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

Whistle No. 60, October 2009

Newsletter of Whistleblowers Australia

Allan Kessing: read comments on his saga, pages 7–11 and 16

Media watch

Let’s protect the brave Sherron Watkins, the corporate vice- The Senate committee hearing president who revealed accounting involving Godwin Grech raises ones who speak out fraud at Enron, and Toni Hoffman, important questions: whether Grech Godwin Grech’s plight puts a new who disclosed life-threatening prac- was influenced to appear; the veracity spin on “without fear or favour.” tices at the Bundaberg Hospital, are of his testimony; and whether the Kim Sawyer examples. presence of a supervisor and the The Age (Melbourne), 29 June 2009 Most whistleblowers, however, are disagreement among senators inter- not unequivocally vindicated. They fered with his testimony. THE case of Godwin Grech has often struggle for years to shore up We expect witnesses to be truthful, important implications for public their credibility and, by implication, and we also expect them to be interest disclosures in Australia. It has the credibility of their whistleblowing. protected. brought into focus whether a possible The Grech case shows how quickly the Witnesses to senate inquiries, like whistleblower was indeed a whistle- situation for a possible whistleblower whistleblowers, are on their own. blower. It has turned a government can invert. There is no room for error, They are given protections codified with a commitment to public interest and certainly no room for fraud. by parliamentary privilege, including disclosures into a government pursuing There may be uncertainty about the protection against legal action, the public service leakers. And it has evidence and motivation of Godwin right to object to questions, and shown the politicisation of Senate Grech, but there is no uncertainty protection against interference with committees. about one matter. Most public servants evidence. When Grech testified before the will now think twice before they Witnesses may not be intimidated Senate Economics Committee on June appear before a Senate committee. Or or induced in relation to their evidence. 19, many perceived him as an honest at least they will think of Grech and But the best protection for a witness is public servant, possibly struggling to many will assess the risk to their the truth. blow the whistle on cronyism. careers and hope that they will not be Whistleblowers become accus- compelled to testify. tomed to being targeted and Senate The risks are high. Are they worth inquiries amplify the problem. In it? Ironically some, if determined to general, witnesses to Senate inquiries disclose, may choose to do so anony- incur substantial risks, all for the mously. They may become the leakers public interest. In contrast, politicians that the government is determined to use the inquiries as a blood sport. eliminate. In February this year, the Legal and Senate inquiries have played an Constitutional Affairs Committee of important role in our democratic the House of Representatives, chaired process, acting as a counterbalance to by Mark Dreyfus, tabled a report that the abuses of government and to the recommended legislation to protect inefficiencies of the bureaucracy. They public sector whistleblowers. The have addressed topics as diverse as Federal Government is yet to act on gifted children, petrol sniffing, higher these recommendations. education, and indeed whistleblowing If the Government does decide to itself. act, it should consider the possibility of Godwin Grech The two Senate inquiries into aligning whistleblowing protection and public interest whistleblowing of 1994 the protection afforded witnesses to A week later, following allegations of and 1995 are still the benchmarks for parliamentary inquiries. a fraudulent email and serial leaking, Australian whistleblowers. The 39 Testifying to a Senate committee is the credibility of Grech and his recommendations of the tabled reports often a form of whistleblowing and whistleblowing was in doubt. For are the recommendations that whistle- there should be similar protections and many, the good whistleblower had blowers continue to reference. responsibilities. turned bad. The Senate inquiry is one of our Australians rely on honest public Whistleblowing advocates have most important political institutions. servants who commit to their service struggled for years to establish its However, it is an institution at risk. without fear or favour. The public legitimacy. The public inevitably link In the last years of the Howard unravelling of Godwin Grech at the the credibility of the whistleblowing to government, the Labor opposition and Senate inquiry is a loss for all of us. the credibility of the person speaking minor parties were rightly concerned When the political imbroglio disap- out, rather than the credibility of the about the weakening of Senate pears, politicians may reflect on the information they disclose. inquiries. damage done to our institutions and, in The most successful whistleblow- Given recent events, they should particular, to the role of witnesses to ers are those who expose a serious have greater concerns. parliamentary inquiries. issue and are unequivocally vindicated.

2 The Whistle, #60, October 2009 They may find that there are fewer “There is a strong open govern- as the “Lincoln Law”). witnesses to make the disclosures that ment underpinning — a human rights The False Claims Act includes a our democracy requires. Perhaps then underpinning — that lies at the base of qui tam provision that authorizes there will be an inquiry into Senate US whistleblower protection that I do private citizens, called “Relators,” to inquiries. not see called forth in the same way sue those defrauding the government here.” Despite the fact that the US and provides a financial incentive in Dr Kim Sawyer is a member of whistleblower laws protect disclosures the form of a percentage of any Whistleblowers Australia. to the media, Professor Vaughn said recovery. The term qui tam comes most public employees in the US still from the Latin phrase qui tam pro preferred to have their concerns dealt domino rege quam pro sic ipso in hoc US gives more protection with inside government agencies. parte sequitur. “We are looking over 20 years of This translates to “Who as well for to whistleblowers experience with the federal whistle- the king as for himself sues in this than Australia blower provisions and I think most matter.” Qui tam provides a financial Chris Merritt people tend to go inside” government incentive for whistleblowers to come The Australian, 2 October 2009 agencies with their concerns about forward. False claims acts and qui tam maladministration. He said the strength provisions presently exist at federal AFTER examining the proposed of the Australian proposals on whistle- and state levels. scheme to protect whistleblowers in blower reform was their method for Under the Federal False Claims the commonwealth public service, dealing with complaints inside the Act, once notified of the Relator’s visiting US academic Robert Vaughn public sector. lawsuit, the U.S. Department of Justice noticed a fundamental difference from But the assumption behind US has the choice of intervening in the the equivalent laws in the US. Unlike whistleblower laws “has always been role of plaintiff. The act provides that the scheme being considered by the that the opportunity for external the contemplated lawsuit remain sealed Rudd government, whistleblowers in disclosure is an incentive for public for at least 60 days during the the US receive legal protection when employers to develop internal mecha- Department of Justice’s deliberation they expose maladministration either nisms that employees find credible and about whether to take over the to the media or to public sector usable”, Professor Vaughn said. He prosecution of the claims. In cases agencies. said most public employees in the US where the government decides to The Rudd government is consider- who make disclosures to the media had intervene and a favorable award ing a scheme that aims to have all already tried to have their concerns results, the Relator’s share is not less instances of wrongdoing handled addressed internally. “They are not than 15% but not more than 25% confidentially inside the public service. required to by the law, but that is the (based upon the extent of the Relator’s As a result, only limited legal protec- general practice,” Professor Vaughn contribution to the successful prosecu- tion is extended to whistleblowers who said. tion). speak to the media about problems If the government does not inter- with public administration. vene, the case may proceed with the One of the reasons for the sweep- Needed: new Wall Street Relator acting in the qui tam capacity ing protection of whistleblowers in the of plaintiff. When the Relator shoul- US is the fact that the original US whistle-blowing laws ders the litigation burden and prevails, whistleblower law, the Civil Service We need to give financial incentives the share is not less than 25% but not Reform Act, was introduced after the for people to blow the whistle on more than 30%. Moreover, if the abuses of power that came to light in Wall Street. Why? Because the SEC Relator was a whistleblower who was the media during the Watergate scan- isn’t protecting us. illegally retaliated against, the False Claims Act provides for additional dal in the early ’70s. After Watergate, Bill Singer the goal of US lawmakers was not remedies, including reinstatement of Online, 18 September 2009 seniority, double back-pay with merely to improve the bureaucracy’s complaint-handling system, but to interest, reimbursement of litigation DURING the American Civil War, the costs and reasonable attorneys’ fees. expose government abuses to scrutiny. Union Army needed to purchase a “They were viewed as open gov- In many ways, the above approach wide range of supplies for its troops. suggests an excellent device to ensure ernment provisions,” said Professor Unfortunately, many defense contrac- Vaughn who is based at American the ongoing reform of Wall Street [the tors saw the situation as an opportunity US financial sector]. Given the horren- University in Washington. “Like to engage in war profiteering. Freedom of Information, they were dous job that the Securities and Contractors sold so much substandard Exchange Commission (SEC) and also viewed as protecting the First equipment and tainted food to the Amendment rights of both public other regulators have done, more eyes military that the effort to wage and ears should be helpful — and employees and citizens who would effective war was being compromised. receive information that would be the particularly if those watchers and In 1863, in response to that threat, listeners are motivated by the lure of a foundation for the exercise of their Congress passed the False Claims Act First Amendment rights,” he said. bounty. As such, I propose that we (31 U.S.C. § 3729–3733, also known implement an act modeled after the

