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

The

Whistle No. 93, January 2018

Newsletter of Whistleblowers Australia (ISSN 2205-0299)

Articles

What we want — why the federal report’s admission, “What does that mean?” I hear you why now and what conceivably could ask. Well, when someone comes is a little respect! come of it in this parliament? knocking on our door for information Cynthia Kardell You’ll remember the Coalition only and support, we should be explaining agreed to the inquiry and to set up an why slavishly sticking to “the system” expert panel in order to secure senator as we know it, in the hope of protec- Nick Xenophon’s support on an tion somewhere down the line, usually unrelated bill. after you’ve lost your job and your Maybe the pressure of scandal family, is a mug’s game. No more piling upon scandal in the banking and keeping quiet lest we invite retribution financial sector left them with no place from our employers. No more having to go after nearly 25 years of looking to lie, to keep confidential what should the other way as whistleblower after always have been publicly known. No whistleblower was sacrificed so some more letting a bullying boss tie you in guilty executive could save face. If so, knots over it. No more hoping for is that the full extent of it, other than to crumbs to fall from the table. We need tinker around the edges some more: to to adapt what we know after nearly 25 tighten up the grounds on which the years of trial and error and use “the protections might apply, by asking the system” to our advantage, not theirs. whistleblower to do more? (No Here’s what I’m thinking. LAST SEPTEMBER the federal report on surprises there, I hear you mutter!) whistleblower protections in the corpo- The first thing is to take a reality Legislation usually follows change rate, public and not-for-profit sectors check. Don’t be naïve. Acknowledge and it rarely keeps up, because the by the Joint Parliamentary Committee the obvious. If you’re right about what on Corporations and Financial Services more conservative thinkers are con- you’ve uncovered, then the organisa- made the astonishing finding that cerned to keep their hands firmly on tion is probably not the organisation “whistleblower protections remain the levers of power. We’ve seen this in you like to think it is. So put aside any largely theoretical with little practical the way whistleblower legislation has romantic ideas about getting an effect in either the public or private been developed, because the weight of emotional mea culpa from your boss. It sectors.” It’s my emphasis. I couldn’t legislative change has been to hold us is probably not going to happen. Check let it go unnoticed as I think we need increasingly more responsible for fail- with Brian Hood, the Reserve Bank of ing to get protection. We need to turn to savour that admission, because it Australia whistleblower. He got the that around. We need to remember that has been a long time in coming — sack, like so many others before him legislation has never helped us, but nearly 25 years. and since. neither has it stopped us — from doing

what we do — which is why I think what we do is the more important. Of course, we need to continue to press our legislators, employers and others to do what we know needs doing, even if at times we know that pigs won’t fly! They have a job and we should demand they do it. The way forward as I see it is to Brian Hood find ways for whistleblowers to do the things that we know work. The things Realistically, if they are prepared to that we think should be enshrined in scam the system then they have built law now, like being able to go to the up a network of likeminded souls, The federal whistleblower protection media without fear of being prosecuted some on the take and some not. So law has only been in place since and to blow the whistle, anonymously learn your lesson when it matters, not January 2014. I remember Labor’s or not, through a solicitor, media or after it costs you everything. Mark Dreyfus MP saying there was no other agent. We need to strike out in So don’t live in hope, don’t delude real appetite for it in a hung parliament our own direction knowing that what yourself. Let them do that, because with more pressing things on hand, and works for whistleblowers will eventu- history shows that crooks get cocky, that it was only ever intended to bring ally force the changes in law that we often when they shouldn’t. If we learn the federal jurisdiction into line with want. Frankly, I can’t see our legisla- to play it right, this might just give us the laws already operating across all tors or our employers willingly ceding the edge we need. state and territory jurisdictions, some power to whistleblowers any time Work out who has the levers of since 1993. So the question remains, soon. I doubt it’s even in their DNA. power, real or personal, and who is in

2 The Whistle, #93, January 2018 his or her debt and so on. Because you careful with what you allow your have only a little power, you need to lawyer to say and do on your behalf. leverage it to stay out of their reach If you’re a member of a union, and keep them in the spotlight. And it don’t wait until you’ve got a problem, can be leveraged, because they’re get your union’s rep or legal officer to scared! You need to keep them scared. be the post box and then, when things That means depriving them of a target, get scary, they will already have your by staying undercover one way or back. another and moving on them, when Either way, make sure you have they least expect it. proof of your prior work performance Keep in mind some of the better record as a benchmark. known stories as a way of explaining If you don’t mind being known, still how it might be done. For example, think about using a lawyer or union as Mark Felt’s story. an agent, even if they just act as a post box, because it will increase your chances of not becoming a target your- self. Make sure you get someone expe- rienced in the relevant areas of law. Or you might consider leaving, with Chris Masters the goods. In 2003 Andrew Wilkie MP re- Then there are the recent Murray signed after removing the documents Darling Basin and Crown Casino he’d need to prove the government had whistleblowers who remain unknown. lied about Saddam Hussein having They’ve managed to bring about inde- weapons of mass destruction. He then pendent investigations into the alleged told his direct boss what he was doing, crimes and to stay out of trouble. handed in his resignation with imme- Maybe one day, we’ll know them. diate effect and walked down the hill from the ONA to an interview with journalist Laurie Oakes. It went to air on the ABC that evening. Yes, Wilkie suffered a bit of name calling, but

Mark Felt financially and psychologically he was already beyond their reach. He blew the Watergate scandal wide Ten years later in 2013, US analyst open in 1972 and was only ever known Ed Snowden downloaded classified as “Deep Throat” until after his death records of routine surveillance of the in 2005. He went to enormous efforts US public and left his country for to make sure the journalist didn’t know good. He is safely out of their reach in him, just the information he supplied. In each story the scammers and the Russia. You might think he paid too Then there’s Daniel Ellsberg who crooks were deprived of a target, big a price, but before he did anything broke his own cover in 1973 when it which kept them and not the whistle- he decided what he wanted to achieve was safe, after leaking the Pentagon blower in the spotlight. and what that meant if he was to suc- Papers on America’s war in Vietnam Not all stories will get a journalist to ceed. Tellingly, Snowden took quite a in 1969. He avoided prison because of come on board, but there are other, few months to persuade the journalist the Nixon administration’s illegal more simple ways of staying out of of his choice to do the job he wanted. attempts to destroy him. (I’ve just their reach and that are within your You might think that they are two learned a woman, Katherine Graham, control. extreme cases and they are, but it’s the the publisher at The Washington Post, You can employ a lawyer to provide strategy that’s important here. If you went out on a limb when her male col- a covering letter for a statement which want to keep them and not you in the leagues said no, way too risky. That’s sets out the evidence of wrongdoing, spotlight, get the documents offsite one for the ladies!) where other evidence can be found, and organise a new job before you Closer to home: two police officers only ever refers to you as “my client” move. And if your employer tries to secretly teamed up with Four Corners and sets out your rights and their obli- sue you for theft of documents, journalist Chris Masters, eventually gations under law. Because it comes hammer them publicly with proof of bringing down the government in the from a lawyer, it tends to focus their their threats. “Moonlight State” otherwise known as mind and increase the chances of your But there are other ways, for exam- Queensland in 1987. They only re- allegation being taken seriously. It also ple, upfront and in a group. Four allied vealed their part in the investigation in sets up a safe system for both parties to health professionals in Sydney put another Four Corners program last interact as the investigation unfolds. together a formal signed document that year. You can limit the legal costs by being itemised the allegations and available

The Whistle, #93, January 2018 3 evidence, identifying it as a public How the tides change Five plus years later, there was still interest disclosure under the relevant Lynn Simpson no contact from my old colleagues act and setting out the rules of regarding employment opportunities. engagement. It was sent by registered This does not come as a surprise my FOR THOSE UNFAMILIAR with my initi- post to the hospital CEO and there- ation into the whistleblower world, I trade is contentious and fears publicity after, they refused to deal with anyone have prepared a summary of major of their poor practice. What was a other than as a group as previously pertinent actions … to date. surprise was that DAFF had continued advised. From 2001 I was a shipboard vet- to host my submission on its web page They were successful. They had erinarian accompanying livestock on for around six months after it was planned it upfront, knowing that they voyages all over the world with the clearly proving problematic to them, had to avoid any attempt by their merchant navy. Life as a vet can be the industry and of course myself. employer to pick them off one by one. challenging enough. Add the concur- “First dog on the moon” captured this Collective action is reliably effective if rent role of being an international beautifully in a cartoon (see page 6). the group remains intact. They imag- seafarer and you enter a world many During this six-month period, the ined how it might all pan out and were cannot comprehend. whistleblower recipe continued to be prepared when their employer tried the prepared. I was gradually dismissed old divide-and-conquer routine. from meaningful work, and contact So, if we’re smart we can help with colleagues evaporated. I became tomorrow’s whistleblowers to exercise all but invisible in people’s company. their rights as we think they should be Meetings about me were held … I able to, and stay safe. Over time, if we wasn’t invited. I was relocated to a get our way it will become more separate building to work in an ordinary for executives and managers unfulfilling job with my friend the to come clean rather than take the office pot plant. chance of the information being I soon psychologically broke and splashed across the media somewhere, went home — a nervous breakdown. because they won’t be able to control Life was not as I knew it and would whether or when that incriminating never be the same again. evidence is put out there in the public As such, in 2012, when I was offered In February 2017, 38 lawyers later — which is what they do now, to our the opportunity to be the technical and having sold most of my posses- great detriment. advisor to a government group sions that didn’t breathe, and after The key here is to remember not to unfamiliar with my daily work, I leapt much governmental obfuscation, har- be too worried about not complying at the chance. Utilising my unique assment, bullying and repeated inter- with the system, under threat of losing experience to help initiate improved ference with my home computer and protection, because after all, as it animal welfare standards was a dream IT anomalies, I finally got my case to stands there is nothing to lose! job come true. the Federal Court in Canberra. I filed Aretha Franklin, civil rights cam- Too good to be true as it turns out. on the basis of negligence, breach of paigner and blues singer from the I was offered the opportunity to contract and damages. After two medi- 1960s, interrupted my thoughts as I contribute a submission to the gov- ation sessions we finally “settled out of wrapped this article up. She was belt- ernment appointed steering committee. court” (a stupid saying as we were in a ing out her signature tune on the radio Instead of the usual couple of pages of court house). and I couldn’t stop myself joining in written text, I chose to provide 44 An agreed statement was part of the … What we want … is a little respect, pages of cut and pasted poorly devel- settlement: heh … respect. You know, that’s oped/regulated legislation and images what’s we need. Respect for what we from voyages of animals in transit to Dr Simpson’s legal proceeding do and respect for the choices we put this legislation into context. against the Commonwealth arising make. Within three months of submitting from the inadvertent publication of this confidential document, the Aus- her submission to the Australian Standards for the Export of Cynthia Kardell is president of Whistle- tralian Department of Agriculture, Livestock (ASEL) Review steering blowers Australia. Fisheries and Forestry (DAFF) “inad- vertently” published it on the internet Committee has settled on confidential terms. complete with my name. The parties are pleased the The public deserved to know what matter has resolved. The was truly happening with our livestock Commonwealth wishes Dr Simpson at sea. However, it is a small industry well. and I was soon blacklisted. This was why my submission needed to have I refused to be gagged and the only been confidential. confidentiality that exists is the legal My career was decimated as so minimum as per any case. During the commonly happens with this recipe. years of playing a cat-and-mouse game of being ignored by the government

4 The Whistle, #93, January 2018 whilst trying to progress my legal case (IMO), the UN’s shipping arm. They anyone from activists, vet students, vet I grew increasingly frustrated … and were appalled. professors, primary producers and broke. interestingly I’m now being asked to speak to legal students studying animal welfare law. I’m soon to find a scarf, pack a bag and head to Harvard Uni- versity to lecture to their students. My emails are constantly filled with people wanting information on animal transport and asking for help in this field. No paid work to date, but the Feedback from the articles, even of gain I get in self esteem and pride is the negative type, kept feeding more probably worth more than cash. It’s article ideas and hence more articles. just a shame I can’t exchange any of it Against the advice of many lawyers I had seen myself as simply a vet. for groceries. I spoke to, I went to the media. ABC’s Now I was being asked to expand on It sounds like a fairy tale. And I 7.30 Report did a comprehensive piece topics such as: must admit I often shake my head as to on me in mid 2016. This was a dizzy- how things have worked out. It’s by no ing event as I wasn’t the limelight Animal cruelty means an easy trip. I have PTSD, type. Animal welfare depression and anxiety as a result of Little did I know it was to change Seafarer welfare the government’s betrayal and my my life further. Interview offers came Public health: anti microbial understanding of how common this is. in thick and fast as of that evening. resistance (AMR) from misuse of I struggle with my mental health every Radio, magazines, newspapers and drugs in food producing animals day, but with every positive impact individuals. Sexual harassment from telling my story or exposing Soon I was doing it all. Wisely Mental health more evidence to try to keep the advised by Whistleblowers Australia, I Environmental issues bastards honest, I feel a little better. kept the light on me, the pressure on Regulatory capture To anyone in a similar situation, just the issue, and refused to disappear into Ship design. hang in there and take deep breaths. oblivion. Although the brochures looked tempting. And to top things off I have been In the six months preceding settle- contacted by the world’s largest ment I managed to get a fresh piece in publishing house for my memoirs from the media each week. birth till now. A type of cathartic This was a complete eye opener. torture. Several well known publications The day before I settled in court in printed articles about me but interest- Australia, I found out that my submis- ingly it was a little known Maritime sion, that was now a global document, publication that would prove to be my had been used in a Supreme Court case solid rock. in Israel. Splash 24/7. I had never heard of A petition to ban live exports to them. They contacted me the day after Israel was based on my submission. the 7.30 Report story aired on TV. No pressure … not! Soon after being free of the federal Splash: “Could you write a 500–600 court I found myself in Israel defend- word piece on your opinion of live ing my credibility on the back of this export?” case. I was soon presenting on Israeli Lynn: “No, I replied. I could never TV and then whisked off to the Knes- express my opinion in so few words.” set (Israel’s Parliament) in Jerusalem Splash: “OK, would you be inter- to present to Members of the Knesset on live export and its affiliated risks to ested in doing a series?” animals and consumers. Lynn: “Hell yeah!” Lynn Simpson is a member of Whistle- I returned from Brazil several weeks blowers Australia’s national committee. So began a new chapter in my life. I ago after presenting to a legislative started writing pieces for Splash and assembly-type group to launch a new they hit the shipping world hard, and Ban Live Export campaign there and this proved to be the antidepressant I enhance Brazil’s awareness of the so desperately needed. Within two issues at hand with this trade. weeks I was getting feedback from the Offers from overseas countries are International Maritime Organization growing, more launching of cam- paigns, more lecturing on awareness to

