undertake an independent investigation

The Whistle, #105, January 2021 17 Whistleblowers who enjoy the legal But there is also a third category. to be thoroughly checked, their claims protection of a whistleblower law fall These are selective leaks undertaken at independently verified and, above all, within the first of three categories of the behest of the State instrumentalities their anonymity maintained. “informants.” The second category of against individuals. These leakers Any journalist and leaker who feels whistleblowers are those that fall out- neither enjoy legal protection nor any that the lines between these three side the realm of this protection and are moral justification. They, in fact, work distinct classes are blurred, only needs referred to, opprobriously, as “leakers.” against the notions of democracy and to look to the roles of Bob Woodward There are numerous examples in history the people. and Carl Bernstein in bringing down the — from Frank Serpico who leaked Nixon Government. While we, the information about corruption in the people, watch the persecution of Julian NYPD, to Chelsea Manning’s leaks of Assange, the only relevant question the classified information including the media and leaker must ask — who is Baghdad strikes in 2009, to Edward your ultimate beneficiary? If the answer Snowden, a former NSA contractor, is the people, then democracy is the who informed the world about the justification. illegal violation of their privacy. This types of leakers fall foul of the It is something akin we all recently Meenakshi Arora is a Senior Advocate, law and do not enjoy whistleblower witnessed in the SSR case. The leaks Supreme Court, and Payal Chawla is a protection, bringing them in direct were selective, high pitched, designed practising advocate and founder of confrontation with the State. The to tantalise the masses, resulting in the JusContractus. State’s justifications in not extending hapless accused feeling so cornered she the protection of law to these leakers is felt that she needed to explain her almost always based on the assertion actions to the public-at-large, virtually The whistleblower’s that their actions were subversive to putting out her entire defence. As an national security. This was also the accused, she has the constitutional right dilemma primary basis for the introduction of the to silence, which was wrenched away Ankush Khardori Whistleblowers Protection (Amend- only to momentarily satiate a voyeuris- Columbia Journalism Review ment) Bill, 2015, even while the 2014 tic desire. A fellow citizen’s constitu- 30 October 2020 Act was pending notification, severely tional entitlements were unabashedly constricting its scope. Many will recall trampled, in a gross abuse of State IT’S BEEN a busy few months for the threats of invocation of the Official power, for the profits of the media. whistleblowers. In early September, Secrets Act against The Hindu newspa- In Rajinderan Chingaravelu v. Mr R. a senior official in the Department of per for publishing the Rafale papers. K. Mishra, Additional Commissioner of Homeland Security alleged that top The US Government too, charged IT, the Supreme Court held — “Prema- agency officials had stifled the work of Snowden with treason for violating the ture disclosures or leakage to the media analysts who were raising concerns Espionage Act, 1917, stating that in a pending investigation will only about threats from Russian election Snowden’s action risked national jeopardise and impede further investi- interference and white supremacists. A security. gation, but many a time, allow the real week later, Lt. Col. Alexander These leaks, though not legal, have a culprits to escape from law.” More Vindman sat down with NBC News’ justification rooted in morality. Despite recently, the Delhi High Court in the Lester Holt to talk about how he was the personal risk, these leakers are matter of Devangana Kalita v. Delhi pushed out of the government after he usually driven by their belief in the Police observed, “Selective disclosure testified against President Trump in preservation of democratic rights. They of information calculated to sway the congressional impeachment proceed- believe that statutory authorities are public opinion to believe that an ings last year. And early this month, the ultimately answerable only to the accused is guilty of the alleged offence; official who led the government’s people. Snowden, for instance, has to use electronic or other media to run a vaccine efforts resigned after allegedly always maintained that the US Govern- campaign to besmirch the reputation or incurring the wrath of administration ment’s action of surveillance violated credibility of the person concerned; and officials because he opposed political individual rights of privacy. Snowden’s to make questionable claims of solving efforts to tout the benefits of hydroxy- lawyer, Jesselyn Rodack, argues that cases and apprehending the guilty while chloroquine to treat Covid-19. while Snowden may have violated an the investigations are at a nascent stage, agreement of secrecy with the US would clearly be impermissible.” Government, the same was merely a For democracy to thrive, freedom of contractual breach and one that was less speech and freedom of the press are not important “than the social contract a just important, but essential facets. As democracy has with its citizens”. The the fourth estate, the media must work first and second category of leakers are for the people, not against them. As undoubtedly vital to democracy, in so defenders of the people, the relationship far as they are an important check of journalists and leakers is necessary against state and corporate excesses but it is also complicated insofar as the credibility of the whistleblower needs Alexander Vindman