The Whistle, #60, October 2009 3 False Claims Act replete with its qui measured in trillions of dollars of the Conservatives rode to power tam provision to deputize millions of damage, devastation to the lives of largely on their promises to root out Americans to patrol the Wall Street millions of Americans, and an corruption in government. beat. incalculable loss of national prestige “We had hoped when it was The downside to my proposal is and honor. Within bounds of propriety, brought into force that the office would that it truly goes against the American tossing the profit incentive into the be … proactive, and it wouldn’t be like grain. We have a deeply embedded ring may motivate industry insiders the Maytag [washing machine] repair- distaste for so-called stool pigeons, and watchdogs to come forward with man and sit back and say, ‘Well, snitches, rats, tattle tales — the list of their concerns and allegations. The everything seems to be fine,’” he said. unflattering names is quite lengthy. An challenge is to do so without compro- Some whistle-blowing advocates unfortunate byproduct of this honor- mising our precious civil rights. go even further, calling on Ouimet to among-thieves creed is that crime, step down less than two years into her often heinous, often goes unpunished Bill Singer of BrokeAndBroker.com is a seven-year term. because of a lack of witnesses or tips. veteran regulatory lawyer, an outspo- Moreover, in the US we have a ken critic of ineffective regulation, and thing about folks standing up, toeing a staunch advocate for the rights of smaller firms, individual registered the line and pointing the accusatory persons, and defrauded investors. finger in the face of the alleged crook. The idea of someone hiding in the shadows and whispering names troubles us. We have enshrined in our Critics call on federal Constitution and Bill of Rights the whistle-blowing watchdog right to confront your accuser and to see the details of the information being to step down Christiane Ouimet used against you by your prosecutor. Andrew Mayeda As a lawyer often employed in the role Canwest News Service, 5 July 2009 “It’s not polite to call for an agent of of a defense attorney, I appreciate and Parliament to be removed, but it’s very respect those protections. OTTAWA, CANADA — Nearly two hard to see how Madame Ouimet can Sadly, that is all too often the years since she was appointed by the salvage her reputation,” said David legacy of the Madoffs [referring to Harper government, the head of a Hutton, executive director of Federal pyramid seller Harry Madoff] and their federal agency designed to protect Accountability Initiative Reform, an ilk. They provoke reactions that are not whistleblowers is off to an under- organization that supports whistle- always balanced or palatable. Such whelming start, critics say. blowers. criminals victimize their victims As part of the accountability For the system to work, whistle- through their fraud but also victimize reforms put in place in the wake of the blowers must trust the person to whom our society by forcing us to take sponsorship scandal, the Conservatives they report wrongdoing, and believe measures to protect ourselves in the beefed up legislation that gives public that action will be taken, said Hutton. future — and those measures are servants a confidential outlet for “I think she has completely blown her frequently at the cost of our civil reporting wrongdoing, while protecting credibility with those people.” liberties and way of life. Which is why them from reprisals. In August 2007, As a former bureaucrat at the it was all the more critical for Wall Prime Minister Stephen Harper Public Works department, Allan Cutler Street’s regulators to have done their appointed Public Sector Integrity blew the whistle on contracting job in the first place. Commissioner Christiane Ouimet to irregularities in the now-infamous My call for drafting a federal law enforce the new act. sponsorship program. Cutler, who ran that would provide for qui tam However, Ouimet has yet to report as a Conservative candidate but was incentives to Wall Street whistleblow- a single case of public-sector wrong- defeated in the 2006 election, now ers is not without the above-noted doing to Parliament. Her office has not heads an organization that assists perils. I too have a dislike for folks referred any cases to a new tribunal of whistleblowers called Canadians for who hide behind anonymity and report senior judges that has the power to Accountability. their colleagues and co-workers to the award as much as $10,000 in compen- The small organization, which runs boss or the government. I too fear sation to whistleblowers who have on volunteer staff, has heard more than turning our society into one filled with been punished for coming forward, as 35 cases of wrongdoing in the public informants in our homes and offices. well as to discipline their bosses. service, according to Cutler. Truly, there is something fundamen- Of the 114 cases of alleged wrong- He believes that Ouimet, whose tally offensive to our Constitution doing and the 42 complaints of office spent $3.6 million last year and when our fellow citizens are acting as reprisals reported to her office, Ouimet employs 20 full-time staff, should be government spies against our own has taken on five formal investigations more willing to “rock the boat” like people. — none in the last fiscal year. other officers of Parliament, such as Still — the cost of our failure to New Democrat MP Paul Dewar Auditor General Sheila Fraser and detect and timely prosecute the most said the performance of the office has Parliamentary Budget Officer Kevin recent spate of Wall Street fraud is been disappointing, given the fact that Page.

