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

Whistle NO. 47, JULY 2006 Newsletter of Whistleblowers Australia PO Box U129, Wollongong NSW 2500

Fred Gulson, tobacco industry whistleblower (see p. 3) Media watch

AWB whistleblower If AWB continues to play hardball are suspicious, with penalty for failing with Mr Hogan, the taxpayer may end to comply.” left high and dry up footing at least part of his bill. However, Dr Paul Nisselle, senior on the fees front Mr Hogan is unemployed, having adviser in risk management for the Caroline Overington been unable to work since he collapsed Medical Defence Association of The Australian, 10 April 2006, pp. 1-2 with a stress-related disorder shortly Victoria, stressed that the law was before the war in Iraq broke out in more about the protection, rather than Dominic Hogan suffered a nervous 2003. He survives on a weekly the prosecution, of potential whistle- breakdown while working for AWB. workers compensation payment, and blowers. He says it was caused by the stress of must attend regular medical appoint- “How would any lawyer prove that knowing money was being funnelled ments to deal with depression. a doctor had a suspicion about possible to Saddam Hussein’s regime. AWB spokesman Peter McBride abuse but failed to report it? In the vast Exhausted and torn apart by guilt, said: “We have agreements with all majority of cases that would be he quit the monopoly wheat exporter former employees to cover reasonable impossible. shortly before war broke out in 2003. costs.” He said Mr Hogan had decided “If it is introduced it is going to Earlier this year, he agreed to blow not to sign the original agreement “and offer statutory protection to those the whistle on AWB. It is largely so my understanding, as of last Friday doctors who report potential incidents because of his evidence that commis- is, we are still negotiating.” of abuse in good faith from being sued sioner Terence Cole QC has been able for defamation. This is going to to uncover the truth about Australia’s empower GPs. wheat deals with Iraq. Now AWB — “I think the way the referral system which is covering the legal costs of Whistleblowers is set up there is an expectation from most, if not all, other former employ- will be protected the aged care homes that the GP is somehow beholden to them. This will ees — appears to have decided that his Paul Smith allow doctors, where they have bills can take care of themselves. Gary Australian Doctor, concerns about a resident, to demand Taylor, of Melbourne-based solicitors 10 March 2006, p. 16 Clark and Toop, said Mr Hogan had action from an aged care facility or else threaten a formal complaint.” been unable to get AWB to agree to GPs who alert authorities to suspected “any reasonable offer to cover the abuse of elderly patients will be fees.” “He appears to have been left offered legal protection should out,” Mr Taylor said. “AWB is paying campaigners win the battle for Words of mass deception the legal fees of its other employees, mandatory reporting of abuse in aged Rod Barton blew the whistle on and its other former employees. care facilities. Australian, US and British lies about “Our question is, why not our Next week a national summit, Iraq’s hidden weapons cache. And the client?” convened by the Federal Government, Australian Government has made sure In a controversial move, AWB will meet to discuss elderly abuse and he pays a high price for his stand. originally offered to pay legal fees up the possibility of introducing a Hamish McDonald reports to $50,000 for all former employees, mandatory reporting system. provided there was no “adverse find- The Elder Abuse Prevention Sydney Morning Herald, ings against them.” Association, which supports the push, 13 May 2006, p. 35 Mr Hogan refused this deal, estimated there were about 80,000 claiming it was designed to stop him cases of elderly abuse taking place in For a decade Rod Barton knew the turning whistleblower. He wanted to nursing homes every year — the vast special loneliness of a United Nations tell the truth, which involved admitting majority still going unreported. weapons inspector in Iraq, teasing out that he was aware that UN sanctions The group’s executive director, Ms clues from one of the world’s nastiest were being busted, and millions were Lillian Jeter, claimed that mandatory regimes about biological weapons of flowing to Saddam in exchange for a reporting requirements would mean unspeakable effect. lucrative wheat trade. GPs working in aged care facilities He worried about assassination by Clark and Toop have since put could be prosecuted if they failed to Saddam Hussein’s secret services, not forward a copy of their bill, and say it report suspicions of abuse. an unrealistic fear. He felt the derision is nowhere near the amount other “For those working with older of the ascendant hawks in Washington, lawyers are charging, although it is persons, if they saw suspicious confident they knew better than the believed to be in six figures. circumstances, under the law they UN inspectors about Saddam’s secret “We’ve put forward what we would be required to report it,” she weapons. consider to be a reasonable offer, but said. “There needs to be a statutory Now Barton is suffering a new kind we just haven’t had a response,” Mr requirement to report situations that of isolation after turning whistleblower Taylor said. on how the American, British and

PAGE 2 THE WHISTLE, #47, JULY 2006 Australian leaders distorted intelli- George Bush, Britain’s Tony Blair and Government something that’s gence to justify their invasion of Iraq Australia’s John Howard was false. unpopular,” he says. and how they condone the torture of Blair and Howard knew it was One bit of unwelcome reporting by Iraqi prisoners. false, Barton says. Bush may not have Barton, to Australia’s Defence De- Back home in Canberra, Barton is known, because his intelligence partment, was the first indication of the ostracised and unemployed in his old agencies were reporting what he special “purgatory” centre being run intelligence profession, to which at 58 wanted to hear. by US Special Forces at Camp Nama, and still formidably incisive, he could When shown the Australian intelli- next to Baghdad Airport. still contribute a lot. He looks at the gence assessment, Howard even asked: “High value” prisoners selected for view of the Brindabellas. He roams the “Is that all there is?” disorientation before interrogation world’s trouble spots on Google Earth, Barton saw both the British and have a hessian bag put over their heads the satellite imagery website. The Australian intelligence assessments for up to 72 hours, and are deprived of house could not be any tidier, nor the about Saddam’s weapons of mass food, water and sleep, made to stand garden crammed with any more destruction before the March 2003 up for long periods, exposed to intense shrubs. invasion. Saddam had at most a few heat or cold, and bashed at random Barton made waves and is being chemical and biological weapons left intervals. Unlike the improvised punished. In March 2004, he and over from the 1980s, and no means of brutality by US soldiers exposed at the another Australian, the Foreign Affairs delivering them. There was no Abu Ghraib prison, all this is sanc- disarmament specialist John Gee, evidence he had resumed WMD tioned by the US Administration, resigned in protest from the Iraq programs after UN weapons inspectors which claims it does not amount to Survey Group, set up by the US were kicked out in 1998. torture. “That’s what makes it so much Central Intelligence Agency to find the It was no grounds for war, so the worse,” Barton says. Iraqi nuclear, chemical and biological intelligence was doctored — notably in “We went to war on WMD, which weapons that had been the excuse for the British “dossier” published on the is withdrawn now. And now the casus invasion. The CIA was refusing to face orders of the British Joint Intelligence belli is to bring democracy and human the truth that Saddam’s weapons had Committee chairman, John Scarlett, rights — yet we, the coalition, are been destroyed in 1991. which claimed Saddam had chemical detaining people without trial, and we In February last year, Barton went and biological weapons deployable the coalition are using torture tech- public on ABC television. Now he has “within 45 minutes of an order to use niques,” Barton says. “As a member of written a devastating book about it, them.” the coalition we have a responsibility. The Weapons Detective (Black Inc. Howard cited the British dossier in We, the Australians, should be telling Agenda, $29.95). His security clear- assuring the Australian public and our American colleagues: This is just ances withdrawn, Barton knows he Parliament his Government had not acceptable; if you want us as a will not be getting any more contracts “compelling evidence” that Saddam member of the coalition, to continue from his old employer, the Defence possessed these weapons. “Is it a lie or our presence there, then we ask you to Intelligence Organisation, which he is it a spin or what?” Barton said. “But stop this practice. had joined as a young microbiologist it’s certainly misleading the people.” “But of course this Government in 1972. The liars and spin doctors have doesn’t want to upset the Americans, Old colleagues at the intelligence prospered, the whistleblowers have so we won’t do that.” organisation have been warned not to been shafted. Barton’s former UN have contact with him, not even social colleague and friend, the British meetings. In one act of spectacular defence scientist David Kelly, killed pettiness, at the insistence of the Prime himself in July 2003 after being outed Smoking gun in the Minister’s staff, Barton and Gee were for telling a BBC journalist how Big Tobacco case dropped from the guest list for last Scarlett had “sexed up” the Iraq Marcus Priest year’s 20th anniversary meeting in intelligence. Scarlett was still “sexing Australian Financial Review, Sydney of the Australia Group, a up” the post-invasion intelligence, 22 April 2006 forum of intelligence specialists from Barton shows, but has been made chief 38 countries on chemical and biologi- of Britain’s famous spy service, MI6. Many have heard of Jeffrey Wigand, cal weapons, which the two had helped Barton shakes his head: “John Scarlett who was immortalised in the film The set up in 1985. should not head any intelligence Insider. Yet the role of Australia’s own “I knew that blowing the whistle organisation.” In the CIA, the medals, whistleblower, Fred Gulson, was just would bring some penalties, but not to cash bonuses and promotions go to as important in revealing the giant this extent,” Barton says. “Was I that agents who tell their chiefs about new deceptions of international tobacco much a threat to the security of weapons threats, not the ones who companies. Australia when — what was it I spoke caution the evidence is weak. In a Washington DC courtroom in out about: prisoner abuse?” In Australia, Barton sees a general February last year, former HO Wills In his new book, Barton lays out in culture of compliance in the public lawyer Fred Gulson came face to face shocking clarity that the reason for the service spreading to the intelligence with the attack dogs of Big Tobacco. Iraq invasion cited by America’s agencies. “You know you’re not going With 17 highly paid American lawyers to get promoted if you tell the lined up beside him, British American