18 The Whistle, #105, January 2021 Regardless of which candidate wins mer about his concerns about the polit- ment’s ethics office also has a notori- on Tuesday, the election almost cer- icization of antitrust enforcement in- ously bad record of properly handling tainly will churn up a new round of quiries. He prepared an internal allegations of misconduct, which is whistleblowers from inside the Trump complaint that provided persuasive cir- often attributed to the fact that the office administration and beyond, as insiders cumstantial evidence that a series of reports directly to the Attorney either bail on a failed presidency or seek antitrust reviews in the cannabis indus- General—who, in this case, was the to set the record straight before a second try had been prompted by Attorney literal subject of Elias’s complaint. term. But we should not mistake any General William Barr’s personal dis- None of this was mentioned in short-term flurry of activity for long- taste for the product, rather than legiti- Politico’s piece, even though it bore term change in the willingness of mate concerns under the law. His alle- directly on the credibility of the depart- government whistleblowers to come gations were fairly widely covered, ment’s effort to discredit Elias. forward—at least not yet. given the news attention span of our Things got worse from there. About Until earlier this year, I was a prose- era. a week later, Politico reported on cutor at the Justice Department in another response to Elias’s complaint Washington, DC, specializing in finan- from the department—in this case, a cial fraud. I also made disclosures of lengthy letter to Congress that claimed misconduct during my time in the that Elias’ testimony was “misleading department—some of which drew and lack[ed] critical facts.” The story coverage from The Wall Street Journal, made no effort to sort through the National Review, and legal trade publi- supposed dispute, or even to provide an cations—and I eventually left the independent assessment from someone government as a result. So I have some William Barr with experience in the area. In fact, a experience with how a disclosure of close reading of the letter—by a former misconduct can impact someone per- Shortly after Elias’s testimony, Justice Department official turned law sonally—including the pros and cons of Politico reported on a two-page report professor who was writing for the becoming the subject of media cover- from the Justice Department’s Office of website Just Security—showed that it age, and how that coverage might shape Professional Responsibility—the office had not, in fact, disposed of Elias’s people’s incentives, either to make that handles internal ethics com- concerns. (Asked to comment for this internal disclosures of misconduct that plaints—that summarized the results of story, a Politico representative said that may draw press attention or to provide its investigation into Elias’s allegations. it “does not comment on the sourcing, their accounts directly to media outlets. It looked bad for Elias. The report methods, and editorial process used” This isn’t an attempt to provide a purported to rebut his factual claims for its articles but that “[w]e stand by comprehensive answer to the question and concluded that “even if” the “alle- our reporting in both of these instances of why a government employee with gations were true,” the “pretextual and, more broadly, our coverage of the knowledge of potential misconduct investigations” alleged by Elias “would Department of Justice which has might be reluctant to come forward. not have violated any relevant laws, consistently held the department to Still, there are several issues involving regulations, rules, policies, or guide- account.”) the operations of the media itself that I lines.” I recently had a similar but less egre- believe have gotten less attention than gious experience. It occurred as a result they deserve, and that I believe have of a Wall Street Journal report about a had a material effect on the willingness legal dispute that arose in federal court of federal employees to speak out. in Chicago after news reports concern- ing a memo that I submitted to the When the media unearths a government Justice Department’s inspector general employee’s disclosure of misconduct, shortly before I left. The memo there is an understandable desire to be discussed potential misrepresentations first to report on it—or, at the very least, to courts made by prosecutors in order to cover the initial complaint—since the to generate more time to build their public’s attention eventually moves on. cases by misusing a little-known statu- But reporters often do not follow devel- tory provision. opments closely enough when the The Journal has done very impres- government tries to discredit these sive coverage of the somewhat arcane employees—even though that sends a and important issue at the center of my powerful message to other government disclosure, but I was surprised when I John Elias officials about what might happen to read in the paper’s most recent piece them if they were to come forward with Politico did not assess the credibility that, in the course of the dispute in their own accounts. of the memo for its readers; in fact, the Chicago, the department had “denied The experience of a Justice Depart- memo was absurd on its face. No cred- the allegations” that I had made. ment employee named John Elias is ible reading of the ethical rules that In fact, no such thing had happened. instructive. Elias testified before the govern lawyers’ conduct would permit The department had carefully avoided House Judiciary Committee this sum- “pretextual” investigations. The depart- engaging with the factual questions and