4 The Whistle, #60, October 2009 “It’s not working,” said Cutler. “It Ultimate risk taker the banking crisis unfold. He had many can work, if you have the right person Elena Curti conversations with a Catholic friend — at the head. There’s got to be a desire The Tablet, 1 August 2009 a BBC journalist — about whether he to make it work.” should speak out and what his motiva- Ouimet defends her record, noting tion would be if he did. Even at that PAUL MOORE warned his employers at that she has spent considerable time the banking giant HBOS that he stage he was concerned that he should and energy setting up the office while believed lending had got out of not be motivated by revenge but by the dealing with numerous complex cases. control. He claims he lost his job as a public interest. He agreed to be She points to a case where a result. In going public with his story, interviewed for the BBC Radio 4 whistleblower reported that a colleague he tells Elena Curti, he found the Money Box programme on 30 October at a “busy federal mechanical facility” inspiration to be a whistleblower 2008 — his fiftieth birthday. It was had engaged in potentially life-threat- through his Catholic faith then he came up with the memorable ening actions. The commissioner It comes as no surprise that Paul phrase that trying to rein back HBOS spoke with a senior official at the Moore trained as a barrister. One can had been “a bit like being a man in a organization, and the “situation” was easily imagine him in wig and gown rowing boat trying to slow down an oil addressed within 48 hours. querying the most minute details of a tanker.” “If I may use a fire-station analogy, witness’s account during his cross- But he was desperate to find a way we don’t wait till there’s a huge fire,” examination. He took the same to tell the whole story and the opportu- Ouimet said. forensic approach in his post in charge nity presented itself when he learned Nevertheless, she acknowledges of risk at the financial services giant that some of the banking executives that her office still needs to build HBOS at the height of the credit boom: involved in the credit crunch had been confidence among the roughly 400,000 scrutinising documents, conducting summoned to appear before the public servants covered by the act, and structured interviews and observing Treasury Select Committee. He relates she says her office plans to invest more meetings with an eagle eye. He may that he had just finished reading about this year in “getting the word out.” have done his job too well; when he this and was sitting in his kitchen with “Certainly, at this time, we have a discovered the bank was lending on a a monk from Ampleforth Abbey when lot of people who come with private reckless scale he urged his masters to something dramatic happened. grievances, as opposed to [cases in the] row back. Instead he was “summarily “A voice came down from on high public interest. So we need to invest dismissed” in 2005. — I am quite serious about this — and more time explaining what our role is. Then there he was last February, it said: ‘Now’s the time to witness It is confusing to citizens and to public before the Treasury Select Committee, fully’. It was as straightforward as that. servants.” setting out meticulous details of the It was extraordinary,” Moore chortles Others say the government needs to bank’s catastrophic lending. Overnight as he recalls the moment. He then make legislative changes to better Moore became the “HBOS whistle- contacted the clerk of the select protect whistleblowers. Joanna blower” and for several days was in committee and offered to testify. Gualtieri, a former Foreign Affairs the eye of a media storm. Yet he says Although he didn’t know it at the time, employee who blew the whistle on he felt perfectly calm, describing it as talking to the select committee would excessive spending on overseas “a tremendous moment of grace.” He protect him from legal action by residences, has been battling the was, he explains, impelled by his HBOS for breaching a gagging order government in court for more than 11 Catholic faith to set out what he had because his evidence was covered by years. learned about the scale of the risks parliamentary privilege. Moore told taken by HBOS and why much of the the committee that the fundamental British banking industry imploded in cause of the banking crisis was an spectacular fashion last autumn. inadequate separation and balance of As Moore sets out his story, he powers between the executive directors spells out what needs to happen to on the one hand and the non-executive prevent another economic crisis. In the directors, who were supposed to be same breath he quotes many of holding them in check, on the other. Christ’s sayings about the corrupting “Governance and non-executive governance has been nothing less than effects of money. Days earlier he had Joanna Gualtieri delivered a lecture to the Christian veneer. There have been the great and Association of Business Executives the good in these non-executive Under the current law, the integrity and had agreed to take part in a confer- positions but really they all come from commissioner can only cover up to ence being called by Archbishop the same clubs and businesses, and $3,000 of a whistleblower’s legal Vincent Nichols on the themes raised they are on cross boards, and there is costs, she noted. “The way the office by Pope Benedict’s social encyclical, not enough independence or challenge was established, it was just doomed to Caritas in veritate. He seems satisfied within the non-executive sector.” fail,” said Gualtieri. that he is at last putting his experience The chief casualty of Moore’s to good use. testimony was the man who dismissed him from HBOS, Sir James Crosby, Moore says he deliberated long and hard about what to do as he watched who had by this time moved on to

The Whistle, #60, October 2009 5 become deputy chairman of the City go like the lemmings rapidly towards Moore has looked at Pope watchdog, the Financial Services the cliff edge, and in fact that is what Benedict’s encyclical Caritas in Authority (FSA). Sir James stepped was going on in the banking world. veritate and says that, while he down from the FSA while strongly Everybody was hurtling headlong admires the principles it sets out, he’s denying Moore’s account. towards the cliff edge and nobody was doubtful the world will listen. He has Sir James was the former chief of able to raise the challenge and anybody little faith in the efficacy of banks’ the Halifax Building Society who who did was removed.” social responsibility reports and ethics brokered the deal to merge it with Did he believe he was sacked for statements for the same reason. Bank of Scotland to create HBOS in standing in the way of HBOS making He sees enforcement here too as 2001, becoming chief executive of the money? key and launches into a list of new bank. Moore admits finding it measures he would introduce if he was difficult at first to suppress a sense of in charge of the FSA. They include a “human glee and satisfaction” that his company-wide ethics training nemesis had been brought low, though programme for all financial sector he then felt sorry about it. He believes companies; intensive training for the Sir James and other executives he top three levels of management on worked with at HBOS were essentially ethical decision-making and a section good people who had lost their added to any strategic decision-making perspective when it came to business document that says “ethical considera- and making money. Did he, too? Paul Moore tions taken into account.” Terms such “Oh yes, I only really re-found my as risk management and compliance faith in about the year 2000. I am just “Yes. Without a shadow of a doubt. may not mean much to those of us as bad as anybody else.” But then he Objectively the inference is over- outside the banking world but Moore qualifies that, saying he never forgot whelming that I was removed because says that essentially they are about about ethics and always had a I challenged the strategy for continued excellence. reputation for telling the truth. He put growth.” “They are about serving customers this down to his education at the The chief conclusion Moore draws and serving society. They are fancy Benedictine public school, Ample- from his experience is that it is only words for doing things really well,” he forth. The abbey has been a continuing possible to drive ethical behaviour into said. influence on his life. He sent his the business world by creating a tough Moore has not had a permanent job children there and moved with his regulatory environment. He believes since leaving HBOS and he confesses family to Ampleforth village when he the three key internal control functions that he would love to take a role in a took his first job at HBOS in 2002. — risk management, compliance, business absolutely committed to The spirituality that exists in the internal audit — should not report to being run along ethical lines. In the Ampleforth valley is, he says, very the executive. They should report to a meantime he is hoping to get some strong and has been a great source of dedicated non-executive director who advisory work “to keep my head above assistance in what he calls “the whole is accountable for oversight and water.” He will also relay his views to sorry saga.” assurance. the FSA and make a submission to the Moore studied classics at univer- “That means if I hadn’t been Walker consultation. He believes the sity, trained as a barrister and began reporting to James Crosby and I had economic crisis is “a divine shot across working in financial regulation in the been reporting in to the non-executive the bows” and that voices like his are mid-1980s. He was a partner at KPMG director, I would have been able to do now being heeded. specialising in regulatory services my job with protection. That, to me, is He is encouraged that other between 1995 and 2002, and advised a the single and simplest and most Christian business leaders such as number of FTSE 100 clients. His first profound change that needs to be Stephen Green of HSBC are making job at HBOS was head of risk and made.” their views known and says he would compliance for the insurance and It is for this reason that he is love to be part of a Christian economic investment division. He was promoted critical of the review by Sir David think tank, were one to be set up. to head of Group Regulatory Risk in Walker into bank corporate govern- Communication, he believes, is not 2003 when the regulator began to ance commissioned by the Treasury. something the Church is generally express concern about the level of risk Walker, says Moore, has “fudged the good at and it is up to lay people like being taking on by HBOS. Moore says issue” by suggesting the internal himself to step up to the plate. he had a very strong reputation for control functions report to both the Aside from being active in his local rigour with the regulator and he set to executive and the non-executive. church, he is a director of XT3.com, a with his customary zeal. “Anyone who has worked for an social networking platform that was “It was perfectly clear things were organisation that has dual reporting created for World Youth Day in out of control. There is a cultural lines will know that they very, very Sydney last year. indisposition for people to have their rarely work. If the executive has power Finding meaning in what happened work checked. If you get into ‘group- to remove you there is a conflict of to him at HBOS has been a lengthy think’ and nobody can challenge an interest.” process. His wife, also a devout assumption or a paradigm, it can often Catholic, has been unflinching in her