THE WHISTLE, #47, JULY 2006 PAGE 3 Tobacco’s lawyer, David Wallace, from wine to the genetic make-up of Others from BAT have not aggressively tried to discredit Gulson, deer. … supported Gulson’s claims of sinister who claimed to have been a key player But he’s deadly serious about his purpose. But Gulson’s immediate helping his former employer imple- 13 months at BAT Australian subsidi- superior, Nick Cannar, was more ment a document destruction policy. ary HO Wills. equivocal and in his evidence pleaded Wallace moved ever closer to Gulson Gulson was employed by BAT in privilege against self-incrimination. in the witness box. 1989 as general counsel and company BAT refuses to comment on At one point during the day-long secretary. He says his chief responsi- Gulson’s claims until Kessler rules this grilling, presiding judge Gladys bility was to prepare the company for year in the anti-racketeering case Kessler was asked to restrain the an expected wave of tobacco litigation. against global tobacco companies. If lawyer. This included implementing the she finds against them, the evidence “Objection, your honour, just to the company’s “document retention” given by Gulson could prove just as point that Mr Wallace is continually policy — created in 1985 and subse- important in the global fight against getting up to Mr Gulson’s face,” US quently advised on by Australian law Big Tobacco as that of Wigand. Department of Justice counsel Brett firm Clayton Utz. “Wigand gave evidence as to the Spiegel said. One reason Gulson’s evidence was scientific nature of nicotine and its Kessler pulled BAT’s lawyer into so important was that he used none of addictive qualities and the knowledge line: “That’s correct. Mr Wallace, all the normal qualification or prevarica- inside tobacco companies, and Fred the questions from the podium.” tion that is the stock in trade of the gave evidence as to the practical The cross-examination was the legal profession. Gulson’s evidence effects and real purpose of their culmination of an extraordinary three- about the real, unwritten reason for Big document retention policies,” says year ordeal for Gulson, in which Tobacco’s worldwide document Melbourne barrister Jack Rush, QC, Wallace engaged private investigator retention policy pulled no punches: who appeared for Gulson during the Control Risks Group to seek to documents were destroyed, ware- Washington hearing. discredit him — and therefore the housed and routed through lawyers to “US Department of Justice lawyers evidence he would give in the keep them out of the hands of plaintiff saw Gulson as right up there with landmark anti-racketeering case lawyers. Wigand.” against the tobacco industry. They Gulson says he became so But unlike Wigand, Gulson says he ended up with details of a dirty battle concerned about the policy that he had anticipated everything BAT threw at between Gulson and a former business it reviewed by a series of senior him . partner in the early 1990s for control lawyers. “I am a lawyer, I am used to that of a company. “It was a wolf in sheep’s clothing,” shit,” Gulson said. Then Gulson received mysterious he told Kessler. “In a sense, Wigand is a braver phone calls and text messages, and And in a written answer to the US person because it took a lot more guts “real-estate agents” appeared unan- court he said: “The document retention to do what he did. He did not know nounced without business cards at his policy was a contrivance designed to what was coming next, whereas Sydney home. eliminate potentially damaging nothing that happened to me was a “No real-estate agent walks into a documents while claiming an innocent surprise. It does not mean it was not property without business cards,” ‘housekeeping’ intent. disturbing but I would have been Gulson told the Weekend AFR. “And “The policy didn’t pass the smell surprised if it did not happen. Those when they were challenged they just test. The whole policy was to keep people are the masters of the dirty ran off.” evidence out of the courts.” trick.” At one point when he was testify- Gulson’s evidence was supported Gulson’s starring role against Big ing, the US government provided in the same proceedings by tobacco Tobacco began in Australia back in Gulson’s family with 24-hour protec- heavyweight David Schechter, general 2002 after a finding that BAT had tion by security guards. counsel of BAT US subsidiary Brown destroyed documents prompted him to It was reminiscent of the experi- & Williamson. come forward. Victorian Supreme ences of another tobacco whistle- “One of the benefits of limiting Court judge Geoffrey Eames struck out blower, Jeffrey Wigand. Last year such retention [of documents] was that a defence by BAT against a claim by Wigand flew to Australia to pay tribute documents would not fall into the dying Melbourne woman Rolah to Gulson at a Sydney health confer- hands of plaintiffs or the public or the McCabe. Eames awarded McCabe ence organised by anti-smoking newspapers,” he said. $700,000 on the grounds the destruc- campaigners. “The reason why I wanted to know tion of potentially relevant documents But while Wigand’s saga has been whether it was legal in Australia to by BAT rendered it impossible for the immortalised by Russell Crowe in the destroy documents when there was no plaintiff to have a fair trial. movie The Insider, Gulson has litigation was so that we could do that Eames quoted liberally from letters received a fraction of public attention. and it would be legal, and the result between Gulson and BAT’s lawyers. Yet Gulson seems ready made for would be to prevent the documents Gulson did not give evidence in the celluloid. Those close to him describe being used against the company in case, but following Eames’s decision a larger-than-life personality, overcon- litigation.” he was contacted by Freehills, the law fident and with opinions on any topic, firm acting for Clayton Utz partner

PAGE 4 THE WHISTLE, #47, JULY 2006 Brian Wilson who, according to to trigger a response from him those “We will have to be reconciled to a Eames, advised BAT and Gulson on things were best left in the closet.” bureaucracy of yes people.” the document retention strategy. But when Gulson first gave The high court’s 5-4 ruling in Freehills wanted Gulson’s assistance in evidence in the US — where he was Garcetti et al. v. Ceballos May 30 an appeal against Eames’s decision. given immunity from prosecution in marks the first decision the court has The Court of Appeal overturned the case — his lawyers were concerned issued in a case it reconsidered Eames’s ruling, including his criti- that he might crack under pressure. following the retirement of Justice cisms of Wilson. At a deposition to take his evidence Sandra Day O’Connor. Her replace- Gulson wrote back to Freehills in December 2004, before the Kessler ment, Justice Samuel Alito, sided with saying he was not willing to help hearing, he stormed out of the exami- conservatives in reversing the long- because his recollection of events nation by lawyers after they refused to held precedent that public employees corresponded with Eames’s conclu- allow him to read an affidavit he was enjoyed constitutional protections sion. being questioned about. when speaking out as part of their job. On learning of the Victorian Court Rush says: “We were extremely “We reject, however, the notion of Appeal decision and seeing a disappointed in him and we thought he that the First Amendment shields from correction published in this paper in was extremely nervous. I think the discipline the expressions employees relation to the matter, Gulson became Yank lawyers thought they would make pursuant to their professional so incensed that he contacted mince him in front of the judge. But duties. Our precedents do not support McCabe’s lawyer, Peter Gordon. when he did appear in front of her he the existence of a constitutional cause Gulson says: “I knew we were was much more in charge. The Yank of action behind every statement a stretching the four corners of the lawyers didn’t lay a glove on him.” public employee makes in the course envelope and I formed the view that Gulson insists that his performance of doing his or her job,” Justice BAT’s policy at the time was a legal at deposition was all a strategy to Anthony Kennedy wrote for the contrivance. But I was comfortable throw off the US lawyers: “I decided majority. Relevant documents are that, providing I had the best legal to assume a persona that was more available on InsideEPA.com. brains in the country doing it, followed extreme than my normal persona.” The decision sparked outrage from by the best legal brains in England, And it’s not over yet. There are public employee advocates, including that it was fine. dramatic new legal claims in the wings the National Treasury Employees “Reading Justice Eames’s judge- in Australia and Gulson’s evidence Union (NTEU), which represents ment I realised that despite everything will play a critical part. many EPA employees. I had put in place to prevent, it was NTEU had filed an amicus brief in still illegal.” the case, urging the justices to protect Gordon was initially suspicious employee speech. “Again and again, about the call from Gulson, but after a Environment laws may public employees, armed with their series of meetings he was convinced he not blunt high court specialized expertise and data or other was the real deal. whistleblower ruling insights resulting from their work, “I thought I was being set up. It have served the public interest by Defense Environment Alert seemed extraordinary to me and I exposing wrongdoing or waste of Vol. 14, No. 12, 13 June 2006 made sure I had a colleague in the government funds and by presenting room when I returned his call because unpopular but objectively sound The recent Supreme Court opinion I thought he might have been a plant,” conclusions and opinions. … This rejecting First Amendment claims for Gordon says. speech is entitled to constitutional public employees who act as whistle- “I had seen his name in documents. protection.” blowers combined with ongoing Bush I was amazed that someone who was NTEU argued against the “artificial administration efforts to eliminate so trenchantly on the other side would distinction” made between “citizen special whistleblower protections seek to make contact.” speech” and “employee speech,” but contained in environmental statutes Since leaving Wills, Gulson has the high court endorsed such a distinc- may discourage EPA staff from moved from the law into business and tion. discussing misconduct with supervi- become one of the largest essential-oils The court found, “Two inquiries sors, observers say. They note that suppliers in Australia. He was reluctant guide interpretation of the constitu- although many environmental statutes to become involved again, but state- tional protections accorded public are designed to shield EPA employees ments by BAT that it would be seeking employee speech. The first requires from retaliation, those protections may a costs order against McCabe’s family determining whether the employee be inadequate in light of the ongoing finally changed his mind. spoke as a citizen on a matter of public assaults. “He was fuming,” says Cordato, concern. … If the answer is no, the One source points out that statutes who gave him legal representation employee has no First Amendment such as the Clean Air Act and Clean when he went public. cause of action based on the Water Act provide, for now, broader “He was not happy when he was employer’s reaction to the speech.” employee rights to free speech when working at BAT as they were asking In a statement, NTEU said the revealing wrongdoing to supervisors, him to do things he was not happy decision would have a “chilling effect but warns that unless the trend of doing … but until something happened on the ability of public employees at eroding such protections is reversed,