The Whistle, #105, January 2021 19 had instead opted for the aggressive to identify him by virtually anyone who had “obtained a copy” of an internal strategy of arguing that it didn’t matter worked with him and by any acquaint- memo that I had written about them, if the conduct at issue had occurred ance with some meaningful familiarity and he asked the subject for comment. because there’s nothing that prevents with his work. The report set off a Needless to say, the overture did not the department from submitting even vigorous debate about whether the go over well. It led the department to “nakedly pretextual” filings with courts paper had outed him. claim, as they later put it in a memo to (the government’s own words). The To be sure, the issues surrounding me, that Kunzelman “was in posses- Journal had itself reported that non- the Times’s decision to publish that sion” of my memo, and they suspended denial five months prior. story were not straightforward. But me pending an “investigation” into I think that position is absurd on its coming from a paper that published an whether I had released “sensitive face, but that’s beside the point. A op-ed by the Trump administration Department information to the media.” casual reader of the Journal’s latest official known as “Anonymous”—who, That claim was false. It was, in fact, piece—someone who may have read we recently learned, is a now-former part of a months-long effort by my none of the earlier coverage—could Homeland Security official named office’s senior management—all of easily have been led to believe that Miles Taylor—there was no easily whom, perhaps not coincidentally, had there has been a debate on the factual identifiable principle to account for the acquired their positions during the questions raised by my disclosure even Times’s differential handling of these Trump administration—to punish me though there has been none whatsoever. people’s identities. In its recent story for raising those concerns. But the AP’s The upshot of all this is that it’s about Taylor, the Times noted that its sloppy and ill-considered email was all incumbent on editors to ensure that op-ed pages “are managed separately they needed. I stuck around for several their reporters are given the time and from the news department, which was months to see if the “investigation” was freedom to cover subsequent develop- never told of Anonymous’s identity.” going anywhere, until it became clear ments just as thoroughly as initial Still, to a reader, the lesson may seem that it was not. In fact, more than a year disclosures of potential misconduct. to be that the protection the paper would later, no one at the department has even The media’s failure to do so may deter afford you might be contingent on how attempted to contact me for my side of other people from coming forward, out media-savvy you are. the story as part of this “investigation.” of justifiable fear of being smeared by To make matters worse, the AP unscrupulous former colleagues. This never ran the story Kunzelman had problem has been all the more difficult been reporting—something they proba- to understand given the media’s general bly should’ve figured out before embrace of the fact that people through- approaching the department with a out the Trump administration routinely request for comment. (I reached out to lie about things both big and small. both Kunzelman and a representative at Why would these officials be fair or the AP multiple times to give them an reliable in their responses to people opportunity to comment for this piece, who make them look bad? Miles Taylor but they did not respond.) In the scheme of things, none of what It’s no secret that news outlets have Here too, I have had a similarly happened mattered much at the time, mishandled information in ways that unpleasant experience. Last year, I except to me. The underlying miscon- may have actively harmed federal learned that the Justice Department had duct was extremely bad as a profes- employees who sought to disclose opened an investigation following an sional matter—and it reflected a serious misconduct. inquiry from a reporter at the Associ- dereliction of duty as a prosecutor, a The most prominent recent example ated Press concerning the serial inepti- position where the public deserves the was The Intercept’s handling of a tude and ethical misconduct of a senior highest-quality work—but it wasn’t the classified document that it received career official that I had worked with. sort of thing that I would’ve expected to from an anonymous source about This particular official’s failings were draw much interest outside of the legal Russian interference in the 2016 well known within the department and profession. election. When the outlet contacted the at the FBI. This person’s conduct had, But these are marquee names in the government for a response, it appar- among other things, resulted in a court news industry—the Times, the AP, The ently provided a copy that, as the Times admonishing them for having commit- Intercept—and federal employees put it, “allowed the document’s prove- ted “a significant error in judgment” follow the news like everybody else. It nance to be quickly deduced.” The based on inappropriate “shortcuts,” and is entirely rational for them to be source is now serving a five-year prison it could have resulted—on several reticent about coming forward when sentence, and although I don’t endorse different occasions—in the dismissal of they learn about episodes like these. her conduct, I remain amazed by how an important prosecution that I led Even if that weren’t the case, it would irresponsibly The Intercept acted as a concerning a fraud that cost victims remain imperative for news outlets to newsgathering operation. across the world nearly $150 million. treat federal employees—whose jobs Last year, the Times itself published The inquiry at issue was from an AP may be at risk—with the sort of care a lengthy story about the official whose reporter named Michael Kunzelman, and respect that they would expect complaint set off the Ukraine scandal— who had been following the case. In it, themselves if their jobs were on the a report that included details sufficient he wrote to the senior official that he line.