6 The Whistle, #60, October 2009 support, as he explains: “When I was International now bills as an “endemic the disclosure of telephone recordings. fired I went out into the street and I surveillance society.” Barely a month Until it does, despite the risks, was crying, I felt so awful about the goes by without the government journalists who take their fourth-estate whole thing. It really did crush me for attempting to introduce another role seriously are obligated not to take a long time. I was trying to do what Orwellian state surveillance scheme. the legislation seriously. was right and I was being treated But now, like Berlusconi, these elites The actions of major newspapers shabbily. I phoned up my wife and she purport a sudden interest in protecting are “voted on” every day by their said, ‘It’s all part of God’s plan.’ I the privacy rights of the people, not by readers. Whatever their faults, popular didn’t understand that then, but I do rolling back such schemes, but by newspapers remain the most visible now.” gagging the press. and the most democratically account- Despite this, The Guardian, in able institutions in the country. Their seeing an opportunity to attack a mandate to inform the public vastly journalistic and class rival, has been exceeds that granted to the unelected The News of The World doing its level best to castrate British and the rarely elected at Westminster, didn’t go far enough journalism by tut-tutting in article after who are nonetheless quick to grant Julian Assange article about The News’ alleged themselves a blanket exemption from Wikileaks editorial, 11 July 2009 sourcing improprieties. A tabloid all censorship. newspaper doing investigative jour- Thomas Jefferson had it right when THIS week the British paper The News nalism! Journalists skirting the law to he stated, “If forced to choose between of the World was condemned by The expose the truth! The long-suffering of government without the press and the Guardian for hiring private investiga- British billionaires — and Royalty! press without government, I would tors. The investigators were alleged to And did we mention that The News is surely choose the latter.” have accessed messages left on the owned by Rupert Murdoch? — so, um answering machines of thousands of … you know, the enemy of my enemy the UK’s social and political elite. The and all that! The Guardian’s coverage information was used (possibly is disproportionate. It is moral oppor- Blowing the whistle unknowingly) by the paper to develop tunism. It is an excuse to mention Protection for whistleblowers in its stories. tabloid stories in a broadsheet. And it Australia is patchy and inconsistent, The News of the World didn’t go is dangerous. The result will be a writes Norman Abjorensen far enough. publishing climate and probably Inside Story, 10 September 2009 Earlier this year, WikiLeaks legislation aimed at keeping the British released 86 telephone recordings of public in the dark. THE DISGRACEFUL pursuit of the corrupt Peruvian politicians and The right to freedom of speech is former customs official Allan Kessing businessmen. The revelations became not short hand for the right to pontifi- over his revelation of serious security the front page of every major paper in cate. We defend speech freedoms for lapses at Sydney Airport highlights an Peru and the journalists involved, such their connection to a deeper underlying official obsession with secrecy in as Pablo O’Brian, became national concept — the right to know. Without Australia and a major deficiency in heroes. understanding the world around us we protection for whistleblowers acting in Europe has had its fair share of can not function. Without an informed the public interest. Mr Kessing faces similar exposes. Italy’s Prodi govern- public, democracy has no meaning and the possibility of further charges, ment was toppled by such revelations civilization is adrift. Through having already been convicted under and, in December 2007, Silvio understanding the truth about ourselves section 70 of the Commonwealth Berlusconi, who was then opposition and the world around us, we are able to Crimes Act, for which he received a leader, was himself exposed on a advance and survive. nine-month suspended prison sentence phone call leaked from an anti- The News of the World should have and was ordered to pay a $1000 good corruption investigation. Further released the tapes made by its private behaviour bond. The federal police are revelations from Berlusconi’s circle investigators. The elite exposed are the now considering whether to take were expected later this year, but by usual paymasters of such private further action after he admitted to May the Italian Prime Minister had intelligence firms. The democratic leaking a report to a staffer of a federal introduced “British style” legislation to process should not be denied the same Labor MP. prevent the Italian press from publish- high quality information that There is no doubt that Mr Kessing ing them. Berlusconi justified the new businessmen, celebrities and oligarchs was acting in the wider public interest law by saying that the privacy of acquire on a daily basis. — and immediate action was taken to Italian citizens was threatened by the The real scandal is not that some address issues subsequently revealed in press. British papers used private investiga- newspaper articles based on the same Now in Britain, we see similar tors to find out what the public wants report — and there is no suggestion sanctimonious hand-wringing over the to know. It is that more did not. It is that he acted for personal gain. Indeed, “privacy rights” of the British elite. that The News was extorted out of a he now faces a significant debt as a These individuals, through active million pounds because the relevant result of his legal fees scheming and quiet acceptance, have British legislation does not have an Despite some perfunctory legisla- turned the UK into what Privacy accessible public interest defence for tion, official Australia has always been

The Whistle, #60, October 2009 7 reluctant to acknowledge that the As things stand, there is little too narrowly defined. willingness of public officials to incentive for an official to blow the Only three states — South Austra- disclose wrongdoing within their whistle, no matter how serious the lia, Queensland and Western Australia organisations is an essential element in matter at hand. A study in 2007, led by — have seen fit to detail the types of a robust democracy, as important as Griffith University, surveyed public public sector wrongdoing covered, and the work of an auditor-general or an servants in the Commonwealth and they are also the only jurisdictions that ombudsman. Although nearly all three states and found that 71 per cent provide remedies for potentially or Australian jurisdictions have intro- of the almost 8000 respondents had actually aggrieved whistleblowers. duced relevant legislation for the observed at least one instance of Only one jurisdiction, New South public sector since 1993, both the wrongdoing or serious maladministra- Wales, extends protection in certain content of the laws and the practice of tion in the preceding two years. Of circumstances to officials who make handling whistleblowing continue to those who reported wrongdoing, 22 per public interest disclosures to a member be vexed issues. Laws to protect cent replied that they had been the of parliament or the media. whistleblowers are patchy at best, and victim of reprisal from managers or co- Australia’s efforts in enacting the Commonwealth remains by far the workers. effective legislation protecting public greatest laggard, despite promises by interest disclosure lag behind many Labor to address the issue. The fact THERE IS NO universally accepted comparable countries. In Canada, for that the sweeping provisions of section definition of whistleblowing, but one example, the Public Servants Disclo- 70 of the Crimes Act, under which Mr that has gained broad acceptance sure Protection Act lists the “wrong- Kessing was prosecuted, still remain emanated from a Senate committee doings” that may legitimately be on the statute books is a monument to inquiring into whistleblowing in 1994: revealed, makes illegal any reprisals inaction. “The disclosure by organisation against public servants who disclose or Existing federal protection for members (former or current) of illegal, co-operate with investigators and whistleblowers is limited in effect and immoral or illegitimate practices under establishes the office of the Public narrow in scope. Restrictions on the control of their employers to Sector Integrity Commissioner. In the Commonwealth public sector employ- persons that may be able to effect United States, the Whistleblower ees disclosing government information action.” The report came at a time Protection Act of 1989 — extended in are contained in a range of acts and when whistleblowing featured promi- 1994 to cover employees of some regulations, including the Crimes Act, nently on the political agenda, in the government corporations and employ- the Criminal Code Act, the Public wake of such well-publicised corrup- ees in the Veterans Administration — Service Act, the Privacy Act and the tion investigations as the explosive prohibits from reprisals federal Freedom of Information Act. Fitzgerald Inquiry in Queensland. In officials who blow the whistle on The primary source of protection 1991, a review of Commonwealth public sector misconduct and provides for whistleblowers is section 16 of the criminal law went so far as to accept a means of redress, including financial Public Service Act. This section notes the broad principle that in a democratic compensation, for any loss suffered. that a person performing functions in society “the public should have access Australia, it should be noted, also has or for an agency “must not victimise, to as much information as to the an international obligation to protect or discriminate against, an APS workings and activities of government whistleblowers, deriving from its employee because the APS employee and its servants as is compatible with signing of the United Nations Conven- has reported breaches (or alleged the effective functioning of gov- tion Against Corruption, which makes breaches) of the Code of Conduct.” ernment.” specific reference to protection for (Section 16 of the Parliamentary As a result of this peaking of public public interest disclosure. Services Act provides the same interest, a raft of public interest disclo- The reluctance to enact stringent protection for persons performing sure legislation was passed — South legislation to protect public interest functions in or for a parliamentary Australia in 1993; Queensland, the disclosures coupled with inadequate department established under that Act.) ACT and New South Wales in 1994; and compromised laws relating to But a report tabled earlier this year the Commonwealth 1999; Victoria freedom of information and an absence by the House of Representatives Legal 2001; Tasmania 2002; Western of shield legislation for journalists all and Constitutional Affairs Committee Australia 2003; and Northern Territory serve the cause of maintaining official indicates that only two-thirds of 2008. There is, however, significant secrecy and denying the public’s right employees in the Australian govern- inconsistency in the types of wrong- to know. ment are protected by section 16 of the doing about which protected disclo- Public Service Act; employees of sures can be made under these various Norman Abjorensen, of the Crawford agencies falling within the Common- laws. In some circumstances the School of Economics and Government wealth Authorities and Companies Act conduct about which a disclosure may at the Australian National University, is 1998 are not covered, and nor are be made appears to be too general and co-author of Australia: The State of Democracy former public servants, contractors or to extend beyond what we might consultants. The committee, chaired by regard as whistleblowing. In other Labor MP Mark Dreyfus, made a cases — where, for example, only series of recommendations for reform unlawful behaviour is covered, not but the government has yet to respond. maladministration — the conduct is