The Whistle, #93, January 2018 5

WBA conference

WBA’s annual conference and AGM Banking and I represent bank workers and they were held at the Uniting Church tell us that they are pressured not to Convention Centre, North Parramatta, whistleblowing rock the boat by calling out unethical Sydney on 18–19 November 2017. Julia Angrisano or unlawful behaviour. While all em- WBA President Cynthia Kardell intro- ployers have whistleblower policies in duced each of the speakers; her Cynthia’s introduction place workers are afraid to access remarks are reproduced here. For the Julia Angrisano was appointed Na- the policies because of pressure from other speakers, you can read notes on tional Secretary of the Finance Sector management. the spoken presentations or edited Union (FSU) in 2016 after spending Members have reported instances: versions of their documents. more than 17 years working in the finance sector to improve working 1. where they have been warned by conditions in the sector. One of the managers not to report unethical Conference highlights of Julia’s career is the recent behaviour Saturday 18 November decision by the Commonwealth Bank 2. when they have been directed to 9:00 Welcome: Cynthia Kardell to back pay unpaid superannuation to undertake unethical actions 9:15 Julia Angrisano, National part time workers who worked addi- 3. of being subjected to onerous Secretary, Finance Sector Union tional hours over the last decade. procedures after speaking out about 9:55 Richard Gates, Public advocacy Julia’s vision is for a more equitable unlawful activity. finance industry, that no longer has an in a small community The internal systems and policies 10:35 Morning tea enormous gender pay gap and that provides women workers with retire- within the finance industry are not 11:05 Robert Tierney, Pathway to sufficient to encourage an employee to survival ment savings that are more reflective of those of their male colleagues. Julia come forward as a whistleblower. 11:45 David Carruthers, Community Reading bank policies is like poetry. leader stands up to property holds a Bachelor of Arts (Political Economy) from the University of Syd- The gap between the rhetoric and developers and political sponsors reality of these policies is significant. 12:25 Lunch ney and is involved in the Australian Council of Trade Unions’ mentoring It is not a coincidence that the 1:45 Kim Kirsner, Never but never be number of scandals involving poor a bystander program. advice and customer exploitation has 2:25 Margaret Banas, Good policy increased as remuneration and man- gone terribly wrong agement systems designed to exploit 3:05 Afternoon tea customer interaction have become 3:35 Larry Vincent, Prosper doing more prevalent, seemingly following what you ought the guideline to “seek to exploit every 4.05 Donald Parkes, Doctored! A customer interaction as a sales oppor- university story tunity.” 4.45 A conversation with Cynthia Public trust and confidence in the Kardell Australian finance sector are essential to the efficient running of the econ- AGM and talks omy. Strong whistleblower laws are Sunday 19 November essential to rebuilding trust and confi- 9:00 Annual General Meeting dence after a long series of crises and 10:35 Morning tea scandals in the sector. 11:05 AGM, continued Let me tell you a short story about a 12:25 Lunch Julia Angrisano manager in the National Australia 1:45 Jeannie Berger, Woollies’ worst Bank (NAB). nightmare Julia’s talk 2:25 Lynn Simpson, An update [see As a trade unionist representing report on pages 4–6] workers across the finance industry, I 3:05 Afternoon tea have seen first hand the inadequacies 3:35 Raffles, jam and wine of a system that fails workers who ______speak up and speak out against unethi- cal behaviours or misconduct in their workplaces. And today I want to share with you our experiences and thoughts A manager tells her story on how the system can be strengthened I worked at National Australia Bank so that whistleblowers have the pro- Financial Planning Division. My role was to manage four teams (20 staff) of tections they need. financial planners across NSW. This

The Whistle, #85, January 2016 7 was my first role that required me to jump in a taxi and head to North policies are meaningless. manage people; I faced many chal- Sydney. He was waiting for me at the [End of the manager’s story] lenges as I got to know the people that front of the building. He said we were reported to me as well as the other not going inside. We walked round the So how do we ensure that we have a managers, and notwithstanding some block and the manager said to me, “If better system? difficulties I worked hard to develop you know what’s good for you you’ll In April 2016, in an attempt to avoid good relationships with both my col- drop this, make it go away.” the scrutiny of a Royal Commission leagues and my direct reports. I jumped back in the cab feeling I and the planners who reported to really rattled by that conversation, into banks, the Australian Bankers me understood that there were high understanding that if I didn’t sweep it Association set up a program of re- expectations regarding the amount of under the carpet that my career was in form. Part of that reform package business that we were to generate. We jeopardy if I continued to pursue the looked at whistleblower policies and also understood that our ongoing matter of the planner’s conduct. developed a set of guiding principles employment would be determined by I went back to my desk and the that each bank needed to use to update our results. customers who had started to phone their whistleblower policies and proce- The first time that I noted that who were now under enormous finan- dures. It was focused on reaffirming normal bank processes were not being cial stress — some were going to lose support for employees who blew the followed in my area related to the their homes and it was for them that I review of client files. As the manager of had to act. whistle on inappropriate conduct. the four teams it was my role to review However, we are of the view that client files to ensure compliance with the guidelines and therefore bank bank policies. The process of selecting policy didn’t go far enough. They were the files was meant to involve me more about the process of blowing the selecting the files for review. whistle — and not enough about the As I began the process of identifying protection of whistleblowers. the files for review, the Senior Financial Our members tell us that a big issue Planner informed me that he would be for them is that there isn’t enough selecting the files that I would be reviewing. Whilst I didn’t agree with his protection for whistleblowers in terms decision, I decided not to rock the boat During the investigation I discovered knowing what happens after they blow as he was an experienced and that the form with my signature (that the whistle. They feel like they have a respected financial planner. had been photocopied and used multi- target on their back just waiting for Over the next 6 to 8 months, as I ple times) was a blank form that I had some retribution. became more experienced, I was able signed for a planner. I realised then to select a number of files for review. that I had made a mistake and that I Whilst reviewing these files I found a should never have signed a blank form number of discrepancies and major for a planner. compliance issues. In my discussions with the bank I I raised these issues immediately acknowledged my mistake and ac- with my people leader and also the cepted the reprimand that was issued Head of Risk. by the bank in relation to my actions. Based on my report further file Despite the bank having examples reviews occurred (I was involved in of a planner using the form on multiple these reviews) with the intention of occasions and receiving feedback from determining whether there was a customers regarding the planner’s systemic problem. behaviour the bank took no action During these reviews I noticed a against that planner. FSU continues to hold reservations document (which had been signed by That meant that the outcome of the regarding the effectiveness of these investigation was to issue me with a me) had been photocopied numerous policies in practice with our experi- times and used in separate client reprimand for self-reporting a mistake interactions. This gave me cause for and to ignore the actions of the planner ences continuing to see that cultural concern because I had not signed each who used the form on multiple occa- alignment is required for these policies of these forms in relation to the sions in transactions with clients. to be effective and to encourage separate client outcomes; rather the I found this outcome to be in breach workers to speak up and speak out form had been photocopied (with my of the bank’s policies and its fiduciary where practices are considered cultural signature) and used multiple times obligations to customers and I stated norms but in fact jar with workers’ without my knowledge. this position to the bank. ethics and values. I informed my people leader, senior Despite continuing to raise the issue Put another way: when you are legal counsel and senior human re- with senior management and the fundamentally rotten, when your source officer that I found these signed bank’s legal counsel, the planner’s documents. behaviour was neither investigated nor culture is bad — profit first, customer At this time I was also being con- sanctioned. In fact he was paid money and everything else second — a new tacted by customers complaining about to leave the bank. policy won’t fix it. It just sets up the their financial planner and in some My experience demonstrated to me whistleblower for failure because they cases these customers had suffered a that an institution can have all of the walk into a process that can never financial loss. right policies in place but if the people protect them. They walk into a trap and I soon received a call from a very in charge are not willing to listen and in some cases they are sacked. senior manager and he asked me to act on information received then those

8 The Whistle, #93, January 2018

Parliamentary committee processed without resorting to legalis- In order to continue our advocacy we tic procedures. used the recent Parliamentary Joint Banks and other corporations can Committee on Corporations and Fi- and should do better in the treatment of nancial Services established to review whistleblowers and compensation whistleblower protections where we should be a last resort. If we make it focused on these points: culturally safe to blow the whistle then we won’t need to compensate workers 1. The types of wrongdoing to which a but until we reach that point we need He was terminated by the Common- comprehensive whistleblower protec- some compensation. In our industry we wealth Bank. They said the reason was tion regime for the corporate, public know of two very high profile whistle- not because he spoke out about the and not-for-profit sectors should blowers who lost their jobs. systems/process and behaviours all apply. Jeff Morris exposed misconduct designed to avoid paying legitimate within the Commonwealth Bank’s claims but because he sent bank docu- The FSU believes that the laws financial planning division. I read his ments to his personal email — the very governing whistleblowing within the submission to this inquiry and it made same documents he needed to blow the finance sector should cover not just me very sad and but also angry. The whistle. activity that covers breaches of impact on his life was tremendous. He Australian law or a code of practice came home one day to find that his 3. We need to ensure effective access but also behaviours and work systems wife had packed up the house and to justice — including legal service for too (as many of these behaviours taken the kids because it was too much any person who has made a disclosure encouraged in our industry are encour- for her. The bank took everything from and requires protection as a whistle- age and reward behaviours that are not him including his family. blower. A person accessing whistle- in the customer’s best interest). These blower protection should be entitled to behaviours would be considered un- free legal advice and support. ethical but do not currently breach Australian laws. We need independent regulatory and law enforcement agencies to 2. In terms of compensation arrange- ensure the proper protection of whis- ments in whistleblower legislation tleblowers. We support the idea of across different jurisdictions — we are establishing a Public Interest Disclo- in favour. sure Agency (PIDA) agency as an in- dependent body to receive disclosures, There should be compensation availa- Jeff Morris provide advice to whistleblowers and a ble for employees who use whistle- clearinghouse for initial investigations. blower protection to expose unethical Since going public in June 2013, Why? The FSU is concerned that behaviours and/or corporate miscon- Jeff Morris says he is contacted at least current whistleblower management duct and that compensation should be once a month by company insiders systems are too reliant upon the paid by the employer. This would act asking for advice about reporting whistleblower to report adverse activi- as a significant trigger to improve corporate misconduct. ties by their employer. corporate compliance with their own “When I explain the potential cost Given that adverse actions against a well written but poorly implemented to them: the loss of not just their job whistleblower can be subtle, the union whistleblower policies. but also their career, due to vindictive believes that once an employee ac- When determining the appropriate back channel smear campaigns; the cesses whistleblower protections the amount of compensation: lack of any effective protection or relevant agency should be proactive in compensation, let alone rewards, most ensuring that the individual is not • Where an employee loses their walk away,” he says. “Many will say disadvantaged, and where the agency employment, the compensation they can’t justify doing that to their is an internal one that they should be should at least equate to the family.” held accountable where the individual employee’s annual salary. Corporate Australia is littered with is disadvantaged. • Where the employee can demon- whistleblowers who take on enormous I said adverse actions can be subtle, strate a financial disadvantage as a risk for no personal gain, in fact to but not always. Right now we are result of acting as a whistleblower, their great detriment. supporting a bank worker. He con- the compensation should at least Dr Koh, the Chief Medical Officer tacted the speak-out line about reimburse the employee’s loss. of Comminsure, blew the whistle on breaches of policy and a risk which • The calculation of loss should outdated definitions of a heart attack. would expose the bank. As a result, his include future potential earnings. local management isolated him. They moved him out of his team, placed him The compensation scheme should be in a new team on another floor — in independently administered and claims fact he had no access to technology for should be able to be made and weeks — and then put him on special

The Whistle, #93, January 2018 9 leave while they engaged an investi- Australia’s whistleblower protec- retirement to the North Coast of NSW, gator to look into the things he tions were an embarrassment within where he spent his childhood, he was claimed. We asked for the terms of the G20 forum and out of step with the Director of the MBA and professional reference for the investigation but we standards the community should ex- practice development programs at the never got them. But it was simply pect. Let’s fix that in 2018! University of New England. them fishing, trying to find something Richard has always been interested on him. He was on leave for months Questions from the audience in public advocacy, what can be done with no outcomes to the investigation. Lynn Are smaller banks better? to confront the problems facing society He was then sent for an independent Julia Perhaps generally, but a lot and the consequences of being an medical assessment. We didn’t see the depends on the particular bank man- advocate. brief note but we saw the medical ager. Inside banks, there should be In this talk today Richard speaks out report and it was loaded with bias. I advocates on behalf of whistleblowers. about some of the problems confront- don’t know where this will end up but ing the small coastal community in there is a high chance that his Feliks What about executive pay at the which lives, steps the community has employment with the bank will come Commonwealth Bank? Why shouldn’t taken to manage these problems some- to an end. information about problems be put to times at great personal cost including The union supports an independent shareholders? defamation and sometimes with suc- statutory body approach because we do Julia A question was posed at the cess, and the wider implications of not have confidence in the existing AGM: does executive pay send a what seemed to be simple matters at internal whistleblowing regimes in the signal to the rest of the organisation? the beginning. finance industry. We believe the ability However, a new culture was not able for employees (both current and for- to be brought in. Managers retire and Richard’s talk mer) to lodge their disclosures with an receive bonuses despite scandals in the Richard told of his experiences as a independent and external party will bank. The bank has put a lot of money citizen activist in a small community encourage more employees to report into public relations to prevent action countering the unscrupulous activities unlawful and unethical behaviours. at shareholder meetings. of developers who illegally cleared land and in various other ways harmed Ray A news article exposed the false the environment in their quest for claim that 80% of profits go to profit at the expense of the public customers. interest. Richard was one of a number Julia The article was published in The of locals who challenged these nefari- New Daily, supported by unions. ous activities. They found that gov- ernment regulators were weak and Question Xenophon? ineffectual, thus seeming to be on the Julia After Nick Xenophon leaves side of the developers. On the other federal parliament, the union will hand, creative stunts, connections with continue links with the Xenophon local media and efforts at community team. building were far more effective. Despite some wins, the struggle is Question Contractors? unending, as developers keep trying Julia Precarious work is something the illegitimate means to get their way. union is looking at. The trade union A full account of Richard’s talk is Conclusion movement has been under attack for not provided here. Instead, to give a The work we have done this year has years. This is hurting working people sense of the locale and issues, some of really exposed that the forces opposing and actually hurting the economy, even his slide images are reproduced. This whistleblowers are systematic. according to conservative international is followed by text, taken from two of What we have seen in banking over financial bodies. The union can’t do Richard’s slides, that summarises his the past few years is a series of much on its own. insights from years of experience in worrying scandals that have harmed campaigning. customers, employees and the standing of banks in the community. We rely on whistleblowers to Public advocacy in a expose unethical behaviour and corpo- small community rate misconduct when it occurs within Dr Richard Gates the financial services industry. 2017 has offered a glimmer of hope Cynthia’s introduction for potential whistleblowers that things Richard Gates is a neuroscientist with might finally be starting to change. We a background in neuropsychology and need a new set of laws and these are clinical practice and wide research being considered by the Parliament. interests from sleep disorders to human Part of the area Richard talked about resource management. Before his

10 The Whistle, #93, January 2018

Message 3 All three levels of govern- ment may not be acting in the public interest and may be captured by a particular interest group or discredited economic philosophy. The Senior Executive Service is often politicised in its decision-making. You cannot assume that government or business are the seat of all wisdom and knowledge.