THE WHISTLE, #47, JULY 2006 PAGE 5 all levels of government to speak out seeking to respond to earlier court Update: The Government Accountabil- on matters of public interest.” NTEU rulings that have limited employees’ ity Project reports: “The Senate acted President Colleen Kelly added, “When speech. quickly to plug a government account- the voices of dissenting scientists, A source with the Government ability loophole created less than one month [earlier], when the Supreme doctors, lawyers, financial or law Accountability Project, which advo- Court’s Garcetti v. Ceballos decision enforcement professionals serving the cates free speech rights for public canceled constitutional free speech public are silenced, the American employees, says that despite bipartisan rights for government workers carrying people will ultimately suffer.” passage of the bills by the relevant out their job duties. Senate bill S. 494, While employee advocates and committees in the House and Senate which includes that reform amidst a legal experts acknowledge the opinion the past two years, congressional general overhaul of the Whistleblower does not directly affect many EPA leadership has not allowed the legisla- Protection Act, was agreed to by employees, it does remove employees’ tion to come to a floor vote due to DOJ unanimous consent as an amendment ability to cite the First Amendment as opposition. to the 2007 National Defense Authori- zation Act, passed 96-0.” a whistleblower defense should they A source with Public Employees claim they were retaliated against. for Environmental Responsibility One legal expert says, “The deci- (PEER) adds that the environmental sion takes away the First Amendment statute protections are already limited Tories challenge defense in any claim, regardless of in terms of the employees they protect. other [protective] statutes.” Employees For example, PEER is arguing in a information chief’s would be “stuck” with using other case pending before the U.S. Court of powers statutory remedies, which are also Appeals for the 9th Circuit that the He can protect civil-servant under attack by the Bush administra- public employees of the Fish Passage whistleblowers from reprisal tion and the courts, the source notes. Center — which conducts research on by the government A source with the National salmon recovery — have First Carly Weeks Whistleblower Center says the admini- Amendment protections to discuss the Vancouver Sun, 14 June 2006, p. A7 stration’s actions combined with the results of their findings. high court’s ruling illustrate a larger A district court ruled in the case, OTTAWA — The Conservative trend restricting public employees’ National Wildlife Federation et al. v. government has launched a new fight rights to blow the whistle. National Marine Fisheries Services et with Canada’s information commis- For example, the Administrative al., that the Bush administration had to sioner by challenging his power to Review Board (ARB) at the Depart- increase water flows from hydroelec- protect civil servants who testify ment of Labor is considering a case, tric dams to protect the salmon, in part during investigations from reprisal by Erickson v. EPA, in which the Bush based on the scientists’ findings. That the government. administration is seeking to remove the prompted protests from Senator Larry The issue, which will be heard at special whistleblower protections Craig (Republication from Idaho), who Federal Court, could significantly under the environmental statutes. EPA last year successfully included undermine the authority of Information filed a brief last fall arguing that language in an appropriations bill Commissioner John Reid, according to sovereign immunity prohibits federal cutting funding for the Fish Passage the commission’s annual report, which employees from suing the government Center. The 9th Circuit intervened and was tabled in Parliament on Tuesday. under environmental statutes. That continued the funding while the case is The government is “challenging brief follows an earlier ARB ruling pending. powers that the information commis- finding that the environmental statutes’ The PEER source notes, “We have sioner has exercised for many years whistleblower protections do not pending First Amendment litigation and, which even the litigious Chretien extend to state employees. before the circuit, but we are seriously administration did not challenge,” says The Department of Justice (DOJ) rethinking” our arguments in light of the report, which criticized govern- filed an amicus brief in the Garcetti Garcetti. ment officials for failing to trust the case urging the court to find against PEER and other sources note that Access to Information Act and the employee, Richard Ceballos, who the ruling will likely prompt a host of withholding information from the worked as a deputy district attorney in litigation over what constitutes official public. Los Angeles. While on duty, he wrote duty, and may also persuade public At issue is the fact that when civil a memo to his supervisors questioning employees to take their concerns servants are subpoenaed to appear the validity of a search warrant. directly to the media, rather than during an information commission Ceballos was then demoted and trans- seeking to warn supervisors. investigation, they are represented by ferred, though his employer denied A Public Citizen attorney who government lawyers. By law, wit- those acts were retaliatory. litigated the case says the decision nesses have the freedom to speak DOJ has also opposed legislation in “creates a perverse incentive for during investigations without their the House and Senate that would employees to go public first with their employer present, so the information clarify that employees covered by the information.” But the attorney adds commissioner can impose a confiden- Whistleblower Protection Act enjoy that the employee could still suffer tiality order that restricts government First Amendment protections for their retaliation for such action. lawyers and their clients from official duties. The legislative effort is