8 The Whistle, #60, October 2009 My side of the story committed to completing an important charged on 6 September with Allan Kessing and worthwhile task. providing the information under the Crickey.com, 14 September 2009 I went on long service leave in Crimes Act, s70 (ii). March 2004 and in September the Air I went to see Mr. Albanese a Border Security unit was abolished. couple of weeks later to ask for some I JOINED Customs in 1990 and retired in 2005. My first three years were on Two members with years of special- advice or assistance with the matter. the wharves then two at Sydney ized experience resigned and the other He was sympathetic and seemed airport. In January 1997 I was three were returned to general duties, a outraged by the government response. approached to join a new intelligence culpably incompetent waste of skills. I pointed out that the previous section analysing sea and air cargo information had been only to do with where I remained until returning to the the airport and that there were equally airport in 2001. serious deficiencies in cargo. I gave In 2002 I was recruited by the Air him a broad outline of problems, Border Security unit because of my noting especially that the soon-to-be- previous experience to analyse the implemented sea cargo automation large amount of material it had clearance would fall over. (Which it accumulated over the years that had did within 24 hours of going on line in never been brought together. It took October.) me a couple of months just to read and He asked for more information and I said that I’d prepare a précis of things try to collate and the picture that emerged was one of accumulated Allan Kessing that needed attention. This was abuses of Customs regulations, theft, supplied a couple of days later and smuggling and systemic criminality. I returned just before Christmas, subsequently used in Senate estimates Long time failures had been set in intending to retire as soon as the busy by Senator Ludwig in October. concrete during the run-up to the season was over in the New Year. Following this I was advised that a Olympics and many new rorts and Over the next couple of months, it was barrister had been found who would abuses had been accreted on since clear that my colleagues were still act pro bono for me and met with him then. extremely dissatisfied at the suppres- in his chambers. He agreed to take on As a result I was asked to write a sion of the reports and it seemed that the case without charge and on the risk analysis specific to one area: their only topic of conversation was second meeting he introduced me to a private security staff employed by the how this could be rectified. I agreed to solicitor whom he said he needed to privatized airport corporation. This take it to my local MP, Anthony assist. was completed and forwarded to the Albanese, but for whatever reason, I would be required to pay his costs Customs airport manager in early nothing came of that. and I agreed. 2003. It was met with shock and horror I retired on 10 May 2005 to care After four years, three barristers at the implications and rejected out of for my mother who was in the final and over $70,000 wasted I am a hand as impossible to implement for a stages of acute myeloid leukaemia and convicted felon. As I have no further number of commercial and operational in June The Australian published some means to pursue legal options I felt reasons. details from the reports. that at last let the true story be told. I was then directed to prepare an The government at first denied that In the previous Parliamentary overall report on the workings of the there were any such reports on the first sitting Senator Xenophon formally airport that are beyond the public view, day, on the second that they were a asked for an estimate of the costs the so-called “sterile areas” which are minority view, the third day DPM incurred by the Commonwealth in my restricted to employees issued with an [Deputy Prime Minister] John prosecution and what action was taken Air Security Identification Card. I took Anderson had announced his resigna- following the Wheeler recommenda- a random cross section of persons tion and on day four Chris Ellison tions. To date he has received no holding these IDs and this report was [Minister for Justice and Cutoms] response to the first and for the second completed in August 2003. Like its assured the nation that “… there was a report on actions taken with a forerunner this was also rejected. no need for any concern as we have the heading but entirely blacked out. This caused considerable dissatis- safest airports in the world.” Within a As to whether there have been any faction, not to say anger, within the week [Prime Minister John] Howard improvements resulting from the unit with talk of resigning or sending announced that Sir John Wheeler had Wheeler recommendations, the recent the reports to other senior officers, been commissioned to conduct a events at Sydney domestic and the even plain envelopes to newspapers. review “due to community concern.” continuing rorts of the security training Shortly afterwards the unit was told Within weeks he endorsed the and vetting recently reported are not that it was to be abolished and a rear reports entirely, repeated the recom- encouraging. guard action was fought without mendations therein and added substan- success. I was due to retire early in tial criticisms. Howard promised that 2003 and had only stayed on to write $200M would be allocated to the longer report because I felt implement this reform and the matter disappeared from public view. I was

The Whistle, #60, October 2009 9 For secrecy’s sake the Commonwealth Crimes Act, which tial case in which the overwhelming Chris Merritt outlaws unauthorised disclosures of inference” was that Kessing had The Australian government information by public provided The Australian with the 14 September 2009, p. 15 servants. There are no defences. leaked report. The prospect of a second prosecu- Now that it is known that LAST week, after Allan Kessing tion of Kessing over the airport Albanese’s office had a detailed revealed he had leaked a suppressed security leak has emerged just as the briefing on the report almost two report to the Labor Party when the government is considering a report on months before it appeared in The Howard government was in power, the whistleblower reform that Whistle- Australian, at least one part of that former Customs official received an blowers Australia has denounced as circumstantial case might not be so unexpected phone call. inadequate. powerful. Kessing knows the caller but is That report, which is before Special surprised by what he said: someone is Minister of State Joe Ludwig, was preparing to blow the whistle on the drawn up by a committee of the House Rudd government. of Representatives chaired by Labor’s The call was triggered by news that Mark Dreyfus QC. It calls for only Australian Federal Police are consid- minor changes to section 70, the ering laying charges against Kessing provision that helped convict Kessing. for a second time over the leaking of a Right now, the government has report on flawed security at Sydney nothing to gain by allowing a fresh airport. prosecution to galvanise support for

Kessing has already been convicted reform that goes beyond what it has in mind. Anthony Albanese of leaking that report to The Australian in 2005, a charge he continues to deny. The target date for its whistle- blower reforms has slipped back since Bell, who is now a judge of the High Now the AFP has taken a renewed Court, explained in her judgment that interest after he revealed that he did Ludwig took over from John Faulkner as Special Minister of State. In May, the trial judge gave the wrong answers indeed leak the report, not to The to questions that had been asked by the Australian, but to the Sydney office of Faulkner said the government “will develop legislation later this year.” jury. Labor frontbencher Anthony Albanese “The jury’s questions raised who is now Transport Minister. Ludwig’s office says there will now be a government response to the Dreyfus whether it was sufficient for the Crown Last week, the unnamed man on to establish that the appellant had the phone line told Kessing that he had report this year. Legislation will come next year. confirmed the accuracy of material that also been secretly leaking to Labor the journalists had obtained from when the Howard government was in Progress on an associated change to laws shielding journalists’ sources another source. His honour directed the office. jury that it was. The direction was The caller outlined what he had has also come to a halt since it, too, was criticised as inadequate. Those wrong,” Bell wrote in her judgment. supplied, named the senator who “To confirm the accuracy of a received it, and then made a promise: who want the government to go further include the media industry, the document leaked by another to a if Kessing is prosecuted, the caller will journalist may be to communicate a follow his example and reveal what opposition and enough Senate cross- benchers to guarantee the govern- fact, but in my opinion it is not to happened to highlight the need for communicate the document.” reform. ment’s bill will fail unless it is changed. The significance of Bell’s decision That call was motivated by a is that unless the jury was satisfied growing perception that the treatment But while the government may have its own reasons for opposing a beyond reasonable doubt that the of whistleblowers under the Rudd document was communicated — and government is at odds with what Labor second prosecution, would it be justified in accepting Kessing’s not merely confirmed — the Crown did in opposition. case failed. As a result of Kessing’s disclo- proposed request for a pardon? Even before Kessing revealed he This is where the second problem sures, Labor in opposition received an with the conviction arises. It concerns array of information on maladminis- had leaked details of the airport- security report to Albanese’s office, the inference that was drawn from the tration. Airport security was just the fact that a brief telephone call was beginning. He also warned that the there was at least one problem with his conviction. Now there are two. On made from a public call box near automation of the system for dealing Kessing’s mother’s house to one of the with sea cargo would fail as soon as it December 19 last year, when the NSW Court of Criminal Appeal turned down reporters who wrote the article for The was activated. He was right on that, Australian, Martin Chulov. just as he was later found to be right Kessing’s attempt to overturn his conviction, judge Virginia Bell made it This phone call was considered to about airport security. be relevant because of the proximity of All of Kessing’s information — clear that one part of the trial judge’s instructions to the jury was wrong. the call box to the house in Lilydale like the information supplied by the Street in the Sydney suburb of mystery caller — was handed to the That error, she said, was not enough to Labor Party in breach of section 70 of undermine the “powerful circumstan-