Message 4 You can’t go past self- interest: follow the money.

Photos showing illegal clearing Message 5 Use the media and set up your own websites.

Message 6 While there are some pretty awful people about in high places, there are also some good folks who are only too happy to help anonymously. Good people who are pissed off will “leak.” Collecting an orange. Citizens studied local near-shore sea currents by Message 7 Courtesy costs nothing. releasing tagged oranges. When “Thank you” works well with most collected, these revealed the likely people. trajectory of effluent. Message 8 Follow the 24-hour rule — Effluent from a sewerage treatment wait a day before you reply — partic- plant was for years discharged into a ularly if you are angry. Instead, vent national park by writing down your feelings. If you lose your temper, apologise in a timely fashion if appropriate. Avoid all ad hominem remarks!

Message 9 Attend to personal relation- ships and your own psychological and physical health. Keep close people informed but don’t bore the pants off

Protest against ocean outfalls them! Be careful not to beat up on yourself. Because you are human, you So, what have we learned? are bound to make mistakes and be irrational from time to time. The environment in which we live is ever-changing and it is often hard to Message 10 Show your teeth only keep up to date, particularly with all occasionally to let them know you the legislative changes which are going mean business. This is the principle of Dead birds killed by effluent on in the background of which we are intermittent reinforcement. But re-

not aware. As Alvin Toffler said in his member the indelibility and potency of 1970 book Future Shock, many of us negative experience. Bad experiences will be overwhelmed. Expect the stick! unexpected. Sometimes it’s good!

Message 1 Build a network of people and sources, including technical folk, Pathway to survival who can help you to keep on top. Robert Tierney Remember they are not perfect and have their own lives. Cynthia’s introduction Robert trained as an air traffic con- Message 2 Pay attention to detail, and troller at the University of Tasmania persevere. Keep good records, includ- Protest against effluent pollution and started work with Air Services ing pictures and notes about meetings, Australia in 1991. In 1994 he froze press clippings, recordings, etc. with fear as a mid air incident unfolded on his screen, narrowly

The Whistle, #93, January 2018 11 avoiding a mid-air collision. Then a The fight continued for some years giving this talk at the WBA confer- number of close family members died afterwards with some air traffic ence. After 20 years of mainly silence and he suffered a breakdown. His boss controllers ringing me at home with due to real and imagined fears, speak- moved him to the compliance depart- their air safety concerns saying, “You ing and telling my story at this confer- ment, where he found some serious take it to the Minister as you have lost ence is very important to me as I move system failures and so began his life as everything anyway” or words to that towards resolution. a whistleblower, which almost fright- effect. Facing fear gives me self-respect. ened the very life out of him. Nearly I became an alcoholic while trying The treasure I seek is peace of mind. twenty years later, he is slowly coming to cope with the stress of the mid air to terms with his fears. incident, the ATC job itself and subse- quent whistleblowing. I have been Rob’s talk (an edited extract from sober for more than 20 years now but Standing up to property his notes) suffer from PTSD (post traumatic I am a 58-year-old highly eccentric stress disorder) and moderate to severe developers and their former air traffic controller. I worked chronic fatigue syndrome. political sponsors without incident to the satisfaction of My desired outcome from all this David Carruthers my employer until 29 October 1994 has always been an official investiga- when I dealt with a mid-air incident tion into the whole business of air Cynthia’s introduction west of Sydney. This incident started a traffic control with the aim of improv- David was a successful entrepreneur chain of events leading to a breakdown ing it resulting in greater safety for with a successful corporate career in June 1995. everyone who flies. Any investigation behind him. Nearly ten years after would need to be conducted by a non- taking on a billionaire developer in St Australian organisation with impecca- Kilda and later appearing as a whistle- ble credibility and competence and blower in a Victorian parliamentary without any political interference from inquiry, he is slowly picking up the Canberra. Hell will freeze over before pieces and starting again. this ever happens! He won the first round, but later, My story is ancient history but for when the Premier’s Chief of Staff me it was yesterday. Every time I have became the billionaire’s private com- tried to pull my story together I have pany CEO he realised for the first time, had a PTSD relapse requiring a month what he had been up against when he in hospital, with seven hospitalisations spoke out about the Government’s I returned to the Melbourne Air in 20 years. decision to hand over 12 Crown land Traffic Control (ATC) Centre in Whistleblowers sometimes commit sites to private developers in 2008. The March 1996 and was placed in opera- suicide. I know two who did. report from an 18 month Ombudsman's tional support. I began to discover The video I’m showing you today investigation into the local Council on what I felt were numerous dangerous was composed of segments from other the issue of the shopping centre and potentially fatal flaws in the ATC videos about air traffic control, drama- development resulted in almost the system. In April I rang the Bureau of tising the tensions of the job and the entire senior team leaving their Air Safety Investigation reporting nature of the job (including what is positions. hotline and reported all the air safety called a separation breakdown, when From late 2010, when the State problems as well as ringing Melbourne aeroplanes are closer to each other than Government changed and Matthew ATC Centre and advising the team the required distance). My experience Guy became planning minister, a leaders of the worst problems. The was with a separation breakdown series of events took place involving more I dug the more safety risks I during which I froze due to fear. I still 2–3 allegedly corrupt Council planning discovered. have nightmares about it. officers, gangsters and top-end-of- After 15 months of fighting to get town players in what David believes to my air safety concerns fixed, I re- be a carefully orchestrated plan to signed from Air Services Australia on discredit and destroy his public 12 June 1997. Three days later I was opposition to over-development of St offered quite a bit more than $100,000 Kilda. Between 2011 and 2013 his by Civil Air, the ATC union, which physical and mental health were was in effect hush money. Acceptance literally destroyed, leading him to would have meant a 12-month psychi- consider taking his own life. His 5th atrist’s medical certificate deeming me hospitalisation in October 2013 was “mentally unwell” so Air Services the turning point for him not accepting Australia could say “See we told you being a victim and starting on a road to his Air Safety Report was the ranting recovery which has been for him, the of a lunatic.” I thought about the offer Part of my PTSD healing process most incredible journey. This is his for five minutes, declined and have was doing a sky-dive. Another was story. never been near the ATC Centre since. facing the media. Today’s step is

12 The Whistle, #93, January 2018

David’s story (in brief) his reputation was targeted by a profes- modus operandi. It is my contention David Carruthers was a successful sional PR firm, he lost his businesses that when a university abandons entrepreneur who represented his and therefore income and ability to procedural fairness and “convicts” a business community through being fight legally and his health took such a staff member on the basis of argument president of his local chamber of bad turn he was hospitalised five times advanced in secret by one party and commerce. He led a campaign which in 12 months and spent six months one party alone to a scientific, histori- exposed a $365m shopping centre wanting to take his own life. cal or ethical dispute, it has trans- development taking place on a Crown Not surprisingly he was diagnosed formed that university into a théâtre de Land beachside location that the with PTSD in 2015 and has spent the l'absurde! community believed to be low scale. last 2 to 3 years recovering his life. He later gave evidence at a Parlia- High profile top-end-of-town develop- mentary Inquiry investigating the ers, corrupt public servants and politi- Government of the day handing over cians and gangsters all played a role in 12 coastal Crown Land development this example of ruthless suppression of sites to private developers, the site dissent. David had originally protected being the planned precedent. He was later asked by his business community to Never, but never, form and lead a tourism association which David did and in the process, set be a bystander up a strategy to develop the areas of Kim Kirsner arts and culture heritage. Cynthia’s introduction Kim is currently an Adjunct Professor in the School of Medicine at the Uni- In 2004 I and my then seven-year versity Of Notre Dame (Fremantle). old daughter attended a staff meeting His professional career has spanned in the School of Psychology at the three continents with degrees in areas University of Western Australia, the as diverse as commerce, psychology aftermath of which included the only and social science. significant incident of bullying that I His talk today draws on his paper ever observed in 40 years in the entitled “Never, but never, be a tertiary sector. The Head of School His actions seemed to be against a bystander” in which he asks his readers (HOS) advanced down the full length hidden development agenda. David to consider whether the title of this of the staff room, shouting at and stood up too many times and became essay, should “be taken as an injunc- threatening a colleague for three or the target of an orchestrated campaign tion to always report bullying and more minutes. The threats were to negatively impact his multiple other forms of inappropriate behav- explicit and unambiguous, and in- businesses cash flows pushing him into iour, regardless of the personal cost, or cluded the phrase “One day you will serious ill health and decisions to sell should it be taken literally, as an want something from me and then …” significant property assets, resulting in instruction to avoid being a bystander, After a week of reflection, I submit- a stage-managed sale process as care- and never never report bullying or any ted an appropriate note to the relevant fully orchestrated and executed as other form of inappropriate behaviour? authorities. While my academic life Robert Redford’s The Sting. We’ll find out why and why he before the incident had proceeded proposes “that the Commonwealth without political colour, my life fol- create an agency designed specifically lowing the incident has been enriched to protect whistleblowers and the by extensive bullying, personal abuse, victims of bullying, and to achieve and institutionally-based mobbing, the these objectives by creating a national bane of academic life. Furthermore, review body to record and, when and despite my long record of publica- necessary, report on bullying and tion and doctoral supervision, the HOS predation incidents, across cases, declined to endorse my request for a targets, schools, campuses, universities part-time post-retirement contract for

and states.” It is an intriguing read and supervision and teaching (a request In 2013 David was expected to die. one I commend to you: a copy is that was triggered by a bout of pneu- He has fought to regain his health and available outside. monia incurred six months after the to continue to stand up for others bullying report), and an action that through his involvement in other Kim’s talk should be seen in the context of 40%, organisations such as Transparency The issue here is the principle of 60% and 80% part-time contracts International and GetUp as well as his procedural fairness, and the departure granted to staff before or subsequent to membership of Liberty and WBA. He from that standard by one or more my retirement from full-time teaching. became an accidental whistleblower leading universities under their current and as a result, lost $10–12m of assets,

The Whistle, #93, January 2018 13

The “evolution” of natural justice diligent, thorough, bright, reasonable merits passing comment, and the and fair. Their story is long and witch-hunts of the 1640s provide an complicated (the judgement is about appropriate benchmark. Between 1645 100 pages long), but the judge under- and 1647, hundreds of witches were stood it well and could link all the discovered and drowned, burned or facts. (Margaret cannot say this about hung in and around Ely in Cambridge- their first barrister who represented shire by Matthew Hopkins, the famous Jozef during the trial.) Witch-Finder General. However, most Margaret is our public officer. if not all of the alleged witches were provided with the charges against them Margaret’s talk (a brief summary) and an opportunity to speak to those Margaret provided a blow-by-blow charges. account of Josef’s experiences working I recommend that university staff as an accountant in the NSW public desist from submitting reports of service. His position was made redun- In 2007 the HOS and the university bullying by managers until a manage- dant. He asked for a package but re-wrote history, reversing the tem- ment model is established that: (a) instead was told he would be kept on poral order of the alleged events and avoids conflict of interest between the because his skills were valuable. But endorsing the proposition that my university and the alleged manager- positions weren’t provided as promised bullying report was issued in retalia- perpetrator, and (b) provides an and he was left without work. The rest tion for the HOS’ refusal to provide opportunity for the alleged perpetrator of the story concerns the ridiculous financial support for part-time work to respond to the charges, whatever bureaucratic machinations about rede- following retirement. I didn’t know they are. ployment within the NSW public about this reinterpretation until 2015. service, compensation, referral for The HOS was subsequently re-classi- medical assessments and all sorts of fied as a clean-skin, promoted to full other procedures. It ended up costing professor, and appointed to the the NSW government more than position of dean at another university. $500,000, including legal costs, when The bullying saga did not end there it could have been resolved by about however. Following a series of angry $20,000 initially (the approximate displays in his new school, the HOS value of the redundancy package). was placed under administrative review until, finally, he lost control again, and left in a cloud, without a contract at any university! Prosper doing The UWA regulations include what you ought explicit encouragement to report Larry Vincent bullying along with the following rider: that the university retains Jozef’s story — Cynthia’s introduction “responsibility for pursuing the matter Larry describes himself “as a serial with the respondent, and there is no good policy gone whistleblower, who with good friends obligation to inform the complainant terribly wrong and family and with the ability to of the course of management.” Secret Margaret Banas transition careers has enjoyed a good and one-sided court proceedings “lit” life – no regrets. He has a Bachelor of the byways to the darkest corners of Cynthia’s introduction Arts, Graduate Certificate in Manage- European history. I raised the proce- Margaret is telling her husband’s story, ment, Cert 4 Project Management, Cert dural issue with the then Chief Scien- because English, their second lan- 4 Property Management, and an Inter- tist of Western Australia and, subse- guage, comes more easily to her than nal Auditor AS9000, and has worked quently, the Standing Committee on him. in the Finance, Education, Transport Public Administration of the Legisla- Jozef didn’t start out being a and Property sectors. He retired from tive Council of WA, and, in effect, whistleblower, although he was treated the workforce in 2016 to pursue his they endorsed the apparent lack of like one when things turned nasty, but interests in Human Rights and Refu- procedural fairness. The principles of the Banas team won out in the long gees issues. He is currently an active natural justice outlined by the run. Margaret puts it down to the fact member of several local and interna- Commonwealth Human Rights Com- they supported each other and to the tional organisations. mission are clearly of no interest to long nights she spent at the computer Larry explains why he believes we these parties. Staff no longer enjoy examining related legislation and court should try to prosper doing what we either “the right to be heard” or “the judgements and later, sharing some of ought. opportunity to put (their) case her findings with their lawyers. forward.” Also, that they were lucky that the judge who decided their case was