PAGE 6 THE WHISTLE, #47, JULY 2006 discussing the investigation with problem is that many departments the board, which then called for her anyone. don’t have the staff to adequately resignation. In March, the Justice Department handle access requests. Her complaints were ultimately asked for a judicial review that found to have some merit in an challenges the information commis- investigation by the provincial auditor sion’s power to keep proceedings general, who also slammed the confidential, a move that undermines Manitoba government province for how it handled her the commission and the freedom of its won’t protect situation. witnesses, Reid said. whistleblowers who go to Hawranik accused the government “If they win, it will alter the of wanting to keep legislature balance against the individual and media or politicians members out of the bill to prevent reduce their right to speak openly to The Canadian Press, 15 June 2006 details from leaking out about wrong- the information commissioner without doing at the Crocus Investment Fund. fear of reprisal,” Reid said in an Manitoba Finance Minister Greg The labour-sponsored fund was the interview. Selinger is refusing to extend whistle- subject of a damning report by the Reid said his office has been blower protection to civil servants who auditor general in May 2005 and is sparring with the department over this bring complaints forward to a legisla- also the subject of an RCMP investi- issue ever since the fight to have ture member or to the media. gation. public access to the prime minister’s The whistleblower bill that’s Selinger said people can still agenda began several years ago. currently before the legislature only complain to the media or to a politician “This is an ongoing battle we’ve protects government workers who if they want, but said extending been having with the department,” report workplace misconduct to the protection to people who do would Reid said. provincial ombudsman. have opened up the process to political Ironically, protection for whistle- Opposition critic Gerald Hawranik interference. blowers is being touted by the Conser- noted the woman whose firing ulti- vatives as one of the most important mately prompted the bill would not provisions of the party’s sweeping have been protected by the legislation accountability bill, which was drafted because she went to the labour minis- Tales from the back office in the wake of the Liberal sponsorship ter, not the ombudsman. — whistleblowers scandal. But Selinger said allowing whistle- The Economist, 25 March 2006 The Federal Accountability Act blowers to go to the media or to a would include protection and possibly legislature member would mean that It is becoming easier for employees to cash rewards for civil servants who anyone accused of wrongdoing would reveal their bosses’ wrongdoings blow the whistle on wrongdoing in the be tarred and feathered before anyone Sherron Watkins, a star witness in federal government and is designed to could show whether the accusations the current trial of Kenneth Lay and “foster an environment in which had merit. Jeffrey Skilling, respectively Enron’s employees may honestly and openly “By then it could be too late to former chairman and chief executive, raise concerns without fear or threat of repair the damage done to their reputa- is billed as a whistleblower. “Probably reprisal.” tion,” said Selinger. the closest thing to a hero to emerge A spokesman for the Justice Hawranik introduced an amend- from the Enron saga,” said the Wall Department declined to comment on ment Monday that would have Street Journal. Ms Watkins fits the the issue. protected workers who take their public’s image of what a whistle- Reid’s annual report also criticizes complaints elsewhere, but it was blower should be — female, feisty and the federal government for exerting defeated by the NDP majority. ultimately vindicated, a stereotype laid “very real pressures” to keep informa- Critics have also lashed out at the down by Oscar-nominated actresses tion from Canadians and urges signifi- bill because it does not require the such as Julia Roberts (in Erin cant reform to change the culture of provincial ombudsman to reveal any Brockovich) and Meryl Streep (in secrecy that exists within many wrongdoing he or she finds. Silkwood), and reinforced when Ms departments. The federal whistleblower bill Watkins was one of three female The government regularly circum- requires the ethics commissioner to whistleblowers named as Time vents the access legislation by ignoring issue a report within 60 days of finding magazine’s “Persons of the Year” in response deadlines to information any misdeeds. But the Manitoba bill 2002. requests, blacking out embarrassing says the ombudsman “may” issue In reality, the lives of most parts, doing business orally and detailed reports, but is not required to. whistleblowers are far from glamor- keeping institutions and records out of Former Workers’ Compensation ous. In Whistleblowers: Broken Lives the act, according to the report. While Board CEO Pat Jacobsen lost her job and Organisational Power, Fred some problems stem from deliberate following complaints she made to the Alford, a professor at the University of attempts to withhold potentially labour minister about the conduct of Maryland, writes, “the average whis- embarrassing information and delay the board’s directors in 2001. The tleblower of my experience is a 55- the release of information as a form of minister turned her complaints over to year-old nuclear engineer working “damage control,” Reid said part of the behind the counter at Radio Shack.

THE WHISTLE, #47, JULY 2006 PAGE 7 Divorced and in debt to his lawyers, he In general, American companies do one which should give all potential lives in a two-room rented apartment.” not have to give employees a reason whistleblowers pause. Ms Watkins, at first sight a rare for sacking them. Some whistleblow- Yet just occasionally a whistle- exception, is arguably not even a ers believe that the greatest single blower triumphs against the odds. whistleblower. She made no system- protection they could gain would be Jonathan Fishbein, a doctor who was atic attempt to reveal wrongdoing to for it to be mandatory for firms to say fired by America’s National Institutes internal or external authorities, the why they are getting rid of an of Health after reporting misconduct in defining action of a whistleblower. Her employee. Short of that, legislation is federal research into viramune, an qualms were instead laid out in an rolled out regularly with the aim of AIDS drug, was reinstated in Decem- internal memo that she wrote to her providing whistleblowers with more ber last year after concerted support boss, Mr Lay, expressing a fear that protection. America has had a from politicians, the media and fellow the company might “implode in a wave Whistleblower Protection Act in force scientists. Charles Grassley, chairman of accounting scandals.” The memo since 1989, and after the Enron and of the Senate Finance Committee and a was uncovered by an investigative WorldCom disasters the Sarbanes- supporter of whistleblowers, said it committee after the company had Oxley act added further protections to was an example where “we can chalk collapsed. corporate whistleblowers. In particular, one up for the good guys.” More Other Enron employees fit the it ruled that all companies quoted on broadly, technology may be helping whistleblower description rather better. an American stock exchange must set the whistleblower’s cause. Blogs and In Confessions of an Enron Executive up a hotline enabling whistleblowers to e-mails make it easier to raise the by Lynn Brewer, published in 2004, report anonymously. suspicions of regulators and to steer the author says that many of her Earlier this month another bill was their enquiries. colleagues tried to alert authorities to introduced into the Senate designed to Finally, company structures are what was going on, including Margaret “improve whistleblower protections” changing, becoming more open and, Ceconi, who blew the whistle by giving federal employees the same via the large number of alliances and anonymously to the Securities and rights to reinstatement and damages as joint ventures that corporations have Exchange Commission (SEC) in July private-sector employees received with each other, more open-ended. Mr 2001 and then publicly to members of under Sarbanes-Oxley. In particular, a Alford says gloomily that “organisa- the board in August that year. In the whistleblower who can prove that he tions are the enemy of individual Houston court this month, Mr Lay’s was unjustly sacked will be reinstated morality.” But the organisation of the lawyer described Ms Ceconi as “a and awarded damages. future may have fewer dark corners in nutcake.” In most of Europe the legal protec- which to hide the wrongdoings that It is common for organisations to tion given to whistleblowers is weaker whistleblowers attempt to bring to retaliate against whistleblowers by than in America. In June last year, the light. With luck, that could result in questioning their sanity. The strategy, French Data Protection Authority fewer broken lives. known as “nuts and sluts,” is to cast refused to allow the setting up of doubt on the message by casting doubt anonymous whistleblower hotlines, on the messenger. National Fuel Gas saying that such lines were “dispro- Company, a utility based near Buffalo portionate to the objectives sought The ones who got away in New York state, sacked Curtis Lee, with the risks of slanderous denuncia- Maria Bartiromo a highly paid company lawyer, after he tions.” Companies, however, have BusinessWeek, 12 June 2006 alleged that the chief executive and discovered an ingenious compromise: president had ordered him to backdate they can set up their hotlines outside If the Enron saga has a truth teller, it’s their stock options on forms submitted France. Meanwhile, a German court Sherron Watkins, the whistleblowing to the SEC in a way that made the has ruled that the parts of an employee executive who at least tried to do the options worth considerably more. Not code of conduct that invited employees right thing. Watkins hasn’t been shy only did National Fuel then sue Mr to report misconduct to a whistle- about speaking to the media or going Lee (successfully) for the return of the blower hotline breached German on the lecture circuit. But her candor documents that might have provided labour laws. here may surprise you. proof, but it also persuaded a local After reviewing hundreds of laws Who got away? Who hasn’t paid court to ban him from ever repeating protecting whistleblowers, Terance the piper? the accusations. In addition, the court Miethe, a professor of criminal justice Certainly there are some Enron ruled that he undergo psychiatric at the University of Nevada, concluded execs, but definitely the banks. Enron treatment, a ruling that was subse- in 1999 that “most legal protection for could not have done it without all of quently reversed on appeal on the whistleblowers is illusory; few the lending from the banks. The big grounds that it was illegal, but not whistleblowers are protected from deals were with CIBC [Canadian before Mr Lee had been “treated.” An retaliatory actions because of numer- Imperial Bank of Commerce], Citi- official investigation into the matter ous loopholes and special conditions of group, and JPMorgan. [They] routinely was frustrated by the untimely death of these laws, and the major disadvantage lent to Enron because [CFO Andrew] the chairman of the company’s that individual plaintiffs have against Fastow was promising them invest- compensation committee. corporate defendants.” Little has ment banking deals. [The banks] paid happened since to change that view — giant fines … but the individuals who