20 The Whistle, #105, January 2021 WBA AGM

Whistleblowers Australia President Cynthia Kardell thanked everyone for their continuing commit- Annual General Meeting ment to the organization. 22nd November 2020 via Zoom 6. Public Officer Margaret Banas has agreed to remain the public officer. Cynthia asked the meeting to acknowledge and thank Margaret Banas for her continuing support and good work.

The following, being the only nomi- 6(1) Cynthia Kardell invited a motion nees, were declared elected. that the AGM nominates and authoris- es Margaret Banas, the public officer, Vice President: Brian Martin to complete and sign the required Junior Vice President: Michael Cole submission of Form 12A to the Treasurer: Feliks Perera Department of Fair Trading on behalf 1. Meeting opened at 9.20am. Secretary: Jeannie Berger of the organisation, together with the Meeting opened by Cynthia Kardell, National Director: Lynn Simpson lodgement fee, as provided by the President. Minutes taken by Jeannie Treasurer. Berger, Secretary. Proposed: Richard Gates Seconded: Stacey Higgins 2. Attendees: Cynthia Kardell, Jeannie Passed Berger, Brian Martin, Feliks Perera, Michael Cole, Robina Cosser, Maggie Dawkins, Richard Gates, Stacey Higgins, Ray Hoser, Katrina McLean, Alan Smith, Lyn Simpson, Geoff

Turner, Rosemary Greaves and Jack Amid widespread allegations of Mcglone. election fraud in 2020, WBA has remained free of taint — so far 3. Apologies: Karl Pelechowski, Jim Page and Kathryn Kelly. 5(3) Ordinary committee members (6 positions). 4. Previous Minutes, AGM 2019 Because there were no other nominees, Cynthia Kardell referred to copies of the following were declared elected. the draft minutes, published in the January 2019 edition of The Whistle. Maggie Dawkins Cynthia invited a motion that the Richard Gates WBA has several wonder women minutes be accepted as a true and Stacey Higgins among its ranks, but not this one. We’re trying to recruit her. accurate record of the 2019 AGM. Katrina McLean