10 The Whistle, #60, October 2009 Marrickville where Kessing had been Even if the AFP charges Kessing Provisions such as section 70 have nursing his dying mother. and presents a brief of evidence to the their roots in 18th-century doctrines of What the court was not told was DPP, a prosecution would go ahead cabinet government when the only that the telephone box — which was only after the DPP had considered all form of recorded information was demolished this year — was just the public interest factors contained in handwritten notes. around the corner from Albanese’s clause 2.10 of the prosecution policy “This may not be appropriate for electorate office. of the commonwealth. the 21st century,” he says. “We just The call box once sat between the Those factors include: whether the have to rethink the settings; we have to two locations, a short walk from the prosecution would bring the law into rethink, perhaps, better grading of house at 30 Lilydale St and from disrepute; whether the consequences of information. Not all information needs Albanese’s electorate office at 334a a conviction would be unduly harsh to be kept secret. Marrickville Rd. and oppressive; whether the offence is “It raises the problem of over- Because Kessing did not give of considerable public concern; any classification of information, which we evidence in his own defence, the NSW mitigating circumstances; and the have seen in the intelligence area. This District Court and the prosecutors were effect that a prosecution would have on is a known problem in the Western never told about the leak to Albanese’s community harmony and public world,” Dreyfus says. office. confidence in the administration of This approach has much in Last week, when Kessing finally justice. common with the view of independent revealed his links with Albanese, there If Kessing does escape prosecution, senator Nick Xenophon, who has been was a flurry of speculation that Labor his disclosures have still raised doubts working closely with Kessing. might have been the real source for about one of the key aspects of reforms “There seems to be an assumption The Australian’s report. proposed by the Dreyfus report. that everything should be secret, and I Kessing finds such speculation “not The logic underpinning this scheme think that is a dangerous assumption,” just incomprehensible but bizarre.” He is that there will simply be no need to Xenophon says. told a press conference in Canberra last provide legal protection for most “Shouldn’t the assumption be that, week that such an idea had never public interest disclosures outside the generally speaking, the public has a entered his head until it had been put to bureaucracy because maladministra- right to know everything? And then if him at that press conference. tion will be solved by an elaborate exceptions need to be made for The location of the now-demol- internal complaint-handling system. national security or police operations ished call box does not prove that But its recommendations — which reasons or whatever, let’s have that anyone from Albanese’s office called would make federal politicians debate. But don’t assume the default Chulov. The Australian does not authorised recipients of public interest position should be not to reveal suggest anyone from Albanese’s office disclosures — were finalised before anything to anyone. made the call. But now that it is known Labor failed to act on Kessing’s “Taxpayers fund government and that people nearby also knew about the information about airport security. the bureaucracy. They ultimately own leaked report, the weight given to this Dreyfus, who has a longstanding them. The bureaucrats don’t serve the circumstantial evidence must change. interest in open government, is aware government, they serve the people and Even if Kessing was responsible there are lessons from the Kessing we seem to forget this. for both leaks, the Transport Workers affair. “I believe whistleblower and shield Union — which represents thousands “Allan Kessing’s case has wider laws are unconstitutional because they of airport workers — believes he significance,” Dreyfus tells The seek to limit the information a should not be prosecuted again. TWU Australian. parliamentarian can receive. They national secretary Tony Sheldon says “In particular it shows the need to stand in the way of parliamentarians what Kessing did means he was strengthen the role of integrity doing their job. How can I as an “prepared to put the protection of our agencies, which will have systems to elected representative of the people community first and foremost beyond deal with public interest disclosures address a problem I am not aware of?” a potential risk to himself.” […] rather than solely relying on the media Xenophon asks. So will Kessing be prosecuted? or members of parliament, which do Commonwealth director of public not have those systems,” he says. Chris Merritt is The Australian’s legal prosecutions Chris Craigie declined to On section 70, Dreyfus says the affairs editor. discuss the Kessing case. time has come to find a method of “Obviously we never talk about dealing with the flow of information IN a report in The Australian yesterday, it operational matters or even potential about public administration that takes was suggested that former Customs officer operational matters; and I won’t even account of the reality of the informa- Allan Kessing, who has admitted leaking a tell you which one of those categories tion age. report on airport security flaws to the Labor this fits into,” Craigie says. “The appropriateness of provisions Party, was involved in a separate leak to the Labor Party that was brought to his But he points to the extensive like section 70 needs to be re- attention last week by another whistle- public interest provisions that must be examined in the context of an age of blower. Mr Kessing played no part in the considered by the DPP when selecting instant communications and many separate leak. The error occurred during the those cases that justify the expenditure different means of communications,” production process. of taxpayers’ money on a prosecution. he says.