PAGE 8 THE WHISTLE, #47, JULY 2006 worked at the banks still made their don’t think [Lay] was involved in Whistleblowing bonuses and have their houses in the creating the fraud yet he lied about it at Hamptons. Then there’s [Enron law a critical time. and the police firm] Vinson & Elkins. They are You have said you are unemploy- Roberta Ann Johnson terminal. They have had rainmaker able. What do you mean? lawyers leave. They just had a slew of I couldn’t get a normal corporate eight-year associates leave. You can’t job. There are plenty of people who This is an abbreviated version of an do the compromised level of work that give me a bear hug, but plenty of article published in the Rutgers they and [Arthur] Andersen did and others give me that odd handshake. I University Journal of Law and Urban think you’ll be around in a decade. don’t want to come off as a “poor me.“ Policy in 2005. The full version, What was your reaction to the I am moving in circles I would have including references, is available at guilty verdicts for Ken Lay and Jeff never imagined. Enron became the http://www.uow.edu.au/arts/sts/bmarti Skilling? word for scandal, and the media had all n/dissent/documents/Johnson.pdf A sense of closure that finally the of their villains, and they wanted a Enron scandal is over, but there is hero. So it was fortunate for me. Being Although there are many whistleblow- some sadness, too. Not only for Enron the Time Person of the Year is about as ers in the United States, some of whom being gone and lives being wrecked hero status as you can get, I guess. are publicly praised, whistleblowing is but also because these two guys don’t There is nothing about my life that I not an easy endeavor. There are almost seem to get it. Ironically, that was regret, but this has been the most always dire consequences to whistle- always Skilling’s line: People didn’t bizarre thing that could have ever blowers, to their careers, and to their understand Enron’s business, they just happened. personal lives as a result of their weren’t smart enough to get it. Ken Some people have criticized you actions. Some organizations make Lay’s performance on the stand was because you sold stock knowing there whistleblowing very difficult, and angry and disdainful of the govern- was something wrong. But the rest of therefore, less probable. The police ment. He performed more like Saddam the world didn’t know. Was that department is one of these organiza- Hussein. After the guilty verdicts were insider trading? tions. I argue that the character of the read, Skilling marched out with the I sold $30,000 worth of stock in police department not only makes “I’m innocent, and I’m going to fight August [2001] and some options in whistleblowing less likely to occur, it this” [attitude]. But Lay wasn’t even late September. I was panicked by 9/11 ironically makes it even more neces- ready to post bond. It is just so shock- … and about the company. I sold the sary. In addition, resistance from ing that he was so convinced of his last block and netted about $17,000. police departments and their retaliation innocence. Yes, I had more information than the against whistleblowers costs them and What happened when you first went people buying at the time. Could [the the public dearly. to Lay? Why did you do it? government] have come after me with I had stumbled across this fraud insider trading charges? Sure, they Public office, private gain when I made a job move in the probably could have. Without doubt, the most publicized summer of 2001, and I knew that it What’s your advice to others who example of systemic police bribery is couldn’t be appropriate accounting. So see fraud? the New York police department in the I was trying to leave the company, but Look out for yourself. I counsel 1960s and early 1970s. Plainclothes within two weeks … Skilling left, and people that you need to find the safety officer Frank Serpico, the most famous I thought: “Wow this is big … he has net of another job and leave before you police whistleblower, alerted the been in this job eight months, and now say anything. Also, don’t ever do it public to the bribery. He exposed the he is leaving.“ I figured Ken Lay alone. Then you can’t be dismissed as practice of police officers using their didn’t know and if I just told him, one lone voice. But be ready to lose positions to extract money and gifts. maybe there was a chance to come out your job. The story emphasizing his courage was of this. Here I am telling the guy who popularized in the 1973 Hollywood was CEO when some of these transac- film Serpico, starring Al Pacino. tions were hatched: “Hey, these things New York Police Detective Third happened on your watch.“ It’s almost Grade Frank Serpico was unique, like saying to someone: “I just found according to his biographer Peter out you have been beating your wife. Maas. “He was the first officer in the You have to stop.“ When I think about history of the Police Department who it, it was really stupid. not only reported corruption in its A lot of people felt Lay had some ranks, but voluntarily, on his own, distance from the fraud. Is it even stepped forward to testify about it in conceivable to believe he was court.” innocent? Serpico’s personal experience with It is a little bit like the emperor’s the widespread police practice of using new clothes in that he wasn’t paying public office for private gain began attention. Skilling and Fastow were the when he received an unmarked swindlers, and Lay was the emperor. I envelope with $300 in it from another

THE WHISTLE, #47, JULY 2006 PAGE 9 officer. “It’s from Jewish Max,” the Francisco, Philadelphia, Newark, ment of citizens. The same National officer said, referring to a well-known Louisville, Reno, Kansas City, Detroit, Institute of Justice report found a wide gambler in the neighborhood. Serpico Reading, and Albany also experienced difference of opinion on how equally brought the envelope to Captain Philip police department corruption scandals. citizens are treated. When surveyed, Foran, who was connected to the Although there have been officers the police said that unequal treatment Department’s Chief Inspector’s Inves- in other cities who have testified about was a problem that depended on race. tigating Unit. To Serpico’s surprise, corrupt police practices, Frank As to whether police officers were Foran warned him that if he went to Serpico’s name has become synony- more likely to use physical force the Commissioner, it would go to a mous with whistleblowing. The against blacks and other minorities grand jury, word would leak out and corrupt practice he confronted was than they used against whites in similar “‘By the time it’s all over,’ he said, bribery. It was pervasive in pattern and situations, 5.1 percent of white officers they’ll find you face down in the East practice and was a problem that was believed there was such unequal treat- River.” system-wide. It took a prestigious ment; 57.1 percent of black officers Even without using the envelope investigative commission (the Knapp believed there was unequal treatment; with its damning contents as evidence, Commission), a cooperative mayor’s and 12.4 percent of other minority Serpico was able to provide informa- office, and daily exposure of the officers believed there was such tion about rampant police corruption to problem on the front pages of The New unequal treatment. On occasion, a grand jury. But the grand jury did not York Times to break the pattern of minority police officers have come reach beyond the street police to cast wrongdoing and indifference. forward as whistleblowers, sometimes blame upon their supervisors, captains, in groups, to expose differential police lieutenants and the Chief for either Excessive force treatment to journalists eager to inform being involved or for ignoring what Another serious abuse of police power the public. However, most of the time, was happening around them. Frank is excessive use of force. Appropriate police respect the code of silence. Serpico eventually took his story to use of force can, in many cases, be reporter David Burnham of The New very difficult to discern, especially Addressing the problem York Times with fellow whistleblower since the line that separates brave from Policing is characterized by its David Durk and two other officers. brutal is thin. “In the police world, the autonomy and a lack of supervision. The meeting took place over two years bravest are often the most brutal” and Therefore, supervision and oversight after Serpico first brought the un- they are the ones most admired by would not be a realistic and reliable marked envelope to Captain Foran. other police officers. solution to the problem of police The systemic nature of the police Many surveys of police depart- abuse. Supervisors generally cannot corruption still had not been addressed. ments across the country reveal that see the abuse and, therefore, they The press changed that. there is a problem with the amount of cannot correct abuse. Usually, fellow Starting on April 25, 1970, and for force that some officers use. In May officers are the only witnesses present. weeks afterwards, the police corrup- 2000, the National Institute of Justice, As such, the responsibility should fall tion story made New York front page an agency in the U.S. Department of on the officer witness’ shoulders to news and ignited action by Mayor John Justice, published research findings come forward to report the wrongdo- Lindsay as well as by the NYPD. The related to the use of force. The report ing. But the character of police scandal shook the city. The newspa- “Police Attitudes Toward Abuse of departments prevents this from pers told of “gambling bosses, pimps, Authority: Findings from a National happening, because police officers are drug dealers and business people Study,” was based on a survey of 925 highly dependent on and loyal to their systematically paying officers and randomly selected American police peers. Officers are expected to remain supervisors for protection or favors, officers in 121 departments. silent. and of the police and City Hall brass The survey revealed that nearly 22 Even those troubled by what they failing to act on … evidence.” percent of police respondents reported see remain silent. Although 80 percent New York was by no means unique that officers in their departments of officers surveyed said that they did in its experience of systemic corrup- (sometimes, often, or always) were not accept the “code of silence,” 61 tion. Around the time this scandal was using more force than necessary. The percent said that police officers “do not breaking, 30 police officers in New report also referred to an Illinois study always report even serious violations Orleans were charged with bribery and that found that 20 percent of police by fellow officers.” The National conspiracy to protect organized officers said they observed police Institute of Justice Research suggests gambling and vice; in Seattle, 100 using considerably more force than that the “culture of silence … continu- officers, including the assistant chief of necessary, and an Ohio study that ally plague[s] the reform of American police, were involved in a shakedown found that 13 percent of police officers policing.” Indeed, of those surveyed, system; and in Boston, Washington reported that they had observed police 24.9 percent thought whistleblowing D.C., and Chicago, a nationally funded using considerably more force than was not worth it; 67.4 percent said study revealed that one out of every necessary. whistleblowers were likely to be five officers “was observed in a “given a cold shoulder;” and 52.3 criminal violation even though they Treatment of minorities percent did not think it unusual for knew they were being watched.” In A third kind of misuse of power by police officers to “turn a blind eye.” addition, Atlanta, Baltimore, San police relates to the differential treat-