Proposed: Richard Gates John Stace 7. Treasurer’s Report: Feliks Perera Seconded: Maggie Dawkins Geoff Turner Passed 7(1) Feliks tabled a financial statement

for 12-month period ending 30 June 4(1). Business arising (nil) 2020. A motion was put forward to

accept the financial statement. 5. Election of office bearers Moved: Richard Gates

Seconded: Michael Cole 5(1) Position of president Passed Cynthia Kardell, nominee for position of national president, stood down for Brian Martin to act as chair. Because there were no other nominees, Cynthia This isn’t a member of the national was declared elected. committee and this isn’t WBA’s office. We’ve put in a bid for this office, 5(2) Other office bearer positions offering $250 per year. (Cynthia resumed the chair.)

The Whistle, #105, January 2021 21 Feliks’ report In the midst of ever-increasing Every year I get the opportunity to Read out by Cynthia as Feliks had a number of incidents of whistleblowing, reflect on some rather special people. technical sound issue. the membership needs to look to There’s Brian, our vice president, recruiting more members to keep the editor of The Whistle and a steady voice of the association strong. hand and inspiration since the early nineties. Feliks, our treasurer who ANNUAL ACCOUNTS TO YEAR gives the accounts the timely, attention ENDING 30 JUNE 2020 they deserve. Jeannie, our secretary who manages to build bridges, even as INCOME she chases unpaid fees. Stacey, who DONATIONS $1565.00 has steadily lifted our Facebook MEMBERSHIP FEES $3075.00 profile, which is no easy thing. INTEREST ON FIXED Maggie, who continues to blow any This woman doesn’t have a sound DEPOSIT $242.47 whistle that comes to hand. Robina, problem, but she’s not Feliks and BANK INTEREST $5.95 who is retiring, but hopefully not in the she wasn’t at the AGM. TOTAL INCOME $4887.03 ways that matter. Michael, Richard and Lynn, who take the role of “contact” so Once again it is my great pleasure to EXPENDITURE seriously, it bodes rwell fo our future. present to the membership the annual WHISTLE PRODUCTION $3849.79 So thank you everyone as it has been accounts to the financial year ending CONFERENCE entirely my pleasure. th 30 June 2020. SUBSIDY 2019 $3293.60 I have had a busy year with the The association is in a strong finan- RETURN TO BRANCHES $250.00 usual calls for help and assistance, cial position thanks to renewal of WEBSITE FEE $39.58 mentoring would be whistleblowers, memberships, and the generous dona- ANNUAL RETURN FEES $49.00 keeping in contact with the members, tions from the members. The income TOTAL EXPENSES $7479.97 writing the odd article for the newslet- for the year amounted to $4,887.03, EXCESS OF EXPENDITURE ter or post for our Facebook page, which includes donations of $1,565.00. OVER INCOME ($2592.94) writing to politicians and others about The expenditure amounted to ------the things that matter to us and making $7,479.97, leaving an excess of a submission about the risks posed by expenditure over income of $2,592.94. the covidSafe App, which turned out to The cost of The Whistle production BALANCE SHEET, 30 JUNE 2020 be a flop for the usual reasons. I hope and mailing has raised due to the ACCUMULATED FUND BROUGHT to do more this coming year with your increased postage costs, and the subsi- FORWARD $12807.28 help. dy for the annual conference greatly LESS EXCESS OF EXPENDITURE Some serious whistleblowers have benefits the members. I trust that in the OVER INCOME ($2592.94) done really well this year by remaining future years, the association will be anonymous after getting a politician able to continue subsidising the con- TOTAL $10214.34 and the media involved, which seems ference. The deposit paid for the 2020 to have given them some control over conference, which is cancelled due to ASSETS AT NATIONAL the events while keeping them safely the Covid crisis, is being transferred BANK $9614.34 out of the limelight and harm’s way. for the conference planned for 2021. DEPOSIT FOR 2020 This approach predates our flaky legis- CONFERENCE $600.00 lated whistleblowing systems and is still to be recommended. I’ll give you TOTAL $10214.34 just two examples, both of which are likely to leave a real legacy for the 8. Other Reports good.