14 The Whistle, #93, January 2018

Larry’s talk (adapted from his • The wholly owned subsidiary closed slides) and property trust products were I identify as a serial whistleblower exposed over the decades. My aim today is to • Returned to Sydney, contacted distil the skills and techniques useful friends to obtain a job — contracted to over the years for being a whistle- Australian Business blower. To begin, the foundation is being ethical. We ask ethical questions whenever we think about how we should act. Being ethical is a part of what defines us as human beings. Case study 1: Australian Taxation It’s in a person’s makeup to feel Office, 1982 comfortable being a whistleblower. Larry found discrepancies in collection When people ask, “Why is it you?”, of overseas shipping tax. He reported it answer “It’s in my makeup. I do it all to his supervisor and then to the the time.” commissioner. He was promoted but Key factors in whistleblowing: cut off from action. Larry stands next to a sign that legal, family, friends (discuss it only wasn’t aimed at whistleblowers, with some), finances (you need but could have been reserves to take on a big issue), educa- • Found discrepancies in the collection tion (useful for making career transi- of Overseas Shipping Tax / 1982 Case study 3: Railcorp, 2006 tions), career. • Alerted next senior officer Corruption was rampant. The anti- • Told to ignore terrorist slogan “If you see something, • Said I would advise the Planning for acting ethically say something” is relevant to whistle- Commissioner • Legal: define the problem blowers. Larry met a journalist from • Went on holiday for 6 weeks • Family: assess the impact the Sydney Morning Herald at Central • Re-located and promoted on return • Friends: determine who is in and who Railway Station. The journalist was • Cut off from further action, stayed on is out worried. Security guards circled them to 1985 • Financial: how much money have during their time. Larry provided guid- you got? ance for obtaining a revealing photo. • Educational: can you change jobs Case study 2: Colonial Mutual Life Larry was recruited on a 3-month easily through retraining? Assurance Society, 1990 renewable contract. The modus op- • Career planning: how you thought Larry was national sales training erandi was to compromise a new em- about what next? manager in Melbourne, with a nice job ployee, who then would be beholden to and salary. He raised concerns to the corrupt operators. He was put

senior management about property under the authority of a corrupt figure. In any situation, it’s important to trust products. He sought advice from He eventually submitted his own define the problem. Assess the impact friends, solicitors and communications internal audit report. He went to his on your family: the stand you take specialists. He then went to The local member, who wrote to the could turn up on the front page of the Financial Review. The editor offered minister, Watkins, who didn’t reply. newspaper, and be all over social protection if he was sued. Larry Larry met Linton Besser of the Sydney media. resigned. The company management Morning Herald, who was looking for Re friends, determine who is in and contemplated taking legal action again people to speak out. Larry was the only who is out, namely those who will him but did not. The property trust one willing to be named in an article: support you and those who will freak products were exposed. Larry returned all the others on contracts were too out if you say you’re going to blow the to Sydney, contacted friends, got a job. afraid. whistle. Friends with skills can be very useful. Re finances, ask “How much money • As national sales training manager in • Recruited on a 3-month renewable have I got?” Melbourne, I was responsible for contract to manage the deployment of Ask “Can I change jobs easily financial planning license training contractors in the Major Projects through retraining?” If not, think again 1989–90 Division, RailCorp before speaking out. (Larry has worked • I discovered property trust products • Used 6Sigma and identified problem in finance, education, transport.) manipulation through a wholly owned • Transferred to Major Projects general Re career planning, ask “Have I subsidiary manager thought about what next?” • Challenged senior management • Contract terminated ASAP by Major • Sought advice: legal, Projects general manager communications, friends • Emails to managing director and • Went to The Financial Review; a internal audit with no response story was published; I resigned • Submitted my own internal audit report

The Whistle, #93, January 2018 15

Larry, after this, became sick, employers knew about my back- linked to the stress he had been under. ground. If you’re going to be engaged, He changed career again, to strata you need to be smart in doing it. Go management and then to building back to the six factors. management. His experience and studies enabled his switch. 18 months Roy What happened to those involved ago, he finished paid work and now is in corrupt dealings? engaged in voluntary actions, in human Larry I can live with myself. Can rights and support for asylum seekers, others? and is still writing letters and attending meetings and asking questions. No Richard I’ve suffered tampering with regrets. my car, and have been put at risk in other ways. When there’s a significant • No work for 5 months — very ill — criminal element, there’s a risk. changed career Larry Do the checklist. When I attend • Six months later, in 2007, I spoke to protests concerning refugees, I ensure my local member of parliament and that my involvement in the NSW responded to the Sydney Morning Council for Civil Liberties is known.

Herald • Twelve months later: investigation by the NSW Independent Commission Doctored! Don’s story: Brian’s brief summary Against Corruption and stories in the A university story Don, working at the University of Sydney Morning Herald Newcastle in the 1980s, had the Donald Parkes • 2008: managing director resigns misfortune of being the PhD supervi-

• RailCorp now dismantled after sor of Coral Bayley-Jones. Bayley- Cynthia’s introduction meeting with local member of Jones had studied at several universi- Don came to Australia in 1966, with parliament ties in Britain and Australia and caused wife Olga and 15 month old daughter. upsets wherever she went. She misrep- Olga has been a Member of WBA and resented her credentials, doctored data, Post Railcorp a contributor for ever it seems! enrolled at more than one institution at • Successful careers in strata manage- Don is a graduate of the University the same time for the same work, ment and building management of Durham UK with Honours in broke scholarship regulations, and • Engaged in voluntary action on Economics and Geography. He has an threatened academics. Don wrote a human rights, and on refugees and MA and a PhD from the University of long report opposing Bayley-Jones’ people seeking asylum Newcastle NSW and left the Univer- thesis being submitted, but his report sity in 1994 … we shall be hearing was ignored. Despite the University of Now why! Newcastle doctoral committee unani- • Active in writing letters and attend- He was Director of the Institute of mously recommending against award- ing meetings and still asking questions Behavioural Sciences (Newcastle) for ing Bayley-Jones a PhD, the degree • Happy that I acted. No regrets! 10 years including time in the Medical was given to her, plus a payment of School as Senior Research Fellow in $150,000, in a secret deal with Justice Questions the Blindness Ecology Research Unit Evatt, the Chancellor. Bayley-Jones David There’s such an amazing … we shall be told why if we ask! had serious personal problems, but the amount of corruption in government Don has held positions at British, university administrators, apparently in departments. What can WBA do to US and Japanese Universities and the face of threats, didn’t do the right push a message out to government or describes his past research and publi- thing in awarding her a degree. the electorate about what is going on in cation interests as being in the area of nearly every government department? human ecology, with a special focus Larry I’m in the NSW Council for on the way time shapes space and

Civil Liberties, Friends of the ABC, human behaviour. etc. There’s always more to be done. A Don published his own story in the Woollies’ big problem is the reduction in the form of a book titled Doctored! You worst nightmare number of investigative journalists. can buy it here today with the proceeds Schools do what they can. The answer Jeannie Berger to go to WBA or read it online at is education. www.bmartin.cc/dissent/documents/Pa [Jeannie’s talk will appear in the next rkes11.pdf issue of The Whistle.] Richard There was a previous report on corruption in NSW Railways that was embargoed by the university. Larry I’ve never had a really bad comeback due to speaking out. I was respected for being honest. My new

16 The Whistle, #93, January 2018

WBA AGM

Whistleblowers Australia 5. Election of office bearers lodgement fee, as provided by the Treasurer. Annual General Meeting 5(1) Position of president 19th November 2017 Cynthia Kardell, nominee for position Proposed: Richard Gates North Parramatta, Sydney NSW of national president, stood down for Seconded: Michael Cole Brian Martin to act as chair. Because Passed there were no other nominees, Cynthia was declared elected. 7. Treasurer’s Report: Feliks Perera

5(2) Other office bearer positions 7(1) Feliks tabled a financial statement (Cynthia resumed the chair.) for 12-month period ending 30 June The following, being the only nomi- 2017. A motion was put forward to nees, were declared elected. accept the financial statement.

Vice President: Brian Martin Moved: Feliks Perera Junior Vice President: Michael Cole Seconded: Richard Gates Treasurer: Feliks Perera Passed Secretary: Jeannie Berger 1. Meeting opened at 9.15am National Director: Margaret Love Feliks’ report

Meeting opened by Cynthia Kardell, 5(3) Ordinary committee members (6 Once again, it is my pleasure to present President. Minutes taken by Jeannie to you the accounts for the financial positions) th Berger, Secretary. Because there were no other nominees, year ending to 30 June 2017. the following were declared elected. Your Association recorded an 2. Attendees excess of expenditure over income of Cynthia Kardell, Jeannie Berger, Brian Robina Cosser $2,233.70 for the year, due to a small Martin, Feliks Perera, Katrina Stacey Higgins drop in membership fees, and the McLean, Michael Cole, Adam Bode, Toni Hoffman increase in the subsidy for the very David Carruthers, Lynn Simpson, Ken Katrina McLean successful annual conference of 2016. Smith, Rhonda Aubert, Rob Tierney, Lynn Simpson However, the donations from the Richard Gates, Adam Hadad, Bob Geoff Turner membership almost doubled and for Steele, Karen Burgess, Ross Sullivan, this I am grateful for the constant Tim Morrison. President Cynthia Kardell thanked all generosity of the members. of the committee for its good work. Currently, the financial status of the 3. Apologies She mentioned how Toni Hoffman Association is very good, and as at 30th Jane Cole, Margaret Love, Robina continues to field health-related June 2017, the association had no Cosser, Stacey Higgins, Toni inquiries, many years after the scandal outstanding creditors. The fixed Hoffman, Geoff Turner, Harry Albani, at the Bundaberg Hospital. Stacey deposit with the National Australia Lesley Killen, Ken Carroll, Carol Higgins continues to manage our Bank is steadily growing, in spite of Devine, Deborah Locke, Tom Facebook page. She also still receives the low rates of interest. Lonsdale, Greg McMahon, David inquiries about freedom of information I want to extend my thanks to the Reid, John Murray, Graham Schorer laws. Margaret Love also takes calls members who have so solidly and Alan Smith. from whistleblowers and Robina supported the work of Whistleblowers Cosser is constantly assisting teachers. Australia during the past year. Our 4. Previous Minutes, AGM 2016 membership needs to increase, and Cynthia Kardell referred to copies of 6. Public Officer again I look forward to the members to the draft minutes, published in the Margaret Banas has agreed to remain bring in at least one new member in January 2017 edition of The Whistle. the public officer. Cynthia asked the the coming year. Cynthia invited a motion that the meeting to acknowledge and thank minutes be accepted as a true and Margaret Banas for her continuing accurate record of the 2016 AGM. support and good work.