PAGE 10 THE WHISTLE, #47, JULY 2006 Retaliation ignored and he was transferred to the police to protect our safety and to Penalties for whistleblowers can be very task force he exposed.” “The day preserve our rights and our property. harsh. As Bouza describes it, “the full the three officers were dismissed,” his In the fall of 2000, 70 police offi- force of the agency, formal and wife, he said, “got a phone call cers in the Los Angeles Rampart informal, is brought to bear on the warning that her husband might come Division were under investigation by ‘snitcher’ .…” “Rats are scorned, home with broken legs” and that they federal and state prosecutors for shunned, excluded, condemned, wanted to get rid of the whole family. serious wrongdoing. They were harassed, and almost invariably, cast Also in California, in August 2000, accused of police misconduct “ranging out. No back-up for them. They liter- more than 40 current and former Los from planting evidence to shooting ally find cheese in their lockers.” Case Angeles police officers filed a class- unarmed innocent people.” But only a after case offers evidence of harsh action lawsuit alleging that they had handful could be charged because the retaliation. been retaliated against because they officers who knew of the dangerous For example, in 1998, in Wash- had reported police wrongdoing. The activities were not coming forward. ington, D.C., five police whistleblow- officers believed they were victims of What was the most serious cost to the ers testified at a special Council retaliation for “reporting incidence of community? The bad apples continued Committee hearing investigating excessive force, hostile work environ- policing unscathed. alleged police misconduct regarding ment issues and other forms of police There is an additional social cost. the retaliation they experienced after misconduct.” The retaliation included The pattern of retaliation encourages exposing illegal and improper action. “personnel complaints, undesirable job police officers who have been whistle- The police officers “who complain assignments, demotions and termina- blowers and have experienced retalia- about supervisors or publicly criticize tions.” Many said they were forced out tion to use the courts to collect departments,” The Washington Post of the police department “because they compensation for the harm it has done reported, “end up on a ‘hit list’ that can reported police abuses to their supervi- to them. This is not an argument result in unwanted transfers, a dock in sors.” The attorney representing the against such settlements. Many pay, unfavorable assignments and police officers suggested that “these whistleblowers should be compen- other retaliatory measures.” Evidence good cops fear their own administra- sated. They have had their lives ruined that supports the fact that police tion and management more than the and their careers destroyed all because assignments were affected by whistle- criminals on the street.” He said that they were public servants who acted blowing is that the 7th police district in managers “secretly passed along responsibly. southeast Washington is known as the confidential information about a In sum, the cost of retaliation “dumping ground” for “problem whistle-blower’s background to other against police whistleblowers is officers.” managers to perpetuate the harassment extraordinarily high and we all pay the In the early 1990s, in New York of the employee. The practice was price. The police departments them- City, the mayor convened the Mollen known as a ‘phone jacket.’” selves pay heavily. The threat of Commission to investigate police retaliation against whistleblowers has a corruption. After cooperating with the The costs chilling effect. The threat prevents Commission, police detective Jeffrey The police practice of informally or officers from coming forward to Baird, an Internal Affairs investigator officially punishing whistleblowers has expose corrupt and abusive practices with NYPD, experienced a range of a great negative impact upon society. It and it prevents serious wrongdoing retaliation. For example, he was sent impacts the police because their from being addressed in-house. obscene materials to his house, his unwillingness to support whistleblow- Because police officers’ concerns are workstation was vandalized, he was ers means they lose their best source of silenced and not addressed by the denied promotion, and he received information on corrupt practices. departments themselves, when corrup- threats to his life. Fellow police officers, as we have tion is finally exposed, it is by outsid- In Pomona, California, in 1995, seen, are usually the only witnesses to ers – an investigative commission, a police officer Jed Arno Blair alleged wrongful behavior. Discouraging them grand-jury inquiry or a citizen that other officers stole money and from acting responsibly and from complainant. For cities and towns planted drugs on suspects. His allega- coming forward promotes wrongdoing across the country, when police tions eventually led to the firing of and further supports the wrongdoers. officers who come forward to expose three officers. (Two were reinstated.) Society at large also pays a price wrongdoing are silenced, it allows the Blair himself suffered retaliation for for police whistleblower retaliation. corrupt practices to continue on our coming forward. He specifically Although wrongful behavior is not the streets. described his colleagues stealing his norm in policing, nevertheless, the equipment, interfering with his radio department pattern of ignoring the Roberta Ann Johnson works in the calls, threatening to kill him and his message of dangerous and illegal Department of Politics, University of family, and scrawling the word “rat” police practice and punishing the San Francisco and is author of the on his locker. He said “his locker was messenger who reports it increases book Whistleblowing: When It Works — and Why. spat in and wired shut with a coat danger to the larger community. It hanger … his shirts were dumped in a leaves the wrongdoers unchanged and urinal and soda was poured into his unchecked. This has serious implica- patrol car.” Blair’s “complaints were tions when we are asked to trust the

THE WHISTLE, #47, JULY 2006 PAGE 11 Letters and articles

Whistleblowers Bundaberg Hospital and mafia associate. All SA police did Patients Support Group was to tell Cassidy and Cassidy’s of the Year 2005 associate John Lazdins on 28 June The Award has been given for the success of this group of members of 1993 that I was the bomb informer, as On behalf of the Whistleblowers the public to ensure that the disclo- transcript pages 11250-11254 prove. Action Group Queensland Inc, I advise sures of staff and patients at Bunda- These pages are a record of my cross- that the Annual General Meeting of the berg did not dissipate within the forest examination of Peter Dickson of the Group selected Dr Con Aroney and of the law. For the limited value that SA police in my 2001-2002 retrial and Nurse Toni Hoffman joint recipients of emerged from the Davies Inquiry, it can be provided. the 2005 Whistleblower of the Year. was still a necessary first step to the Stephen Westmacott of the PCA The other annual award, for Whistle- reform of Qld Health. It was a first step telephoned John Lazdins on 31 August that would have been stopped, but for blower Supporter of the Year, has been 1993 and told Lazdins that I was the given to the Bundaberg Hospital the efforts of the Bundaberg Hospital Patients Support Group. informer on this bomb-to-come lot. Patients Support Group. Westmacott admitted this in his cross- The award citations carried the The Group, with its two awards, has examination by myself at my 2001- following commendations from the sought to recognise both the integrity 2002 retrial. Group. and the courage of whistleblowers, and So the police deliberately gave me also the contribution of persons whose up to mafia criminals with criminal Dr Con Aroney and actions have been of outstanding records and the PCA gave me up as the Nurse Toni Hoffman assistance to improving the circum- informer to the same criminals on 31 The Award has been given jointly for stances for whistleblowers in this August 1993. Of course the criminals the leadership shown by these medical State. said there was no bomb coming to professionals in disclosing to the public This is the thirteenth year that the police in SA. Lazdins told Westmacott, of Queensland the disastrous state of Group has made its awards to deserv- “Grosser is so full of shit it is not Queensland Health. ing persons. funny,” as Westmacott recorded on a Dr Con Aroney made disclosures document dated 31 August 1993, that I about persons dying while on waiting now have. lists for life saving surgery. He also Then on 2 March 1994 came the exposed the practices of bureaucrats using rational economic theory to make Letter from Tony Grosser National Crime Authority (NCA) decisions, countermanding doctors, on terrorist-type bomb murder of the specific medical treatment that I, Tony Douglas Grosser, ask for Geoffrey Bowen. patients were to receive. For these justice and for your help to try to fix SA “anti-corruption” cop Peter disclosures, the Qld Health system that the Police Complaints Authority Cooling was the one who told CIB cop protected Dr Patel effectively excluded (PCA) of South Australia. Peter Dickson to tell Cass I was the Dr Aroney from service in his specialty. I lodged over 40 complaints with bomb-to-come informer. Anti-corrup- The continuing treatment of Dr Aroney, tion SA police are supposed to solve as with the treatment of nurse Wendy the PCA from 1991-1994 concerning corruption, not create death threats and Erglis (Whistleblower of the Year in allegations of SA police corruption, 2003) is the indicator for all as to murder, drug dealing, etc. They possible murder of a police informer whether Qld Health, now exposed, is covered up these matters. On most on serious topics. The trouble was I genuinely repentant for the grievous occasions they had SA police investi- was putting in corrupt SA police for harm that it has brought to the people gating SA police — mates investigat- mafia activity with the criminals, so of Queensland. ing their mates. SA police tried to get rid of me. Toni Hoffman exemplified how the The investigating police even told On 3 May 1994, Star Force police responsibilities of medical supervisors the police I had complained about, “Do did a raid on me, trying to murder me, should be carried out. Having received as I knew too much. Another cover-up disclosures from her nursing col- not worry. Nothing is going to happen by SA police was put in place. leagues, Toni Hoffman did not leave on this lot.” I discovered this in the investigation of mistreatment of documents at my subpoena to police in Then SA police kept the 31 July patients to the dead-end processes of my retrial. The SA police had the 1993 Channel 7 TV document from the a rogue administration. Toni Hoffman result of the investigation worked out NCA bomb inquest in 2000 (I obtained ensured that the very serious disclo- in their favour before they investigated it by subpoena 2001-2002). This sures from her staff reached forums the allegations. document clearly shows SA police that would cause a proper response to I was warning SA police of a failings or criminal activity by not the dangers present. Toni Hoffman did coming bomb for locking up Italian stopping the then coming bomb. SA not act just to protect her professional police only wanted to blame Domenic position or just her patients — Toni mafia head Bruno “The Fox” Romeo, Perre over the NCA bomb, as I wrote Hoffman acted in the interests of the based on information given to me from public and in the public interest. Romeo’s right hand man, Gregory to the coroner prior to the NCA bomb John Cassidy (“Cass”), an outlaw bikie inquest. I enclose Star Force officer Mark