The Whistle, #60, October 2009 11 Articles

Bureaucracy’s criminal were sold in bulk to Sims Metals. The retained the site on its register of battery acid and wastewater from staff contaminated sites, thereby reducing solutions: the Albert amenities (the area was not sewered) its value by an undisclosed sum when Lombardo story was stored in the company’s specially the Road Construction Authority Keith Potter constructed 10,000 litre underground belatedly agreed to purchase it for the concrete tank. The contents were indefinitely deferred major road works. Albert Lombardo’s company was periodically pumped out and disposed No compensation was paid for the located in the wrong place at the of by an EPA approved contractor. business because it was no longer wrong time. Profits were mainly directed to functioning. The company’s use of heavy development of a novel and potentially Despite strong representations by machinery and tall cranes to retrieve highly profitable battery-case shred- parliamentarians including the Shadow large blocks of lead from ongoing ding machine. Attorney-General, cover-up continues illegally dumped factory slag wastes at The EPA alleged that the company to be tightly maintained by the a nearby domestic tip was attracting was dumping its battery acid in the government, authorities and regulators. unwanted attention. Victoria’s Envi- adjoining public drain and stopped all ronment Protection Authority [EPA] remaining operations via prohibition was turning a blind eye to this serious notices. offence, estimated to save the offend- Approximately six months later the ers approximately $10,000 per EPA took recourse to the Supreme working day. Albert realised the highly Court alleging urgency to stop the toxic nature of the dumped material company from polluting highway and reported this to the police and the roadsides, waterways, and Port Phillip EPA. Bay with acid and heavy metals. The Bulla Shire Council needed to Albert said the EPA’s sworn evidence acquire the company’s site at minimal was false and misleading. cost in order to complete a land The court gave the company the exchange for which anticipated funds option of cleaning up the alleged became unavailable. The Shire planned polluted drains or agreeing to perma- to upgrade the mostly vacant 40-acre nently cease all on-site recycling Keith Potter subdivision in which the Lombardo operations. Albert intended to restrict company premises were located, from operations to the purchase and shred- ding of empty battery cases. By that Keith Potter is a life member of “reserved for general industry” to a Whistleblowers Australia. stage neither the company nor Albert high quality pleasant amenity indus- trial park. could raise the $50,000 to $100,000 The authorities forced permanent estimated just to commence formal closure of the company’s on-site challenge. Of financial necessity he Whistleblower protection operations, thereby obliging the cash opted to clean up the drains that he in New South Wales: strapped Albert to beg Vic Roads to knew with certainty had not been voluntarily acquire the site at greatly polluted by any of the company’s moving backwards reduced value for indefinitely deferred operations. Peter Bowden planned road works, and no compen- The EPA noted that Albert “had not sation for the family’s profitable learned his lesson” and laid 24 The NSW government in March this business. criminal charges against him and the year issued a discussion paper that The EPA prohibited the company company. His wife, co-owner, died on resulted from a parliamentary inquiry from using its lead-melting furnace, the spot upon learning of the charges. into its whistleblower protection act. alleging that it emitted “excessive Albert said he would defend the Whistleblowers Australia NSW has smoke.” No smoke emission tests were charges himself in the Magistrates informed the NSW government that it conducted. The only smoke emissions Court with the aid of an interpreter. is extremely concerned with this were comparable to two diesel trucks. The EPA did not pursue the charges, discussion paper. It is issuing this These were confined to the 20-minute thereby evading the only opportunity statement in the hope that it can stop “warm up” period of an operation that for an affordable judicial hearing on what would be one of the more was conducted at approximately the merits. unethical acts that the government of fortnightly intervals. The EPA then ordered removal of NSW has yet perpetrated. Meanwhile, the company had all allegedly contaminated soil from The parliamentary inquiry by the started to experiment with recycling of the company’s site. This cost the Committee of the Independent automotive batteries. Lead plates were company $40,000. EPA staff later Commission against Corruption sold overseas; the empty battery cases stated that they witnessed removal of 190 tons of soil. The EPA nevertheless

12 The Whistle, #60, October 2009 (ICAC) is a sad indictment of the the value that an employee threatened BOOK COMMENTARY standards of government in NSW. with retribution for revealing The recommendations in the discus- dishonesty could point out that those sion paper would, if adopted, place making the threats were committing a Surviving as an outsider people who want to reveal wrongdoing criminal offence. Whistleblowers Brian Martin in the public sector in NSW at even Australia has several examples of greater risk. It is hoped that political using the act positively in this way. A book titled Fitting in is overrated is common sense at least will induce the The 2009 discussion paper took out surely ideal for whistleblowers. The committee to strengthen its recom- this clause from the original act. subtitle is even more promising: The mendations. Sacking a whistleblower who reveals a survival guide for anyone who has ever The original NSW Act — the wrong in government is now only a felt like an outsider. Some are outsid- Protected Disclosures Act 1994 — has disciplinary matter. ers before they blow the whistle, and never been successful. It has many Most whistleblower acts in Austra- nearly all become outsiders afterwards. flaws, making it a simple matter to lia protect people who blow the whistle The author, Leonard Felder, is a evade its provisions. There is no on damage to public health, safety and psychologist; his intended audience is recorded case of any successful the environment. The 2006 provisions just about anyone, including children convictions under the act. recommended that NSW fall in line who weren’t part of the in-crowd at An inquiry in 2006 had suggested a with the rest of the country. The 2009 school, individuals who are not fully number of reforms, but the NSW recommendations took them out. accepted by their relatives, and people government ignored them. The report NSW does not have a great reputa- with innovative ideas. Despite its wide sat on various premiers’ desks since tion for integrity in government. That ambit, Felder’s book has some useful 2006 before being superseded by a reputation seems destined to sink even tips that can be used by whistle- second inquiry. It was not the govern- further under the recommendations blowers. ment’s conscience, or a desire for being considered by the current Felder starts with an important honesty, that caused the second government point: most people want to fit in. If inquiry. It was to forestall the threat by someone snubs you, why worry? There the Legislative Council, where the are plenty of others in the world. But government does not have a majority, even a single snub can be hurtful. I to hold an inquiry into the rorts of have some friends who are popular which several NSW government with nearly everyone they know but ministers had been accused. who are terribly hurt when someone Different members of the parlia- appears to give them the brush-off. mentary committee had responsibility Wanting to be liked is very common. for undertaking the second inquiry. Felder counters with a simple yet The result has been to completely gut crucial message: it’s okay to be the positive recommendations of the different. 2006 inquiry. Sadly, the most recent So what do you do when someone is recommendations have even further rude? Felder has a simple approach: downgraded the original and largely say to yourself “I’m going to handle ineffective 1994 Act. Peter Bowden this with decency and integrity no Whistleblowers Australia has long matter what.” In other words, don’t argued that a protected disclosures unit Peter Bowden is president of the NSW stoop to the level of those who are was necessary to enforce compliance branch of Whistleblowers Australia. being insulting or standoffish. This is with the legislation. Such a unit has surely good advice for anyone raising been adopted by the Commonwealth. concerns at work. When co-workers The 2006 inquiry in NSW had also start reacting nastily or give you the endorsed such a unit. It would be cold shoulder, there’s a great tempta- responsible for protecting people who tion to react in kind, to reply to an want to bring public dishonesty into insult with one of your own, or to the open. The 2009 inquiry dismissed avoid those who are avoiding you. that proposal. They reverted to Felder gives several examples of retaining the coordinating body of individuals who escaped this down- different public servants who have wards spiral by reminding themselves long administered the original ineffec- of their commitment to decency and tive legislation. Without an organisa- integrity. tion charged with implementing As well as not worrying about being whistleblower protection, nothing will different, Felder recommends looking happen. at possible benefits. Benefit #1 is Under the original 1994 act it was a “After experiencing the pain of being criminal offence to intimidate or harass an outsider, you might come up with a whistleblower. This provision had creative solutions that the insiders