Proposed: Feliks Perera 6(1) Cynthia Kardell invited a motion Seconded: Lynn Simpson that the AGM nominates and Passed authorises Margaret Banas, the public officer, to complete and sign the 4(1). Business arising (nil) required submission of Form 12A to Fair Trading on behalf of the WBA hasn’t yet moved into money laundering organisation, together with the

The Whistle, #93, January 2018 17 ANNUAL ACCOUNTS TO YEAR 8. Other Reports before. Bystanders, they shouted ENDING 30 JUNE 2017 should have come forward. 8. (1) Cynthia Kardell, President INCOME DONATIONS $2415.00 This last year has been interesting. MEMBERSHIP FEES $2310.25 Two federal parliamentary reviews INTEREST ON FIXED have come together to make what is a DEPOSIT $367.27 truly groundbreaking discovery — that BANK INTEREST $4.03 the existing protection laws don’t TOTAL INCOME $5096.55 work, so we need a stand-alone whistleblower protection authority! It EXPENDITURE is refreshing even if it’s late, by about WHISTLE PRODUCTION $3520.86 25 years. The process for developing a

2016 CONFERENCE legislative response was the price for Harvey Weinstein was unable SUBSIDY $3479.42 crossbench support in the Senate for to attend the WBA AGM RETURN TO BRANCHES $250.00 another issue altogether. An expert WEB FEES $30.00 panel was convened in October, The government continues to resist ANNUAL RETURN FEES $44.00 including AJ Brown from Griffith crossbench calls for a federal integrity PAYPAL CHARGE $5.97 University, David Chalkin from the commission or anti-corruption TOTAL EXPENSES $7330.25 University of Sydney Business School commission although pressure is EXCESS OF EXPENDITURE and a number of private sector tax and building. The Northern Territory OVER INCOME ($2233.70) governance “experts” who to date government plans to legislate in early ------remain unknown. The committee is 2018, as does the ACT government. charged with establishing protections Former judge Anthony Whealy QC, for people who blow the whistle on tax who heads up Transparency BALANCE SHEET, 30 JUNE 2017 avoidance and breaches of ASIC and International, has joined with former ACCUMULATED FUND APRA rules. These moves could be the justices working with the think tank B/FORWARD FROM 2016 $21120.32 harbinger of real change, but the cynic Australia Institute, saying it’s LESS EXCESS in me says any outcome is only likely inevitable — that we have to have a OF EXPENDITURE OVER to form the basis of a Coalition federal integrity commission that can INCOME -($2233.70) election promise next year. investigate political rorts. SUNDRY ACCRUALS Note, we made submissions to the We have called on the Northern FOR 2017-2018 $170.00 Victorian and Northern Territory Territory and Queensland governments TOTAL $19056.62 inquiries and both federal reviews. to legislate “shield laws” for They can be found on the relevant journalists, consistent with the federal ASSETS FIXED DEPOSIT websites. laws authored by former whistleblower WITH NATIONAL BANK $13837.97 The TV program Australian Andrew Wilkie MP, which have been BALANCE OF CURRENT Current Affair was quick to see it as an replicated in most states. If legislated, ACCOUNT $4618.65 opportunity to set up an online it would allow journalists to resist DEPOSIT FOR 2017 whistleblowing system in tandem with having to identify their sources in the CONFERENCE $600.00 a large law firm to “protect” public interest. employers’ reputations and We have soldiered on, thanks be to TOTAL $19056.62 whistleblowers. Spot the problem, all our committee members who’ve anyone? This is actually a replay of the dealt with inquiries from across the “accountability” products created for nation. Thanks too, to those who have sale by the big accounting firms like kept WBA’s administrative nuts and Deloittes back in the early 2000s. They bolts from rusting up. And I’m too, wanted our endorsement. gratified to know we’re still considered (Hopefully, it will do better than the to be a source for sound and impartial ill-fated scheme set up by the Western information in the face of building Australia Liberal party which pressure from those “fake news” encouraged whistleblowers to use their outlets. It is not unusual for me to pick secure drop box, leaving them open to up the phone to be met with a question, prosecution under existing public no name given and heartfelt thanks for sector laws.) the information. Often that person

WBA’s off-the-books cash reserves The Harvey Weistein allegations eventually rings back with the full opened up a veritable hornet’s nest of story, as if we already had a long, long sexual abuse claims going back acquaintance. I have realized it is a decades and not just about Weinstein, trust (in us) that we should treasure pushing the role of whistleblowing and build on. bystanders into the limelight like never

18 The Whistle, #93, January 2018 I’ve had the privilege of getting to changed from a physical PC in a home The Whistle continues to be know some wonderful new in Melbourne to a new location as a published four times a year. Various whistleblowers this year — most of virtual machine hosted in Sydney. This people send articles in to be published. them have remained out of sight and move took place in early 2017. Most Kim Sawyer often writes articles for safe from harm. So thanks everyone people probably didn’t notice at all, The Whistle. Members and non- for your trust in me. I look forward to but several things changed as a result. members are encouraged to send their 2018 in anticipation of a better result As it happens, this means Suburbia has story or other articles of interest to me. for whistleblowers and their supporters come back to its original home city — I am happy to work with you to everywhere. it started as a Linux PC in a home in improve your submission. Sydney. The web server became several 8. (5) Robina Cosser, Teacher & times faster than it was before, thanks Schools contact person to its new high-speed connection to the Robina sent apologies, however we internet and the fast computer on still received her report which was which it is now running. handed out to the members and read. Some changes were needed in the way in which our outgoing emails Reflections on getting our message were sent. These included the use of a across secure connection (TLS — transport This year I have been pondering the layer security). steady erosion of whistleblowers’ channels of communication with the One of the whistleblowers general public and even with our Cynthia met in 2017 fellow union members.

Union elections 8. (2) Jeannie Berger, Secretary Some years ago I ran in the Queensland Teachers’ Union elections. Memberships are steady. This year we At that time candidates were given a have 133 members. Cynthia continues free half-page advert in the union to send out The Whistle to a larger journal. It was an opportunity to raise group of people other than financial worrying issues. After that election members. All up approximately 200 One helpful side-effect of this is there were no more free adverts for Whistles get sent out. Primary goal is that when I am travelling I can still candidates in the union journal. to spread the word. send out emails for WBA without having to make various changes to settings to use the SMTP server of whatever provider I happen to be using for internet access. Instead, I can just send as usual. Another change was the administrators’ use of something called SPF (Sender Policy Framework). This is an anti-spam measure, though it has limited effectiveness. Some new settings were needed in the domain registry. 8. (3) Geoff Turner, Communications Some updates to the website will be coming soon. Geoff sent apologies, however he did send his report for the AGM which 8. (4) Brian Martin, International Jeannie read out: Liaison and editor of The Whistle Websites In 2004 I began my websites to raise I’m sorry I won’t be at the AGM in I keep in touch with other groups such issues of concern to Australian 2017, but I have two organisations as Whistleblowers UK and various US teachers. Somewhere around the end of running events on the same weekend organisations, but only sporadically. 2016 people began using mobile and I’ve been to all WBA’s AGMs in There is no international whistleblower phones more than computers, so the past few years, so I’ll be going to organisation that has done much to Google have changed the way they the other one this time. facilitate networking between WBA search the internet. Freewebs (my Several changes were made to and groups in other countries, so server) was sold late last year and the WBA’s email and web services during connections with whistleblowers and new owners seem to have had a lot of the past year. Our email and web host, supporters outside Australia occur only problems. Now my websites — my a computer known as Suburbia, was in an ad hoc way. huge historical collection of Australian

The Whistle, #93, January 2018 19 teachers’ experiences and opinions achieve-educational-excellence- (Alleged whistleblower policeman about their working conditions — australian-schools Rick Flori is also running as an seem to be steadily fading into Is it really worthwhile participating independent for the seat of Southport.) invisibility on the internet. in these government inquiries? Can we see them bringing about any real Facebook pages change for the better for Again this year, a NSW teacher’s whistleblowers in Australia? Or are carer, shocked by the workplace whistleblowers just being exercised, bullying that the teacher had allegedly like hamsters running round and round experienced, has set up a Facebook on a treadmill? page to protest the abuse https://www.facebook.com/Injured- NSW-Teachers-while-Working-for- DEC-or-DET-459081924160029/ (And, of course we also have the brilliant Whistleblowers Australia Facebook page

One of Robina’s invisible websites https://www.facebook.com/Whistleblo wers-Australia-Inc- Submissions to government inquiries 172621456093012/) Over the years I have written several submissions to government inquiries. Prompting union members to ask At one time submissions were questions published very shortly after being This year I have been prompting received — this meant that reporters readers of my website to question their QTU organisers about workplace could read them and discuss the contents. Now submissions are often bullying issues. I suspect this may been reasonably effective because I released after the publication of the In his submission to the Review of related report — so there is less public notice in a recent teacher’s journal that Tax and Corporate Whistleblower “some members have been raising interest in and discussion of the issues Protections in Australia, Peter Bennett raised in the individual submissions. issues” and members are advised to writes, “This review is simply attend local union meetings and to On 7 February 2017 I made a repeating a failed anticorruption submission to the Review of Tax and discuss these issues at the meetings. methodology”. The problem with this advice is, of Corporate Whistleblower Protections I think we have to look at new ways in Australia. By 6 October 2017, eight course, that it is very difficult to of being heard. discuss a workplace bullying issue at a months later, my submission had still not been published. local meeting because you run the risk Petitions I have discovered recently that the of defaming your school principal and This year one Australian teacher began submissions to this review have now other senior officers. And union a petition against workplace bullying. been very quietly published. meetings are not always female- https://www.change.org/p/petition- https://static.treasury.gov.au/uploads/si friendly or even classroom-teacher against-workplace-bullying tes/1/2017/10/c2016-t226331- friendly. recruiter=54016403&utm_campaign=s Robina_Cosser.pdf I’d be interested in other ways that ignature_receipt&utm_medium=email My submission to this review was WBA members are finding to make &utm_source=share_petition also considered and accepted as a their concerns known to fellow It seemed to be effective. Petitions “confidential” submission to the workers and the general public. are reasonably easy for one person to Inquiry into Whistleblowers organise and they provide an avenue Protections in the Corporate, Public 8. (6) Agenda items and motions for hundreds of people to tell their own and Not-for-profit sectors. By making (Previously notified) stories. And when you establish a link my submission “confidential” the None put forward. from a website to the petition, you can committee have ensured that no see that people are reading and re- mention of my submission will appear 8. (6i) AGM 2018 in Sydney reading the petition for months after it on their Federal government website. (Parramatta) on the 18 November. has been published. On 11 October 2017 I made a submission to the Review to Achieve 9. AGM closed 11:50AM Running for Parliament Educational Excellence in Australian Also this year, Queensland teacher Schools. My submission has not been Rob Wiltshire, the Indooroopilly State published to date. I have been advised High School asbestos whistleblower, is that it will be published “at the end of running as an independent for Cooper the review”. in the 2017 Queensland state elections: https://www.education.gov.au/review- https://robforcooper.wordpress.com/

20 The Whistle, #93, January 2018

Media watch

Whistleblower corruption was needed. public from the fallout if corruption is Fast forward to 2015. Sixteen years not exposed before it spreads. compensation into my career as a forensic accountant In October, the federal government is sorely needed and I was interviewing a minor player released the first of what will hopefully Matt Fehon in the centre of large corruption be a much wider program of legislative Sydney Morning Herald, scheme which ultimately led to seven reform aimed at encouraging corporate 12 December 2017, p. 23 executives being charged and con- and tax whistleblowers to speak out. victed. The draft legislation, which is cur- I WAS A TEENAGER working at rently before the Senate, aims to pro- Walton’s department store when, in tect whistleblowers who may expose 1986, one of Walton’s senior managers themselves to significant personal and discovered that the store’s new owners, financial risk. the Bond Corporation, had embarked The bill has received mixed reviews on a creative method of recognising with some proponents suggesting the revenue. proposed reforms are limited and in As he had repeatedly reported the some cases unworkable for many matter internally without a response, companies. the manager felt there was no other As part of the wider reform pro- Not benefitting from the scheme option but to report the transactions to gram, the federal government is ex- personally, but aware that the conduct the company’s external auditor. pected to review the recommendations of his executives was wrong, the The following morning he was from the parliamentary inquiry into employee said he had helped cover up greeted by this auditor and Alan Bond. whistleblowers, including the consid- their misconduct for fear of losing a And, just like that, this senior man- eration of a reward program and estab- job he had held for 12 years. ager’s 25-year career at Walton’s was lishing an independent Whistleblower Asked to co-operate and provide over. Protection Agency. evidence, the employee asked: “what is The auditor had told Bond, one of I largely agree with this report’s in it for me?” Australia’s most powerful business- recommendations, but I do not sub- The only honest answer I could give man, that this manager had blown the scribe to the “US bounty” style was: “nothing.” whistle. Eight months later, he left the payments for whistleblowers. Decades after the cops twigged that business. He was 51 years old. I was not surprised that this has not rewards were needed to solve crimes, found its way into the draft legislation. our corporate crime busters, the federal Still, some form of compensation police and the Australian Securities scheme is badly needed. The introduc- and Investments Commission, can tion of a Whistleblower Protection offer little to entice potential whistle- Agency with independent members blowers to risk their career to help and the inclusion of judicial experience expose corporate corruption. could help manage this, ensuring ap- Yet think of the benefits of expos- propriate compensation is delivered for ing corruption before it causes a major the loss of future earnings (rather then Controversial businessman Alan Bond. scandal. The impact on a company, its a US style cut of any penalty faced by Photo: Anthony Johnson AWJ employees and shareholders if this is the company). not done can be significant, causing Strong penalties for those that fail to This story stayed with me after I left major damage to reputation, share protect whistleblowers are also neces- Waltons and became a policeman. In price and company morale. sary to ensure corporate Australia 1992, while I was investigating a The impact can shudder through the takes notice. major drug syndicate, a whistleblower economy. Thousands of mum and dad The scheme should be designed to came forward providing important investors or policy holders were ad- protect the senior manager who blew details of the syndicate’s supplier. versely impacted by scandals involving the whistle at Waltons and to punish The whistleblower was registered as Enron, OneTel and HIH. those in the company who destroyed a confidential informant and in return Whistleblowers represent the innate his career. for his information, he was entitled to a part of the human spirit where there is For those wondering what happened monetary reward. value placed on doing the right thing. to this maligned whistleblower, after The cops, not known then for Society needs to protect these leaving Waltons he focussed on raising progressive thinking, had nevertheless people who often risk more than they his seven children. A whistleblower worked out that for a person to risk will ever gain by speaking out. scheme could have seen this man their safety or career to help catch a They represent the honest and de- prolong his professional career. bad guy, something more than the cent core of our community, often But my father told me that if he had warm, fuzzy feeling of helping expose protecting shareholders or the general his way again, he’d still have spoken