PAGE 12 THE WHISTLE, #47, JULY 2006 Penfold Walter Roberts’ 1994 psy- berg Hospital] carried out by the Hon deficiency in force, despite the chiatrist’s report where he admits Geoffrey Davies AO completed late findings of Commissioner Davies. police shot at the police and that this last year The Ombudsman recommended to was the closest he got to being shot — “Sending whistleblowers to that Davies that a “new” system be estab- by his own police, in my so-called Office would be like sending patients lished where public interest disclosures siege, on 3 May 1994, eight weeks to Patel - the statistics would be of maladministration would be after the NCA Adelaide bomb murder worse,” says solicitor Gordon Harris, required to go to the Ombudsman’s of anti-mafia cop Geoff Brown. President of the Whistleblowers Action office, while disclosures of official My retrial miscarried as SA police Group (WAG). misconduct would go to the CMC. told the court lies. The PCA has Jean Lennane, President of Whis- This dual watchdog net sounds covered up all I write about and more. tleblowers Australia (WBA), is equally reasonable, and the lawyer, Commis- If you think these things do not direct: sioner Davies, recommended this happen, please read the recently approach. Whistleblowers, however, published book by a police informant Commissioner Davies gave five believe that Davies’ Paragraph 6.510 to the NSW Royal Commission into deficiencies that caused the prob- has sold out whistleblowers, consign- police corruption, titled Sympathy for lems in Queensland Health. The ing them and their disclosures to the the Devil: Confessions of a Corrupt fifth deficiency was the culture of control of a partnership with the CMC Police Officer, by Sean Padraic as told concealment in government. This that will ensconce the culture of by Trevor Haken. fifth deficiency was the cause concealment within the government Thank you for reading my con- Davies attributed to the reprisals rather than mitigate it. The “net” is cerns. The independent politician John that he found had occurred in that really a “Catch 22,” whistleblowers Hatton spoke out about these things in arm of the public service. It is the hold. NSW. It took great courage to expose watchdog authorities like the Project Rainbow demonstrated the the truth as he did, but it led to the Office of the Ombudsman and the traps involved in the dual watchdog net truth being acknowledged and the Crime and Misconduct Commis- idea. necessary changes taking place. It is sion (CMC) who must accept Rainbow was the code name given time for similar things to happen here responsibility for the fifth defi- to a Senate whistleblower from in SA. ciency. Queensland who had taken legal action against the Queensland government. Tony Grosser’s troubles started in 1991 Whistleblowers have been wary of the The Queensland government allegedly when he responded in good faith to Office of Ombudsman in Queensland withheld documents from discovery, Operation Hygiene in which the SA since 1997. In that year the office and disposed of other documents both police commissioner asked members wrote in its annual report that it after and before litigation was afoot, in of the public to supply any information thought that disclosures of mistreat- circumstances very similar to the they had on police corruption. With family connections to the mafia, Tony ment of public servants were whistle- Heiner affair [involving government supplied information that potentially blowing only in a technical sense, not shredding of documents relevant to a was seriously damaging to police intended by the Whistleblower’s legal action]. This document will use involved. The persecution that followed Protection Act the same codeword, Rainbow, to refer should be a warning to anyone thinking The “Post Office” investigative to the whistleblower. of reporting serious police corruption to practices used by the Ombudsman’s The CJC found no suspected the police. Tony has been in prison Office, in forwarding to chief execu- official misconduct in the govern- since 1994. He can be contacted at PO tives the disclosures made about the ment’s action regarding the treatment Box 6, Pt. Augusta SA 5700. This is an activities of those chief executives and of Rainbow, and refused to investigate edited version of his letter of 24 April to Whistleblowers Australia. their senior executives, have been what would have been another Heiner- highlighted in other government type affair (at least with respect to the inquiries. These failures have led to destruction/disposal of documents allegations that this watchdog office wanted for court proceedings). The Whistleblowers say no to has been captured by the public CJC suggested that the matters may be authorities that the office was meant to maladministration and of interest to the the Ombudsman’s office oversee Ombudsman’s office Joint press release of Whistleblowers Whistleblowers have been espe- The Ombudsman’s office found Australia and the Whistleblowers cially frustrated by the refusal by the that the maladministration was associ- Action Group, April 2006 Ombudsman’s office to refer suspected ated with allegations of official official misconduct to the CMC misconduct, and refused to investigate Whistleblowers throughout Australia (previously the CJC). This alleged that maladministration. The office also oppose any transfer of the responsibil- breach of the Criminal Justice Act by refused to refer the matters to the ity for the protection of Queensland the Office of the Ombudsman is at the CJC/CMC. whistleblowers to the Office of the heart of all concerns that the office is The dual watchdog idea then did Ombudsman. now the lynchpin of the government’s not act to “catch” an investigation of This transfer was the submission new strategy for maintaining the fifth the disclosures. It acted instead as a made to the Dr Death Inquiry [Bunda- “Catch 22” for any investigation, so

THE WHISTLE, #47, JULY 2006 PAGE 13 that no investigation occurred. Both to the Ombudsman’s office, Freedom ratify rights of appeal for everyone and the Ombudsman’s office and the CMC of Information and Workers Compen- that is a lack of basic human rights,” a knew of each other’s refusal to investi- sation. I played a small part as a UN officer said. I promised to do all I gate. catalyst for a degree of change at the could about this anomaly when I This is a principal demonstration of WC office as a result of my submis- returned to Australia. how the fifth deficiency would thrive sion to the Electoral and Administra- One of the avenues that I appealed in the CMC-Ombudsman’s dual tive Review Commission (EARC). to for correction of the maladministra- watchdog net. Part of my submission was published tion was the Ombudsman. The article Project Rainbow was a $50,000 in EARC’s Report, stating that “the “Sham reviews” by John Wright (The study on the methods and risks of lack of appeal from the Medical Whistle, May 2006) indicates, in effect, terminating Rainbow’s public service Tribunals of the WC office is a lack of what I was up against. I was shocked employment because of the “provoca- a basic human right.” Medical tribu- to discover that it did not seem to be tive” court action Rainbow had taken. nals have usurped the people’s right to mandatory to give particulars when Rainbow was sent to an alleged courts of the land. Tribunals mainly responding to my later queries; apply “gulag” and [employment was] lack legal protections built up over proper procedure and rules of evi- terminated. The “provocative” court centuries of law. dence; cross-examine hostile wit- action was taken at the In EARC’s Report, Dr Morley also nesses; or allow me to be present at recommendation of the Senate Select engaged in debate with the WC office hearings about my own case review. Committee that was inquiring into manager about the Medical Tribunal’s Many readers probably would not whistleblower cases in Queensland in anomalies. Subsequently the expect the same sham reviews to be 1995. Queensland Government set up Q- taking place in an Ombudsman’s The report on Project Rainbow was Comp to oversee the WC office. Q- office. But consider that Terry Gygar only released after the Information Comp has the ability to overturn a MP, then in Parliament, took my Commission was removed from the wrong decision by a Medical Tribunal. documentary evidence, that clearly control of the Office of Ombudsman. But, injured workers complain, the reveals the maladministration, three This was 8 years after Project Rainbow WC office can then insist that the times to the Ombudsman, but still this was undertaken, and repeats the applicant must go before another office refused to ask for correction of alleged breaches of Regulation 99 that Medical Tribunal. maladministration or report it to occurred in the Heiner affair. When I blew the whistle about bad Parliament as the Ombudsman Act The Heiner affair remains the cause work conditions affecting my health, requires. This seems to indicate of continuing efforts by Government in part of the denigration used against me maladministration by the Ombuds- Queensland to maintain the fifth was to stigmatise me in respect to my man’s office, or even protection of deficiency. That is why whistleblowers mental health — not a new issue to others in wrongdoing, I feel. nationwide have made the destruction whistleblowers. The Courier Mail Subsequently I did manage to get of the Heiner documents a Case of published my letter to the editor about the Ombudsman to perform further National Significance. being stigmatised by the unfair and reviews. But the rigour of these The government does not view the damaging label of “personality reviews is questionable. You would culture of concealment identified by defective.” But I was never labelled have to wonder at a letter found under Commissioner Davies as a deficiency thus until I was injured working and Freedom of Information, from the at all, for the culture still holds back asked for my deserved compensation, Ombudsman’s office asking the insti- investigation of the alleged rape of and the employer withheld the real tution I complained about to investi- girls at John Oxley Youth Centre, and facts about the work I did and reports gate itself for the Ombudsman. As a the culture worked against Rainbow. about my work injury. Other articles result of this strange action by the But it would not have worked as about statements I made also appeared Ombudsman, others at work, also well against Rainbow without the in the Courier Mail and the Gold injured by the work chemicals, denied Catch 22 watchdog operation now Coast Bulletin. their own injuries and denied my being put by the Ombudsman’s office I spoke with officers at the United reports about adverse work effects. as the key to a better Queensland. Nations when in Switzerland. Unin- They were probably concerned for vited, I only gained entry when their jobs. In respect to the allegedly stopped by the guards at the big iron false statements by these witnesses, if I gate, because one officer looked at my had the legal protection only available How a whistleblower grassroots report about “Anomalies in in courts, they would have been can’t get workers compensation,” carried all the declared hostile witnesses and cross- maladministration way from Australia, and phoned examined to get the truth. But the through to get me an appointment Ombudsman’s office told me “It’s only corrected forthwith. The UN officers told me going to be who we believe.” Whereas Muriel V Dekker that they were aware of the lack of what the Ombudsman’s office should human right of appeal from the WC have said is what the Ombudsman I am a whistleblower recording my office Medical Tribunals and had from another state, George Brouwer, experiences about trying to get contacted Australia about this said: “We put our foot down and let maladministration corrected in respect anomaly, but “Australia refused to them know in no uncertain terms it is