The Whistle, #60, October 2009 13 don’t see.” This is a common experi- stop and think about the consequences Fitting in is overrated is not aimed at ence of dissenters in all sorts of areas: of your own attitudes and actions. them specifically, but rather at a much rejection may be a blessing in disguise, Felder has similar exercises for the wider audience. forcing you to pursue an alternative other types of mistakes outsiders make. For whistleblowers, there is much path. Fitting in is overrated follows a wise advice in this book, especially for Benefit #2 is “An outsider perspec- formula: list key points, illustrate each dealing with your own emotions tive can be an important advantage in one with illuminating stories about through practical techniques. It may your business or career.” Many individuals, and finally offer exercises not be easy to survive as an outsider, whistleblowers would laugh at this — to help overcome the problem. Felder but if you’re going to persist then their outsider perspective is that of has chapters dealing with work, developing a few additional skills is being spat out by the system, some- cliques, families, being a mentor, and most sensible. times with a career entirely destroyed. turning your own circle into the one But if you can survive the whistle- people want to be in. blowing experience, you may be able For whistleblowers, the chapter on to forge a new career in an area in work is probably most relevant. Felder which your insight and integrity are lists four skills useful to outsiders at positives. the workplace. Skill #1 is “see each Benefit #3 is “Having a reputation unpleasant interaction not as a personal as an outsider gives you the freedom to failing, but as a workout for getting speak your truth and do what matters, wiser.” If you’re suffering reprisals, whether it makes a lot of money or this skill would certainly be valuable. not.” I think this is highly relevant to But how hard it is to develop! Some those who somehow survive in the bullies develop the opposite skill, system despite rocking the boat, learning how to humiliate and perhaps because reprisals in early demoralise their targets, in some cases stages of their careers were not making the target feel responsible. debilitating. If you establish a reputa- Felder’s approach is worthwhile in tion as an insider who is willing to encouraging you to step back from the question orthodoxy, then sometimes — nastiness and hurt of an encounter, Leonard Felder if you’re careful and don’t push too instead adopting a learning perspec- Leonard Felder, Fitting in is hard in the wrong places — you may tive. Rather than suffering in the overrated: the survival guide for be tolerated or even given some moment, psychologically you try to anyone who has ever felt like an respect. Sure, you may not be become removed, examining events outsider (New York: Sterling, promoted as rapidly as those who toe for clues on responding more effec- 2009). the line, but your ability to speak out tively. It’s very hard to do but the skill and take action is a big compensation. can be developed. Brian Martin is editor of The Whistle. Another chapter is about the biggest Felder gives examples in which mistakes outsiders make. The first is workers have turned around the having a chip on your shoulder. One attitude of bosses and co-workers. He example: “Maybe it’s someone in your advises breathing smoothly, being social circle who can’t let go of a strong using an approach he calls frustrating incident that happened long “quick refocusing,” and not being ago, because it still clouds his vision intimidated. These techniques can be and causes him to launch into tirades supplemented by skill #2, “know your about bad drivers, slow clerks …” comeback lines.” Whistleblowers have much more Finally, with skill #3, we come to reason to have chips on their shoulders the challenge for whistleblowers: than someone annoyed by bad drivers, “know what to do if you are faced with but the same principle applies — you something unethical, illegal, or need to rise above rages and internal dangerous.” Felder’s recommendations turmoil triggered by those around you, are designed for survival. They involve even though they may be corrupt and carefully planning to move to a new uncaring. To counter the urge to job in an ethical environment, at the behave badly, Felder suggests first same time documenting the dubious imagining what you would do if you activities at your current job. He also were permitted to do anything (throw has suggestions about financial your worst tantrum!) and then planning. Felder’s recommendations, imagining what you would do if you though brief, are entirely compatible were strong, calm and centred. It with the usual advice given to whistle- sounds too easy and doesn’t always blowers. There is little new for work, but the key idea is worthwhile: whistleblowers on this point, but

14 The Whistle, #60, October 2009

Whistleblowers Australia 2009 conference and AGM

The 2009 National Conference Payment options Draft programme and annual general meeting of WBA will be held on the 1. Cash paid on the day. Be Saturday 5 December weekend of December 5 and 6 sure to tell Shelley you’re 8.45am, Registration at Aquinas College, University coming. 9.15, Welcome, Peter Bennett, of Adelaide. WBA President Aquinas College is located at 1 2. Cheque or money order paid 9.30, Janet Giles, SA Unions Palmer Place, on the corner of to Whistleblowers Australia and 10.15, Questions and Palmer Place and Montefiore posted to Feliks Perera, discussion Hill North, Adelaide (see map Treasurer, Unit 1, 5 Wayne 10.45, Morning tea on website), a 15–20 minute Avenue, Marcoola Qld 4564. 11.15, Hon David Winderlich – walk from the CBD, or a 5 South Australian minute bus ride from the CBD. It 3. PayPal Whistleblowing legislation is within 25 minutes from 12.00, Questions and Adelaide Airport. The 4. Direct deposit discussion conference venue can be 12.30, Lunch viewed at For information about options 3 1.30, Panel including Janet http://www.adelaide.edu.au/Aqu and 4, contact Feliks Perera Giles, David Winderlich and inas/ml-contact.html where ([email protected] or two others there is also a link to a map phone 07 5448 8218) or Shelley 2.30, A whistleblower’s showing the location of Aquinas (details bottom left on this experience of blowing the College. page). whistle 3.00, Afternoon tea Accommodation at Aquinas 3.30, Workshops College 4.30, Report back from Bed & breakfast: $50 per night workshops 5.00, Close Conference costs 6.30, Conference dinner, Saturday (conference), $45 Aquinas College Sunday (AGM, workshops), $35 8.30, WBA party/social event, Both days, $80 Conference dinner, $30 Sunday 6 December Aquinas College 9.00am, Annual General The conference dinner will be a Meeting three-course meal with a 10.30, Morning tea vegetarian option. Lunch as well 11.00, Discussion: specific as morning and afternoon tea Public transport in Adelaide goals and how WBA is going will be provided to attendees at See to achieve them; resolution of the Saturday conference and http://www.adelaidemetro.com.au/ issues the Sunday AGM. 12.30, Lunch 1.30, Workshops Members should advise Shelley 4.00, Finish Pezy, conference co-convenor, no later than Friday November 20 of their accommodation requirements, at Phone: 08 8303 5563 Email: [email protected] Postal address: Molecular & Biomedical Science, University of Adelaide, Adelaide SA 5005

The Whistle, #60, October 2009 15 Whistleblowers Australia contacts WBA 2009 conference and AGM

Postal address: PO Box U129, Wollongong NSW 2500 See information on page 15. New South Wales “Caring & sharing” meetings We listen to your story, Politicians from both sides hate whistleblowers provide feedback and possibly guidance for your next few steps. Held 7.00pm on the 2nd and 4th Tuesday nights of The disclosure that the Labor Party turned away whistleblower each month, Presbyterian Church (Crypt), 7-A Campbell Allan Kessing and refused to act on his information about Street, Balmain 2041. security flaws at Sydney airport is not surprising. When Kessing provided then opposition MP and now federal Contact: Cynthia Kardell, phone 02 9484 6895, fax 02 - Transport Minister Anthony Albanese with access to a secret 9481 4431, [email protected] report, he created some difficulty. To encourage whistleblow- Website: http://www.whistleblowers.org.au/ ers in opposition creates a problem when the transition is Goulburn region: Rob Cumming, phone 0428 483 155. made to government. The sad fact is that politicians of all Wollongong: Brian Martin, phone 02 4221 3763. persuasions hate whistleblowers because they all have Website: http://www.bmartin.cc/dissent/ skeletons in their cupboards. In opposition, they pay lip service

Queensland Feliks Perera, phone 07 5448 8218, to disclosure, but in power they do their best to suppress it. [email protected]; Greg McMahon, phone 07 3378 The Kessing case is a classic example. 7232 (a/h) When Labor was in opposition and the Liberals were cop- ping flak over Sydney airport’s customs debacle, Labor South Australia John Pezy, phone 08 8337 8912 politicians displayed some overt sympathy for Kessing’s case.

Tasmania Whistleblowers Tasmania contact: Isla However, as we can now see they failed to act even when given the information prior to its public disclosure. Further- MacGregor, phone 03 6239 1054 more, they have done absolutely nothing effective in relation to Victoria Stan van de Wiel, phone 0414 354 448 his case since they got into power. It should be noted that in Kessing’s case, the Howard Whistle government didn’t have the guts to go after the journalist Editor: Brian Martin, [email protected] concerned in the disclosure (which led to $200 million of Phones 02 4221 3763, 02 4228 7860 reforms at Sydney airport), but prosecuted Kessing, who was Address: PO Box U129, Wollongong NSW 2500 presumably a softer touch. This is straight out of the Mao Associate editor: Don Eldridge Zedung management philosophy of “execute one, educate a Thanks to Cynthia Kardell and Patricia Young for thousand.” proofreading The current whistleblower legislation, state and federal, is ineffective and provides little practical protection to public servants or journalists. A government serious about good governance would facilitate whistleblowing and give some statutory protection to both the whistleblower and the channels through which information is publicised. However, no such reform is ever likely from a government intent on protecting its own backside from whistleblowers. • Greg Angelo, letter, The Australian, 8 September 2009, p. 13

Whistleblowers Australia membership

Membership of WBA involves an annual fee of $25, payable to Whistleblowers Australia, renewable each June. 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.

Send memberships and subscriptions to Feliks Perera, National Treasurer, 1/5 Wayne Ave, Marcoola Qld 4564. Phone 07 5448 8218, [email protected]

16 The Whistle, #60, October 2009