The Whistle, #93, January 2018 21

out. I don’t doubt him for a moment. Britain’s Official Secrets Act. The regime raises fresh concerns for Matt Fehon is a partner at prospective whistleblowers, journal- McGrathNicol. ists, and also mass leak publication sites such as WikiLeaks. A series of “aggravating” offences will also ham- Australia seeks new gag per large-scale leaks like those from former US National Security Agency laws that could see whistleblower Edward Snowden. journalists and Currently, a single offence under the Crimes Act prohibits disclosures of whistleblowers almost any information by Common- jailed for 20 years wealth officers. This has been roundly Paul Farrell criticised by news organisations and BuzzFeed, 11 December 2017 human rights groups, and the Austral- ian Law Reform Commission (ALRC) has recommended changes to curb the Organisations such as WikiLeaks The Australian government’s and disclosures from whistleblowers scope of information captured by the image of a whistleblower like Edward Snowden appear offence. A further “official secrets” to be the target. offence also potentially criminalises It lists an example of a set of any disclosure, although the threshold circumstances particularly similar to for this offence is high and it has been Snowden for the aggravating offence. rarely invoked. Under the proposed new regime, 1550. An example of this offence is both offences will be repealed entirely as follows. Person A is employed as and replaced by several new offences an IT systems administrator at a inserted into the Commonwealth Commonwealth Government Criminal Code. While a seven-year jail intelligence agency. In this role, sentence is the maximum available person A had access a large volume under the existing laws, this will be of highly classified information and throughout his employment Person Edward Snowden radically increased to up to 20 years A copied 1000 electronic files from (Brendan Mcdermid / Reuters) for the most serious aggravating in the the agency’s internal holdings to a proposed laws. personal hard drive. Over 100 of the AUSTRALIAN GOVERNMENT and intel- The new laws will apply to anyone, documents have a security ligence whistleblowers — and poten- not just government officials. They classification, including 20 that also tially even journalists — may face up could easily apply to journalists and bear one or more code words, and to 20 years in jail for disclosing classi- organisations like WikiLeaks that one document classified as TOP fied information, under the most “communicate” or “deal” with infor- SECRET. Person A publishes all 1000 sweeping changes to the country’s mation, instead of just government documents on the internet. secrecy laws since they were intro- officials. They will also close a duced. longstanding gap around contractors Journalists will have a defence The Australian prime minister working on behalf of government available to them if publication of Malcolm Turnbull has announced a agencies, who will also be subject to information is considered to be in the broad package of reforms aimed at the new offences. public interest and is “in the person’s curbing foreign interference from The bill’s explanatory memorandum capacity as a journalist engaged in fair countries including China and Russia. highlights that it seeks to prevent the and accurate reporting.” The legislation was introduced by publication of almost any information However, they bear an evidential Turnbull in the House of Representa- from intelligence agencies, giving the burden for proving their conduct satis- tives immediately after marriage example of salary information of fies the defence. equality passed on Thursday evening, officers. No definition of journalist is pro- and the otherwise full House of Repre- “Even small amounts of such infor- vided in the bill, and it is unlikely to sentatives was emptied as celebrations mation could, when taken together capture organisations or individuals were underway. with other information, compromise who play a less traditional role in news While the reforms have been national security, regardless of the gathering, such as WikiLeaks, inde- flagged for many months, they were apparent sensitivity … For example, pendent bloggers, or intermediaries only introduced on the last sitting day even seemingly innocuous pieces of who pass information along to jour- of parliament this year, and go much information, such as the amount of nalists but are not the original source. further than previously believed. leave available to staff members or It places news organisations in the Unexpectedly, the reforms include their salary, can yield significant position of potentially having to justify sweeping changes to longstanding counterintelligence dividends to a their reporting in court if a prosecution secrecy laws, which are modelled on foreign intelligence service,” it said. is brought against them.

22 The Whistle, #93, January 2018

An aggravated offence will also be Australia’s interest, and certain infor- replace the offence for Commonwealth introduced that could see a journalist mation provided to government officers, it also preserves an almost or whistleblower jailed for up to 20 agencies. identical mirror provision. The basis years. Factors for this offence include This poses particular problems for this offence, according to the whether the information is classified as because of the overclassification of explanatory memorandum, is that it secret, if it is marked with a codeword, information within Australian govern- will take time to determine whether or if it involves the dissemination of ment agencies. Agencies such as the there is any separate information not more than five records with a security Immigration Department routinely covered by the new offences. classification. That classification could classify large amounts of information This means that the existing broad be as low as “protected,” a marking as “protected” or “confidential,” with regime that criminalises disclosures of used broadly across hundreds of no clear basis and limited systems of all criminal information will remain in Australian government agencies. review. place, and effectively be enhanced by This offence appears to be squarely It could even include, according to the proposed offences. targeted at curbing organisations like the explanatory memorandum, infor- Australia has faced criticism in the WikiLeaks that publish large caches of mation provided to the Australian Tax past for its hostility towards whistle- documents. It would also capture Office materials or Australian Securi- blowers. The UN’s special rapporteur whistleblowers like former NSA con- ties Investments Commission. for freedom of expression David Kaye tractor Edward Snowden. While the Further offences will also criminal- has previously warned that Australi- laws will not apply retrospectively, ise the communication or dealing with ans’ rights and freedoms are at risk of they are likely to render any future information that “causes harm to being “chipped away.” attempts by news organisations to Australia’s interests,” which won’t just These secrecy offences have previ- report on highly classified matters include information about law en- ously been used to target the sources of increasingly difficult. forcement operations but much broader Australian journalists. Australia’s types of information as well. This immigration department has referred includes a broad suite of information journalists’ stories about the immigra- about civil and criminal law enforce- tion detention regime on a number of ment that goes far beyond just law occasions for investigation by the enforcement and intelligence agencies. Australian Federal Police. The explanatory memorandum of The Australian Federal Police has in the bill acknowledges that this part of turn admitted to accessing journalists’ the new regime “goes beyond the phone and email records without a ALRC’s recommendation.” warrant in order to attempt to track “The inclusion of the concepts of down their sources. preventing, detecting, investigating, prosecuting and punishing Common- Contact Paul Farrell using the Signal wealth criminal offences and contra- secure messaging app on +61 457 262 172. ventions of Commonwealth civil

The Australian government’s penalty provisions is intended to image of a journalist reflect the fact that the effective enforcement of the law and the “Give me 10 minutes”: At first glance the proposed laws do maintenance of public order require appear to limit the type of information the undertaking of a wide range of How a whistleblower escaped that could lead to a prosecution of a activities,” it said. Saudi Arabia after uncovering journalist or a source. Several of the The definition of harming Aus- an alleged bribery offences are focused on protecting tralia’s interests is so expansive it scheme at Airbus “inherently harmful information”. could include disclosures that lessen Camilla Hodgson The explanatory memorandum of the cooperation of law enforcement, Business Insider Australia the bill mentions the confusion and cause “intangible damage” to Com- 1 November 2017 uncertainty around the application of monwealth and state relations, or cause the existing offences, and cites ap- a loss of confidence or trust in the Ian Foxley blew the whistle on what provingly the ALRC’s review into federal government. he claims was a multi-million-pound secrecy laws. Whistleblowers who make disclo- bribery scheme at Airbus in Saudi But the proposed regime goes sures to journalists or other individuals Arabia. After raising the alarm, substantially further than the ALRC’s may be able to gain protection under Foxley ran from an interview with recommendations to wind back and the Public Interest Disclosure scheme. his managing director and fled to a simplify the offences. However, that scheme strongly favours safe house. The Serious Fraud Office Conduct defined as “inherently internal disclosures and places sub- has been investigating Foxley’s harmful” is extremely expansive; it stantial barriers and risks for people claims of bribery at sub-contractors includes all security-classified infor- who are considering making external in Saudi Arabia. mation, information that would or disclosures. could reasonably cause harm to While the new regime purports to

The Whistle, #93, January 2018 23

systemic scheme at Airbus to bribe million [in “bought in services” pay- Saudi officials, which is now being ments],” he says. These unexplained investigated by the Serious Fraud payments, he alleges, were bribes for Office (SFO). Saudi officials. An Airbus spokesperson told After doing some digging — which Business Insider, “the UK’s SFO is included talking to the company’s conducting a formal investigation in former financial controller, a man he connection with aspects of the business says he’d been told was “mad” and of GPT Special Project Management who had previously tried to blow the Limited in Saudi Arabia which is a whistle — Foxley got hold of docu- local subsidiary of Airbus conducting ments he says prove a history of bribes business exclusively for the UK MoD. totalling millions of pounds, and sent We continue to fully and construc- them to a Ministry of Defence (MoD) tively engage with the SFO but in view Brigadier he knew in Riyadh. Ian Foxley of the investigation will not be Later that day he received a phone commenting further.” call from his managing director, who RETIRED ARMY OFFICER Ian Foxley called him into his office. The head of thought he had found his dream job HR, a Saudi princess, was also there. overseeing a £1.96 billion ($US2.6 The director, who knew Foxley had billion) contract for upgrading defence emailed the documents to the MoD, telecommunications in Riyadh, Saudi questioned his suspicions, and the Arabia. discussion grew heated. Instead, he uncovered what he According to Foxley, the director believed was evidence of a multi- then threatened to have him arrested million-pound bribery scheme, and for theft of confidential information. tried to blow the whistle. Threatened “Things started getting nasty” “I thought to myself, ‘you’re with arrest after he angered a Saudi At a meeting with Business Insider in stuffed,’ because if a Saudi princess princess, he decided to flee the country central London recently, Foxley was rings the police here and accuses you rather than take his chances inside a smartly dressed in a navy suit, and of theft, you’ve got no get-out, you’re Saudi jail. carrying a camouflage-pattern um- dead in the water,” he says. So he said, Foxley served in the British Army brella, a nod to his military past. “this conversation isn’t going any- for 24 years, before moving to tele- Not long after starting work in where,” and walked out. communications in the private sector. Saudi Arabia, he says he came across a Foxley describes swiping through In 2010, he found a job advert in the large payment for “bought in services” secure doors at the military base with Sunday Times for an operations direc- in the first major GPT project he was his key card, the director shouting at tor at defence contractor GPT (now required to sign off. him from behind. When he finally got Airbus), and in June of that year He was told these were outsourced outside he called the Brigadier, who touched down in Saudi Arabia to start services, but the cost was £1.6 million, sent out a military vehicle to collect work on a 10-year project for the Saudi more than that of the prime contrac- him. Arabian National Guard. Foxley be- tor’s fee. Across the total £1.96 billion came the programme director on a contract, he says, “bought in services” The James Bond-style escape from project to modernise communications accounted for 16% of the costs, mak- Saudi Arabia for the Saudi Arabian National Guard. ing them his biggest sub-contractor “This is where things get a bit James The UK Ministry of Defence won the “by volume of payment.” Bond-y,” he smiles. contract to perform the work and used This mystery contractor, he remem- Having collected some essentials GPT to fulfil the contract. The bers thinking, was “not giving me any from his house — which was “effec- National Guard was the end user. service. They’re not giving me any tively like a luxurious penitentiary” — Having worked in the private and product. I’ve never seen them, I’ve Foxley bumped into a colleague who’d public sectors, built two fibre-optic never met any of them, I’ve never even been sent out as part of a group to look networks, and an intranet, he says, he heard of them.” for him. Luckily, he says, the man was confident there was “nothing in This was his “‘oh shit’ moment,” he owed him a favour. “I said, give me 10 this project I didn’t know about.” says. He started asking questions, and minutes. And that was enough time for But Foxley soon discovered he was “things started getting nasty.” me to get out of the compound and the third director in six months — and Foxley says he now suspects there lose the tail.” by December, he too was gone. Not were sub-contractor fees hidden in Foxley was taken to a safe house, long after he arrived, he says, “things every project in GPT contracts going and an army Colonel drove him to the started building in a kind of adversarial back to 1978. He estimates the con- airport later that night. As they said way, because things didn’t smell tracts’ overall worth since then at goodbye at passport control, the Colo- right.” around £5 billion: “if you tot up 16% nel said, “if they have put a stop and This is the story of how Foxley of £5 billion, you should be looking hold [on your passport] they will grab uncovered what he claims was a for something in the region of £750 you here. I’ll go up onto the platform

24 The Whistle, #93, January 2018

and I’ll watch. My first call is to the Sam Adams Associates: Julian Assange of WikiLeaks fame, Ambassador, my second is to the have also received recognition. Sey- Brigadier. Good luck.” a unique club mour Hersh is the first mainstream Foxley steeled himself, presented Annie Machon journalist to receive the accolade. his passport, and was let through. He RT News, 30 September 2017 Hersh has a long and illustrious waited until the plane was clear of career, beginning with his exposure of Riyadh, then ordered a large whiskey the My Lai massacre in the Vietnam and “collapsed.” war in 1969. It was an article he wrote Back in the UK, he spent a few days about the April 2017 chemical attack writing a report of his findings, which in Syria that won him the award this he sent to two “trusted sources” in year. 2010, with instructions to send it To remind people, on 4 April this straight to the SFO if anything year a chemical weapon was report-

“happened to him,” noting, “I’m not © Ann Wright / Facebook edly used against the civilian popula- suicidal, by the way.” tion of Idlib Province in Syria and Foxley’s report is currently sitting SINCE 2002 the unique Sam Adams civilians were reportedly killed. Ahead with the infamously slow SFO, which Award for Integrity in Intelligence has of any possible investigation, the in- only began an investigation last year been given annually in either the US or ternational media unilaterally declared into possible fraud, bribery and Europe. This year the awards took that the Assad regime had attacked its corruption at Airbus. No charges have place in Washington DC, and the prize own people; President Trump immedi- yet been brought, but Foxley expects went to veteran journalist and Pulitzer ately ordered a retaliatory strike on the action to be taken in the next six Prize-winning journalist Seymour Syrian Air Force base from where the months, before SFO Director David Hersh. alleged attackers launched their fighter Green retires in April. Why unique? Well, the group jets and was lauded by the military- Whether charges are brought, comprising the Sam Adams Associates industrial complex for firm and deci- against whom and for what crimes, is made up of former Western intelli- sive action. remains to be seen. According to gence, military and diplomatic profes- Except — this was all based on a Foxley, an added complication is that sionals, many of whom have spoken lie, as Hersh established. However, the GPT/Airbus contracts, which are out about abuses and crimes commit- despite his journalistic reputation, he still active, must have been approved ted by their employers. For their pains, was unable to publish this story in the by someone senior within the MoD; most have lost their jobs, and some American mainstream media, and in- the original agreement was between have also lost their liberty. stead had it published in Germany’s the British and Saudi governments, Laureates include US army whistle- Die Welt. although it was GPT/Airbus that blower Chelsea Manning, NSA whis- The event in Washington this year carried out the work. tleblower Edward Snowden, FBI was a game of two halves – the first A MoD spokesperson said, “we whistleblower Coleen Rowley (Time was the dinner where Seymour Hersh understand that the SFO is conducting person of the year in 2002 and the first was presented with his award, lauded a criminal investigation into allega- SAA laureate), publisher Julian by both former intelligence profession- tions concerning GPT Special Project Assange, UK Ambassador Craig als and fellow investigative journalists Management and aspects of the Murray, and coordinator of the US for his work. It was recognition of the conduct of their business in Saudi National Intelligence Estimate on Iran value of true journalism — speaking Arabia. It would be inappropriate to in 2007, Dr. Tom Fingar. truth to power and attempting to hold comment while that is ongoing.” The common theme that binds this that power to account. The SFO declined to comment, disparate group together into a rather since the investigation is ongoing. weird, wonderful and very informal Foxley is adamant action must be global club is that they have all taken, in order to stamp out the notion attempted to shine a light on the dark that engaging in bribery is sometimes corners of government, to speak truth simply the “cost of doing business.” to power and expose wrongdoing and “How big do you have to be and “fake news” for the greater good of how big does the client have to be to humanity. It is appalling that they have get away with it?” he says, “is it to pay such a high personal price for Canadian government blocks Chelsea burglary or is it business?” doing this, which is why the Sam Manning visit, rejecting her application Adams Associates provides recogni- “on grounds of serious criminality” tion and presents its annual award — a candlestick, the “corner brightener.” The second half of the evening, which The Sam Adams Award has, in Mr. Hersh was unable to attend recent years, gone to bona fide whis- because of prior commitments, was the tleblowers such as Tom Drake, Bill more general annual SAA celebration Binney, Jess Raddack and Chelsea of all things truth-telling and whistle- Manning, while publishers, such as blowing. I had the honor of serving as