PAGE 14 THE WHISTLE, #47, JULY 2006 our job to get to the bottom of Longland wrote that my medical and internal review on its decision not to complaints” (“Protection call for work evidence shows that there is a correct the maladministration about the informers,” The Whistle, May 2006). work or work-aggravated injury and wrong and missing work, is to ask for Another FOI-obtained document there should be redress. Sir Longland external review by the FOI Commis- shows that on another occasion the left his position in 1979 and, I feel, that sioner. I requested external review and Ombudsman’s office thanked the he would have expected that the sent the documentary evidence, university where I had worked for “the Ombudsman’s office would report the obtained under the FOI Act from the nice lunch.” Was there wine with the maladministration to Parliament. This WC office and the university, showing lunch? Is that how the Ombudsman has not happened says today’s Minis- the fact of maladministration. officer missed seeing the obvious ter, the Honourable Tom Barton MP. The FOI Commissioner, who also maladministration that is in my work This is indeed concerning because one wore the hat of the Ombudsman at that file? Further the Ombudsman officer of the reasons the Ombudsman’s office time, could not deny that the docu- was supposed to stay independent and became necessary was, I understand, ments show the work maladministra- rigorously investigate my work file the failure of public servants to tion. Instead the FOI Commissioner and to be thorough, cross reference it properly inform ministers. wrote that he would not correct it with what the WC office was given by After the Freedom of Information because it was “not affecting your the university. Instead there was nice Act was legislated, eternal hope and health, house or relationships.” I lunch. Terry Gygar told me that he belief in justice rose high again in my replied that all three were being would table the documents in Parlia- breast. Hope continued to bloom when affected and sent some evidence ment showing that the Ombudsman’s one of the lesser matters was corrected. showing this. This too was ignored. office had documents revealing After this minor success, about four Voices of concern about democ- maladministration but was not per- main maladministration matters racy in Australia are growing louder. forming its job of asking for correction remained to be corrected. But now the This concern was also mentioned in of maladministration and was not struggle continued to try to get this The Whistle, May 2006, in Derek informing Parliament. Unfortunately, other maladministration corrected. Maitland’s article, “The Gang of Six.” he lost his seat in a by-election before Under the FOI Act, I asked the WC I feel this concern is germane particu- performing this duty in the public office to correct its maladministration larly when the Ombudsman’s office interest. of not obtaining correctly all the facts and the FOI Commissioner both fail to Today the Ombudsman’s office about work I performed. Although this perform their duty as required under still will not answer with particulars is also maladministration by the their acts. And a university and the but only writes that nothing more has university, it is the job of the WC WC office can breach the law without to be done for me “because there have office to ensure it not only obtains the accountability or transparency despite been reviews.” When I point out that evidence but also to ensure that it is good laws, that are not applied. two Ombudsmen are on the record as correct, a Supreme Court book shows. There is more than one way to saying that my case has not been The safeguard of the Statutory Claims define democracy: There is democracy treated properly, the ignore-it card is Procedure is required to be applied by and there is liberal democracy. played. The late Heinz Leymann wrote the WC office when others contradict Democracy gives citizens the vote. and spoke at meetings about this issue. what the injured worker tells the WC Liberal democracy allows equity and Professor Leymann said that it is office, according to Minister Tom justice for all citizens. Australia seems happening worldwide: that the Barton MP and Santo Santoro MP. But to lack a liberal democracy. However, authorities let people complain about although the university did contradict the possibility that maladministration an issue and let them go down all the what I told the WC office is the work I may yet be corrected remains because, avenues to appeal but in the end do not performed and so on, the W C office surprisingly, one or two other avenues give them a substantive outcome. never applied the required statute to still seem to be available. “People all around the world are my case and never informed me. I was beginning to stand up about this issue,” denied natural justice and opportunity Muriel Dekker is a member of Whistle- Professor Leymann said at an interna- to reply. blowers Australia, founder of the tional conference about bullying of Condemned, with a hearing but Workers Compensation Support professionals, held at St John’s without a fair hearing. Informing Network for injured workers, and member of the Historical Abuse College, University of Queensland, in ministers that the safeguard was not Network, for those abused in the past the late 1990s. I spoke about my applied leads nowhere when the WC in church and state children’s homes experiences at this conference. office tells the minister that they were and children’s detention centres. Significantly, in my case the first thorough and applied all laws. But this Ombudsman, Sir David Longland, too is a sham because the WC office overturned his first letter saying that sends no substantiating evidence to the there is no maladministration. This minister and there is none. It could be happened when I managed to get argued that there is an inbuilt protec- documents past his officers to him tion system for public servants in any showing that the documentary wrongdoing by them. evidence clearly reveals maladminis- The next step under the FOI Act, tration. Then in his second letter Sir after asking the WC office to perform

THE WHISTLE, #47, JULY 2006 PAGE 15 Whistleblowers Australia contacts Conference and AGM

ACT: Peter Bennett, phone 02 6254 1850, fax 02 6254 3755, [email protected] New South Wales “Caring & Sharing” meetings We listen to your story, Whistleblowing: provide feedback and possibly guidance for your next few steps. Held every Tuesday night at 7.30pm, Presbyterian What are we Learning? Church Hall, 7-A Campbell St., Balmain 2041. General meetings are held in the Church Hall on the first National Conference Sunday in the month commencing at 1.30pm. (Please confirm before attending.) The July general meeting is the Saturday-Sunday 25-26 November 2006 AGM. Contact: Cynthia Kardell, phone 02 9484 6895, messages 02 9810 9468, fax 02 -9418 4431, [email protected] Special guests: Dr A J Brown and his Website: http://www.whistleblowers.org.au/ team from the Griffith University Goulburn region: Rob Cumming, phone 0428 483 155. Wollongong: Brian Martin, phone 02 4221 3763. whistleblower study Website: http://www.uow.edu.au/arts/sts/bmartin/dissent/ Time and venue: Queensland: Feliks Perera, phone 07 5448 8218, [email protected]; Greg McMahon, phone 07 3378 9am for a 10am start 7232 (a/h) [also Whistleblowers Action Group contact] Emmanuel College, South Australia: Matilda Bawden, phone 08 8258 8744 Sir William McGregor Drive, (a/h); John Pezy, phone 08 8337 8912 St Lucia, Brisbane Tasmania: Whistleblowers Tasmania contact: Isla MacGregor, 03 6239 1054 Victoria Saturday conference: $50 Meetings are normally held the first Sunday of each month Sunday AGM & celebration: $35 at 2.00pm, 10 Gardenia Street, Frankston North. Contacts: Stan van de Wiel, phone 0414 354 448; Mervyn B&B accommodation at college: $55 Vogt, phone 03 9786 5308, fax 03 9776 8754. Whistle Contact: Kevin Lindeberg Editor: Brian Martin, [email protected], phones 02 4221 3763, 02 4228 7860. Associate editors: Don Eldridge, Isla phone: 07 3390 3912 MacGregor, Kim Sawyer. Thanks to Cynthia Kardell and [email protected] Patricia Young for proofreading.

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. If you want to subscribe to The Whistle but not join WBA, then 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]

PAGE 16 THE WHISTLE, #47, JULY 2006