8. (1) Cynthia Kardell, President

This year like the last has been a year like no other, although for very different reasons. Covid-19 has laid Feliks didn’t say anything about waste to many a plan and none more WBA’s bank vault. He would important to us than the annual confer- have if he knew how to find it. ence and AGM we had planned for this weekend. Still, at least some of us are Again, I want to thank the member- together today in space and time ship for their continued support of the courtesy of Zoom, but even so I really Association, and the generous dona- look forward to seeing you all in tions that keeps the battle for whistle- person on 20–21 November next year. blower protection work going.

22 The Whistle, #105, January 2021 Kerry Packer’s Crown Resorts unethical practices, after external in- slam the door shut when things get a whistleblowers. Last July insider surance agents were offered financial little too close for comfort? whistleblowers went to Independent incentives to terminate coverage for MP Andrew Wilkie on how Crown injured workers. In NSW the relevant enabled money laundering by organ- regulatory authority has referred iCare ised criminal syndicates, who worked to the ICAC amid repeated warnings through junket operators to infiltrate about its deteriorating financial posi- Crown’s casinos in Melbourne and tion and solvency risks. Perth. They got together with Nine’s Both are examples of what can be “60 Minutes” program, which ran with achieved when the wrongdoing is the story. The Independent Liquor and investigated on its merits. Gaming Authority then appointed for- mer judge Patricia Bergin to also inquire into Crown’s suitability to hold the new Barangaroo gaming licence in Peter Dutton is not Sydney. Director and (then) chair, Cynthia’s favourite person former MP Helen Coonan, acknowl- edged in evidence that Crown had But earlier this year McBride decid- facilitated money-laundering on an ed to sue the government for suing industrial scale. She with other direc- him, claiming it is a reprisal and illegal tors later jumped ship. Bergin is to under whistleblowing legislation. If he hand down her report before Christ- succeeds the government may have to AGM minutes can be pretty boring, so we mas, with the NSW government hav- need to spice them up a bit. A risk is that drop its prosecution, but I can’t see ing decided that the new Barangaroo you’ll just look at the pictures and not read that happening as it may mean having casino will not open in January as the text. Now get back to it. to claw back some of those “terror” planned. Bergin also castigated Kerry related laws that made it all possible in Packer and Crown for their part, with And then there’s defence lawyer the first place. This is why I think it nineteen of its employees, including David McBride, who was not able to abandoned the idea of prosecuting three Australians, having to plead remain anonymous. He blew the whis- journalists Annika Smethurst, Sam guilty to illegally organizing gambling tle internally in 2014, before leaking Clark and Dan Oakes, but pushed on trips out of mainland China. the “Afghan files” to the ABC two with persecuting David McBride, years later, to stop the logjam further Richard Boyle, Witness K and his up the line of command. The govern- lawyer Bernard Collaery as a way of ment slapped a criminal suit on him in consolidating its position in the face of 2018, a month before approving the real opposition from media giants appointment of former judge and re- News.com and Nine News. This servist Paul Brereton SC to inquire shouldn’t be seen as good news, into those very same war crimes because those terror-related laws have allegedly committed in Afghanistan got to go. between 2005 and 2016. A redacted Even so, whistleblowers seem to be version of the Brereton Report was far more prepared, more strategic and made public only days ago, with the less risk averse, knowing that the PID prime minister announcing a new systems are seriously conflicted in Office of the Special Investigator their design to frustrate, even punish (OSI) within Minister Dutton’s portfo- whistleblowing, which is why I’m lio to work out who, of the 19 men optimistic about the public’s best Because of bad publicity, iCare has singled out, could be brought to trial. interests remaining paramount. been casting about for a new name A separate oversight panel called the