The Whistle, #93, January 2018 25 emcee of the event, which included a Whistleblower protections whistleblowers differently from what speech from Edward Snowden, Daniel they call leakers. According to the Ellsberg, SAA founder Ray McGovern in USA Liberty Act federal laws, government employees and many more. not enough who make protected disclosures to Between us all, we have decades of David Ruiz approved government officials are service and experience across different Electronic Frontier Foundation whistleblowers, and they have continents. Despite this geographical 17 October 2017 protections; employees who deliver spread, common themes continue to confidential information to newspapers emerge as they always do at Sam THE USA LIBERTY ACT fails to safe- are leakers. Leakers do not have Adams events: official obfuscation, guard whistleblowers—both as federal protections. spy spin, media control, illegal war and employees and contractors—because more. of a total lack of protection from What to do? We shall continue to criminal prosecution. These short- speak out in our work around the comings—which exist in other whis- world — I just hope that the awareness tleblower protection laws—shine a spreads about the fake news that is light on much-needed Espionage Act daily peddled in the mainstream media reform, a law that has been used to and that more people begin to look stifle anti-war speech and punish behind the headlines and search for the political dissent. truth of what is going on. Inside the recent House bill, which Whistleblowers, as well as their seeks reauthorization for a massive enablers in the publishing and media government surveillance tool, authors Extending these whistleblower world, remain the regulators of last have extended whistleblower protec- protections to contractors—while resort for truth and for justice. tions to contract employees, a group positive—is just an extension of the that, today, has no such protection. incomplete protections our federal The Liberty Act attempts to bring employees currently receive. And, as parity between intelligence community written, the Liberty Act only protects employees and contract employees by contract employees from retaliation amending Section 1104 of the National made by the government agency they Security Act of 1947. contract with, not their direct According to the act, employees for employer. Contract employees work the CIA, NSA, Defense Intelligence directly for private companies—like Agency, Office of the Director of Lockheed Martin—that have contracts National Intelligence, National Geo- with the federal government for spatial-Intelligence Agency, and specific projects. The available data is Annie Machon is a former intelligence National Reconnaissance Office are unclear, but a 2010 investigation by officer for MI5, the UK Security Service, protected from certain types of The Washington Post revealed that who, with her ex-partner David Shayler, employer retaliation when reporting “1,931 private companies work on resigned in the late 1990s to blow the programs related to counterterrorism, whistle on the spies’ incompetence and evidence of “a violation of any federal homeland security and intelligence in crimes. Drawing on her varied experi- law, rule, or regulation,” or “misman- ences, she is now a public speaker, agement, a gross waste of funds, an about 10,000 locations across the writer, media pundit, international tour abuse of authority, or a substantial and United States.” and event organiser, political cam- specific danger to public health or The problems continue. Currently, paigner and PR consultant. She has a safety.” Employees working at agen- the Liberty Act, and Section 1104, do rare perspective both on the inner cies the President deems have a “pri- not specify how whistleblower protec- workings of governments, intelligence mary function” of conducting foreign tion is enforced. agencies and the media, as well as the intelligence or counterintelligence are Let’s say a contractor with Booz wider implications for the need for in- Allen Hamilton—the same contracting creased openness and accountability in also covered by these protections. agency Edward Snowden briefly both public and private sectors. Employees can’t be fired. Employ- ees can’t be demoted. They can’t worked for when he confirmed wide- receive lower pay or benefits or be spread government surveillance to The

reassigned. And no “personnel ac- Guardian in 2013—believes she has tions” whatsoever can be ordered, found evidence of an abuse of author- actually, meaning no promotions or ity. According to the Liberty Act, she raises. can present that evidence to a select But employees are only protected number of individuals, which includes from retaliation in the workplace. Director of National Intelligence Entirely missing from Section 1104 of Daniel Coats, Acting Inspector Gen- the National Security Act of 1947 are eral of the Intelligence Community protections from criminal prosecution. Wayne Stone, and any of the combined That’s because the government treats 38 members of the House of Repre-

26 The Whistle, #93, January 2018

sentatives Permanent Select Commit- be illegal, such as discussing classi- the requests — taxpayers, government tee on Intelligence and the U.S. Senate fied information in unclassified watchdogs and journalists who must Select Committee on Intelligence. settings. then pursue the records in court at their And, according to the Liberty Act, she own expense. will be protected from agency em- Whistleblower protections, present The lawsuits generally ask judges to ployer retaliation. in the National Security Act of 1947 rule that the records being sought do Maybe. and extended in the Liberty Act, are not have to be divulged. They name If the NSA still does fire the con- weakened by the U.S. government’s the requesters as defendants but do not tractor, the Liberty Act does not broad interpretation of the Espionage seek damage awards. Still, the recent explain how the contractor can fight Act. Though the law was intended to trend has alarmed freedom-of- back. There is no mention of appeals. stop spies and potential state sabotage, information advocates, who say it’s There are no instructions for filing it has been used to buttress McCarthy- becoming a new way for governments complaints. The bill—and the original ism and to sentence a former Presiden- to hide information, delay disclosure National Security Act of 1947—has no tial candidate to 10 years in prison. and intimidate critics. bite. Today, it is used to charge individuals “This practice essentially says to a The Liberty Act makes a good show who bring confidential information to records requester, ‘File a request at of extending whistleblower protections newspapers and publishing platforms. your peril,’” said University of Kansas to a separate—and steadily growing— Whistleblower protections to the journalism professor Jonathan Peters, class of employee. But the protections entire intelligence community are who wrote about the issue for the themselves are lacking. Contractors lacking. Instead of treating contractors Columbia Journalism Review in 2015, who offer confidential information to the same, contractors should—together before several more cases were filed. the press—like Reality Winner, who with employees—be treated better. “These lawsuits are an absurd practice allegedly sent classified information to Improve whistleblower protections. and noxious to open government.” The Intercept—are still vulnerable Reform the Espionage Act. Government officials who have under a World War I era law called employed the tactic insist they are The Espionage Act. acting in good faith. They say it’s best to have courts determine whether records should be released when legal obligations are unclear — for instance, when the documents may be shielded by an exemption or privacy laws. At least two recent cases have succeeded in blocking information while many others have only delayed

the release. Governments turn tables State freedom-of-information laws by suing public generally allow requesters who believe they are wrongly denied records to file records requesters lawsuits seeking to force their release. Ryan J. Foley If they succeed, government agencies ABC News (US), 17 September 2017 Reality Winner can be ordered to pay their legal fees

and court costs. AN OREGON PARENT wanted details As we wrote, the Espionage Act has Suing the requesters flips the script: about school employees getting paid to a history mired in xenophobia, with an even if agencies are ultimately stay home. A retired educator sought ever-changing set of justifications for required to make the records public, data about student performance in its use. University of Texas School of they typically will not have to pay the Louisiana. And college journalists in Law professor Stephen Vladeck other side’s legal bills. Kentucky requested documents about lambasted the law in a 2016 opinion “You can lose even when you win,” the investigations of employees ac- piece for The New York Daily News: said Mike Deshotels, an education cused of sexual misconduct. watchdog who was sued by the Louisi- Instead, they got something else: Among many other shortcomings, ana Department of Education after sued by the agencies they had asked the Espionage Act’s vague provi- filing requests for school district for public records. sions fail to differentiate between enrollment data last year. “I’m stuck Government bodies are increasingly classical spying, leaking, and whis- with my legal fees just for defending turning the tables on citizens who seek tleblowing; are hopelessly over- my right to try to get these records.” public records that might be embar- broad in some of the conduct they The lawsuit argued that the data rassing or legally sensitive. Instead of prohibit (such as reading a newspa- could not be released under state and granting or denying their requests, a per story about leaked classified federal privacy laws and initially asked growing number of school districts, information); and fail to prohibit a the court to order Deshotels and an- municipalities and state agencies have fair amount of conduct that reason- other citizen requester to pay the filed lawsuits against people making able people might conclude should department’s legal fees and court costs.

The Whistle, #93, January 2018 27

The department released the data shouldn’t be happening anywhere in vailed in January when a judge months later after a judge ruled it the country.” blocked the release of records sought should be made public. As his bill remains pending in a by its student newspaper detailing the state Senate committee, Michigan investigation of a professor who State University filed a lawsuit May 1 resigned after being accused of against ESPN after the network groping students. requested police reports related to a The judge agreed with the univer- sexual assault investigation involving sity that the records would violate the football players. That and a number of privacy rights of students who were other cases are currently unfolding. victims even if their names were In April, the Portland, Oregon, redacted. school district filed a lawsuit against While that ruling is on appeal, parent Kim Sordyl, who is seeking Western Kentucky University filed a This 2017 illustration by Jack Ohman records about employees on leave for similar lawsuit against its paper, the with The Sacramento Bee shows a alleged misconduct after the disclosure College Heights Herald, which sought lawyer confronting a reporter, created that one psychologist had been off for records related to allegations of sexual to address public records access three years. Sordyl said she believes harassment and assault involving issues. (Jack Ohman/ The Sacramento Bee via AP) the information will expose costly employees. Several other state univer- missteps by district human resources sities released similar documents to the Deshotels, a 72-year-old retired officials and lawyers, and the district newspaper, and the state attorney teachers’ union official who authors attorney has already ordered the general has ruled that they are public the Louisiana Educator blog, had spent records to be released. records. $3,000 fighting the lawsuit by then. He “They are going to great lengths to “It’s not a good feeling knowing said the data ultimately helped show a protect themselves and their own that we are being sued,” said Herald widening achievement gap among the mismanagement. This is retaliation,” editor-in-chief Andrew Henderson, state’s poorest students, undercutting said Sordyl, who has hired an attorney. whose publication has been raising claims of progress by education “Most people would give up.” money to pay legal fees. “I just hope reformers. that something beneficial comes out of The lawsuits have been denounced all of this for everyone involved.” by some courts and policymakers. A New Jersey judge in 2015 said they were the “antithesis” of open-records The Targets policies and dismissed a case filed by a Sharyl Attkisson township against a person who re- extract from The Smear, 2017 quested police department surveillance video footage. JAMES TOMSHECK learned firsthand In Michigan, the state House voted how the government can exploit cozy 108–0 earlier this year in favor of a bill relationships with the press to help that would make it illegal for agencies destroy a target. He became victim of a to sue public records requesters. The smear after blowing the whistle inside proposal came in response to a U.S. Customs and Border Protection county’s lawsuit against a local news- (CBP) — an agency he insists is paper that had sought the personnel riddled with corruption. Tomsheck was files of two employees running for an ethics watchdog at CBP with the sheriff. A judge dismissed the lawsuit, title of Assistant Commissioner for saying the county had to approve or Internal Affairs. He tells me his deny the request. department’s anticorruption work was The documents, ultimately released Kim Sordyl (AP Photo/Don Ryan) extremely important. “I had been in days before the election, showed that Ryan) law enforcement in three different one of the candidates had been disci- A district spokesman said the lawsuit, agencies for forty years,” he explains. plined for carrying on an affair while which also names a journalist who “And at no point of it, thirty-one years on-duty in 2011. That candidate lost. requested similar information, amounts of which was in federal law enforce- The Michigan bill’s sponsor, Re- to an appeal “in an area of public ment, had I ever encountered anything publican Representative Klint Kesto, records law that we believe lacks approximating the level of corruption, called the tactic “a backdoor channel to clarity.” misconduct, and excessive use of delay and put pressure on the re- “When this information is released force.” He says his troubles began in quester” that circumvents the state’s prematurely, the district’s position is 2009 when a man named David Freedom of Information Act. that the employees’ right to due Aguilar became deputy commissioner “Government shouldn’t file a law- process is jeopardized,” spokesman of the agency. suit and go on offense. Either approve Dave Northfield said. the request or deny it,” he said. “This The University of Kentucky pre-

