The Whistleno. 60, October 2009

“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 prosecution 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.

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