Afghanistan Inquiry Implementation 9. Other Business. Worksafe and iCare whistleblow- Oversight Panel would also be estab- ers. Icare whistleblowers went to NSW 9. (1) Richard Gates proposed a special lished to oversee OSI investigations thanks to Cynthia for all her good Greens MP David Shoebridge and and provide quarterly reports directly journalists, triggering an Upper House work. to Defence Minister Linda Reynolds. Seconded by Robina Cosser inquiry as the backdrop to a much The Prime Minister enthusiastically wider story. The Age, The Sydney Passed explained how it might take years to Morning Herald and ABC TV’s “Four “get it right.” If his history in so far as 9. (2) AGM 2021 in Sydney (Parra- Corners” pulled together a joint inves- the Murray Darling Basin and Ruby matta) on the 22 November 2021 tigation into the $60 billion NSW Princess royal commissions is any- state-government-run compensation thing to go by, he didn’t mean putting 10. AGM closed 10.30AM system and Victoria’s Worksafe, it to rights. Why else make Peter which Ombudsman Deborah Glass Dutton the OSI’s gatekeeper, if not to found had presided over immoral and

The Whistle, #105, January 2021 23 Whistleblowers Australia contacts Rhetoric versus reality

Australia’s political leaders seem to think they care about Postal address PO Box U129, Wollongong NSW 2500 whistleblowers. Just look at the wonderful whistleblower Website http://www.whistleblowers.org.au/ laws. Facebook https://www.facebook.com/Whistleblowers- For the reality, just observe what the government is or isn’t Australia-Inc-172621456093012/ doing in regard to these individuals. Members of the national committee http://www.bmartin.cc/dissent/contacts/au_wba/committee.html

Previous issues of The Whistle http://www.bmartin.cc/dissent/contacts/au_wba/

New South Wales contact Cynthia Kardell, phone 02 9484 6895, [email protected]

Wollongong contact Brian Martin, phone 02 4228 7860. Website http://www.bmartin.cc/dissent/

Queensland contact Feliks Perera, phone 0410 260 440, [email protected]

Queensland Whistleblowers Action Group Website www.whistleblowersqld.com.au

Secretary: Greg McMahon, phone 07 33787232

Whistle Editor: Brian Martin, [email protected] Phone 02 4228 7860 Address: PO Box U129, Wollongong NSW 2500 Thanks to Cynthia Kardell and Lynn Simpson for proofreading.

Whoops, ran out of space. There are others too.

Whistleblowers Australia membership

Membership of WBA involves an annual fee of $25, payable to Whistleblowers Australia. Membership includes an annual subscription to The Whistle, and members receive discounts to seminars, invitations to briefings/ discussion groups, plus input into policy and submissions. To subscribe to The Whistle but not join WBA, the annual subscription fee is $25. The activities of Whistleblowers Australia depend entirely on voluntary work by members and supporters. We value your ideas, time, expertise and involvement. Whistleblowers Australia is funded almost entirely from membership fees, donations and bequests. Renewing members can make your payment in one of these ways. 1. Pay Whistleblowers Australia Inc by online deposit to NAB Coolum Beach BSB 084 620 Account Number 69841 4626. Use your surname/membership as the reference. 2. Post a cheque made out to Whistleblowers Australia Inc with your name to the Secretary, WBA, PO Box 458 Sydney Markets, Sydney, NSW 2129 3. Pay by credit card using PayPal to account name [email protected]. Use your surname/membership as the reference. New members: http://www.bmartin.cc/dissent/contacts/au_wba/membership.html

24 The Whistle, #105, January 2021