28 The Whistle, #93, January 2018

consider doing it. Mr. Wong and I complex and its media partners when clearly understood that we were being they go after you. They can define who given an order to cook the books. you are. They can destroy you. When we returned to our offices and John Dodson got the same message looked at one another, we both had the when he, too, became a government same reaction, that we had been in a whistleblower in 2011. bad scene in a very bad movie.” (As I researched this account, Wong corroborated Tomsheck’s story. Agui- lar and the CBP declined comment.) When Tomsheck refused to cooper- ate with the alleged request to redefine corruption, he says, the assassination of his character began. Among other pressures, he received a lowered job evaluation. Eventually he was reas- signed out of Internal Affairs. And although he says he wasn’t provided the rationale for the reassignment, within hours somebody had anony- John Dodson mously given the press an explanation James Tomsheck designed to disparage him. It was a “You’re, in a sense, drowning false narrative that he’d been removed At that time, “there was a concerted where you can’t seem to find the for not being tough enough in cracking effort to obstruct the Office of Internal surface,” Dodson tells me of the down on use of excessive force at Affairs and restrict information that we massive smear campaign he withstood. CBP. were sharing with our colleagues and “It’s not just drowning; you’re trapped Tomsheck knew it was a smear. the FBI,” Tomsheck tells me, “and to in this cube of water and you don’t “There were media reports, that diminish the opportunities to work in a know which way is up, which way to surfaced hours after my assignment, fully cooperative and collaborative get out.” that I had been removed because I had way with other agencies.” Dodson, a special agent with the been insufficiently aggressive in deal- Matters came to a head in the sum- federal Bureau of Alcohol, Tobacco, ing with excessive-use-of-force issues, mer of 2010. Aguilar called Tomsheck Firearms and Explosives (ATF), blew and had failed to properly discipline and his deputy, James Wong, into a the whistle on ATF’s secret “Fast and Border Patrol agents,” he tells me. meeting and allegedly asked them to Furious” gunwalking program under “What do you think is the reason do something shocking. the Department of Justice (DOJ). you were removed?” I ask. “What we were told to do was Under Fast and Furious the govern- “I don’t think there’s any question ‘redefine corruption’ in a way that ment did the unthinkable: it allowed the reason I was removed was because would reduce the actual number of thousands of assault rifles and other of the aggressive posture that I and my corruption arrests” within CBP, weapons to be trafficked to Mexican colleagues had taken with regard to Tomsheck says. Apparently Aguilar drug cartels. Dodson was on the ATF corruption, misconduct, and aggressive wanted the current number of corrup- team that was required to execute the use of force.” tion arrests inside the agency, which case and watch idly as guns were I ask who he thinks leaked the false was on the north side of eighty, to look “walked” across the southern border. story to the press about why he was much smaller. He’d raised internal objections to the reassigned. He says there’s no doubt in “Mr. Aguilar actually took a sheet outrageous idea that federal agents like his mind it involved high-level of paper and wrote a number that was himself were forced to allow government officials. Tomsheck sued twenty-something,” Tomsheck alleges. traffickers to transport guns to cartel the government over his treatment and “He never actually turned it towards thugs. But his objections just got him received a settlement. us, but wrote the number taking up a labeled as a troublemaker. When a As he recounts his experience, full eight-and-a-half-by-eleven sheet of Border Patrol agent named Brian Terry Tomsheck speaks to me in a measured paper, and kept tapping it with his pen was murdered in Arizona near the tone, but I can sense the anger and as he was explaining how we would go border in late 2010 by illegal immi- frustration he’s suffered. He took pride about redefining corruption in a way to grants armed with some of the Fast and in his job as the ethics cop for Customs reduce the number of corruption Furious-trafficked weapons, Dodson and Border Protection, and he was arrests.” took steps to expose the government’s good at it. But those who wanted him “How would one do that — redefine ill-advised scheme. First, he quietly out of the way won the day. And they corruption?” I ask Tomsheck as he brought the facts to Senator Charles managed to use the press to drag his recounts his experiences. Grassley. Grassley asked the Justice name through the mud as they pushed “It couldn’t be done,” he answers, Department about the allegations. DOJ him out the door. It’s nearly impossi- “and more importantly, we wouldn’t responded in a letter dated February 4, ble to fight the heft of the government 2011: it categorically denied Dodson’s

The Whistle, #93, January 2018 29 claims. In essence, the Justice Depart- In my early days of reporting on the about me and our divorce. My ex was ment was calling Dodson a liar. case, I meet Dodson at his Arizona terrified. She didn’t know what to say “I was hugely taken aback by that,” home. “I want to show you some- and gave me the woman’s information. Dodson tells me today. “It was some- thing,” he says as he leads me outside I called her directly.” thing I never conceived of happening, to his vehicle, parked on the dusty “What did Eban say when you that DOJ would flat-out call me a liar shoulder of the road in front of his called?” I ask. in an official letter to Congress.” house. He points to tracks indicating “She said she thought I was a fasci- “I was prewarned,” Dodson contin- someone had been fiddling around nating in-depth central character. I told ues. He explains that a staffer in with it during the night. There are her I thought it was piss-poor journal- Senator Grassley’s office had tried to telltale smudges in the dust on the ex- ism for her to make her first call to my explain what he’d be up against as a terior, indicating, he believes, someone ex-wife. I demanded to know how she whistleblower against ATF and DOJ had come to remove a hidden tracking got [my ex-wife’s] name and phone leaders. “But even though I was device they’d placed earlier. “I know number and she wouldn’t tell me. prewarned, I was really surprised when this,” he says. “I do it for a living.” “I know it was a smear,” Dodson the government’s smear of me first Later, when forensics experts identi- continues in his opinion. He tells me started with the February 4, 2011, fied unauthorized remote intrusions that Senator Grassley’s office “had letter.” into my personal and CBS work pretty much already established thor- As an investigative reporter for CBS computers, they were able to see that oughly that the Fortune article was a News at the time, I connected with the intruders had viewed my Fast and hit piece sanctioned by DOJ and ATF Dodson for an exclusive television Furious–related documents and photos. to smear me. That was the sole news interview shortly after that letter Someone had even planted classified purpose.” was written. The resulting story on the documents on my CBS laptop. My Indeed, the Fortune article pub- CBS Evening News received interna- mind flashes back to Dodson. He’d lished in June 2012 incorrectly por- tional attention. It also spurred the said the government was trying to trays him — the whistleblower — as government to launch coordinated frame him as if he’d released classified the one who was running guns, efforts to publicly smear Dodson — information. Was that related to the motivated by anger and incompetence. and me, as the reporter pursuing the classified documents planted on my “The article was so bad that a joint uncomfortable truth. And government computer by unauthorized intruders? effort between Senator Grassley and operatives would ultimately use other At one point during the Fast and the House Oversight Committee took journalists to accomplish the smears. Furious scandal, someone inside the the time to go through and issue a “[Then-acting] ATF director government trying to destroy Dodson congressional report rebutting [the Kenneth Melson had a town hall leaked to the press a highly sensitive Fortune story] line by line,” says meeting at Baltimore field division document about his undercover work Dodson. “It was completely and utterly within days of the CBS interview,” at ATF — and the press published it. full of factual errors, not even in the says Dodson. “And when he was asked He says it put his life in danger. It was realm of reason.” The oversight about [the gunwalking] he simply told later revealed that the source of the committee demanded — but didn’t the entire Baltimore field division that improper leak was none other than receive — a retraction. The claims of I was a disgruntled employee, that I Obama’s US attorney for Arizona, Katherine Eban, the woman who wrote screwed up one case so badly that it Dennis Burke, who oversaw ATF’s the Fortune article, were also rebutted couldn’t get prosecuted.” In reality, Fast and Furious case. After Burke was by the findings of an investigation by Melson was not only well aware of the exposed as the leaker of the confiden- the Department of Justice inspector illicit gunwalking; he’d also remotely tial documents on Dodson, he was general. monitored some of the questionable forced to resign. After the article and the other firearms trafficking activities through a Dodson says the Obama administra- smears, Dodson had an uphill battle to live “pole cam” set up to feed video to tion’s effort to destroy him also in- rescue his reputation in the court of his computer in Washington, DC. Yet cluded assigning private investigators public opinion. Many in the news he was publicly denying any of it ever to dig up dirt on him, attempting to media continued to report incorrect happened. frame him for supposedly revealing talking points about Fast and Furious classified information, blowing his and Dodson — as provided by the undercover work, and — he believes Obama administration and its allies. — reading his personal email and Ultimately Dodson sued Fortune, listening in on his phone calls. But one alleging “the article is fictitious in the of the biggest smears against Dodson sense that it contains facts that was what I and many others viewed as Defendant knew to be false prior to a hit piece in Fortune magazine written publication” and that Eban “falsely by Katherine Eban. reported that [he] initiated gun walking “My ex-wife called me in December activity based on a grudge he had with [2011],” Dodson recalls. “She said that his superior.” Fortune eventually set- she had just been contacted by a tled Dodson’s case on confidential

Sharyl Attkisson reporter for Fortune magazine who terms and issued a “clarification” wanted to ask her some questions stating: “The article did not intend to

30 The Whistle, #93, January 2018

suggest that John Dodson or any other “It was a bad place to be. And I’ve jobs, and to live another day. ATF agent advocated a policy of been there on the threshold of losing Few wish to suffer a whistle- ‘walking guns,’ and any inference to everything and smeared and com- blower’s fate which includes being the contrary is incorrect.” pletely cast out. And I know the fear shamed, demonized, ostracized, fired, For Dodson, the professional and and stress and panic. I was so stressed and being prevented from working at personal toll of his whistleblowing and out I literally grew a hump from just that factory, in that city, in the same the subsequent smears was immeasur- the knotted-up muscle tissue on my profession. able. On any given day, he didn’t left shoulder. I’m better mentally and Some whistle-blowers are forced know if he would be followed, fired, or emotionally than before I blew the into exile. arrested. “The DOJ tried to indict me whistle, but professionally, my career In 1977, Christoph Meili exposed at one point [on false charges],” he is in the toilet. I’m a lot better today the Swiss bank where he worked for says. but I’m disenfranchised about the destroying the records of Holocaust As the target of a smear, “you want government and our system.” survivors. He fled his country and to set the record straight,” Dodson tells received political asylum in the United me. But nobody wants to believe. “Part Sharyl Attkisson, The Smear: How States. of it pissed me off. How dare they call Shady Political Operatives and Fake Some whistleblowers are murdered. me a liar? How dare they say this when News Control What You See, What You In 2015, Argentinian prosecutor I know I’m right, telling the truth and Think, and How You Vote (New York: Alberto Nisman was killed for having can freaking prove it. You go from HarperCollins, 2017), pp. 158–161 documented the enormous, govern- scared to angry back and forth.” ment-level cover up of Iran’s role in I ask Dodson how he managed to the bombing-murders of Jews. persevere. He pauses to reflect. He’s The challenge of stopping radical been asked nearly every question on Argentinian lesson: evil evil exists whether we are referring to the planet about his tribulations of the triumphs when good genocide, exile most cruel, and mass past couple of years. But not this one. people fear to stop it murder, or crimes against women and “I look back on it now and wonder, racially despised minorities. How did I manage to get through it? Acting as a whistle-blower got What must good people do? How did I manage to keep my job and Albert Nisman killed. Is that how First, we must find ways to remain freedom?” he says. “I don’t know, evil succeeds? connected to those whom prejudice other than blind luck. I’d like to say Phyllis Chesler silences, renders less than human. that right is right and the truth always Arutz Sheva 7, 2 January 2018 Survivors of serious atrocities say comes out, and that when you’re they are haunted by those who heard telling the truth you don’t have to their screams but turned their backs, worry. But you do have to worry closed their doors, remained neutral, because perception is reality and all refused to take any stand other than an these elements, much greater elements opportunistic one. than me, are treading in some very One cannot remain a bystander dark deep waters and I was the most without becoming complicit. Morally, expendable person in there. one must “take sides.” But, once a person takes the side of anyone who’s suffered a grave injus- tice, listens to her, believes what he says, tries to help him — that quiet act of humanity and courage may be viewed as a traitorous act. My advice? Phyllis Chesler Commit such treason as often as you can. EVIL TRIUMPHS when good people are afraid to stop it. Phyllis Chesler is a Shillman-Ginsburg Evil also triumphs when such fright- Fellow at the Middle East Forum and is ened people see that they, too, may the author of sixteen books, including prosper in the wake of wrong-doing: a Women and Madness, Woman's Jew’s appointment — or apartment, a Inhumanity to Woman, and The New dissident’s library or chinaware may Anti-Semitism. She has written four become their ill-gotten gain. studies about honor killing, Chesler may be reached at her website Evil triumphs when good people http://www.phyllis-chesler.com look away and remain silent; or when they side with the oppressor, not his victim; perhaps doing so will allow them to feed their children, keep their

The Whistle, #93, January 2018 31 Whistleblowers Australia contacts Snowden unveils phone app

Postal address PO Box U129, Wollongong NSW 2500 The former National Security Agency contractor who Website http://www.whistleblowers.org.au/ exposed US government surveillance programmes by Facebook Whistleblowers Australia Inc. disclosing classified material in 2013 has a new job: app Members of the national committee developer. http://www.bmartin.cc/dissent/contacts/au_wba/committee.html Edward Snowden in a video message on Friday unveiled

Previous issues of The Whistle a new phone app he helped create, called Haven, that aims http://www.bmartin.cc/dissent/contacts/au_wba/ to protect laptops from physical tampering. Snowden says it is an open-source tool designed for New South Wales contact Cynthia Kardell, human rights activists and other people at risk and it uses phone 02 9484 6895, [email protected] an Android phone’s sensors to detect changes in a room. Wollongong contact Brian Martin, phone 02 4221 3763. The software was developed with the Freedom of Press Website http://www.bmartin.cc/dissent/ Foundation and The Guardian Project. It has been greeted with mixed social media reactions, with some people Queensland contact Feliks Perera, phone 07 5448 8218, celebrating its security capabilities and others saying they [email protected] don’t trust Snowden. Tasmania Whistleblowers Tasmania contact, Isla Snowden has lived in Russia since 2013, when the MacGregor, phone 03 6239 1054, [email protected] country gave him asylum, resisting US pressure to extradite him. Schools and teachers contact Robina Cosser, — South China Morning Post, 24 December 2017 [email protected]

Whistle Editor: Brian Martin, [email protected] Phone 02 4228 7860 Address: PO Box U129, Wollongong NSW 2500 Associate editor: Don Eldridge Thanks to Cynthia Kardell and Margaret Love for proofreading.

A man stands in a phone box next to graffiti by street artist Banksy spoofing government spying scandals. Photo: Reuters

Whistleblowers Australia membership

Membership of WBA involves an annual fee of $25, payable to Whistleblowers Australia. Membership includes an annual subscription to The Whistle, and members receive discounts to seminars, invitations to briefings/ discussion groups, plus input into policy and submissions. To subscribe to The Whistle but not join WBA, the annual subscription fee is $25. The activities of Whistleblowers Australia depend entirely on voluntary work by members and supporters. We value your ideas, time, expertise and involvement. Whistleblowers Australia is funded almost entirely from membership fees, donations and bequests.

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

32 The Whistle, #93, January 2018