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

Whistle NO. 53, JANUARY 2008 Newsletter of Whistleblowers Australia Media watch

Officialdom stands wants to drag this whole sorry business says it cannot see a case against Keim. back into the light of public scrutiny. A letter supporting Keim has been in the way of It’s of a pattern with the fact that signed by a who’s who of Queensland public’s right to know the police, by their own estimate, have lawyers along with the Australian The federal Government and police spent about 30,000 hours investigating Lawyers Alliance, the Queensland seek total information control, argues government leaks, even when those Law Society and the Queensland Christopher Warren leaks were manifestly in the public Council for Civil Liberties, which have The Australian, 22 October 2007, p. 16 interest. As it happens there were commended the barrister as upholding rather a lot of leaks in the Haneef case the finest tradition of fearless repre- LAST week, Hedley Thomas, a senior before Keim decided to set the matter sentation. journalist with this paper, was straight by revealing the truth — the So yet again we see a person with nominated for Walkley awards in two whole truth — of what went on in the the courage to reveal information of separate categories for a series of AFP interview room between the crucial public interest facing crucifix- stories about Mohamed Haneef, the Queensland doctor and his interro- ion. We saw it last year in the case of Queensland doctor arrested in July gators. Allan Kessing, who was found guilty under the federal Government’s anti- The constant dripping of leaks of leaking, also to The Australian, terrorism laws. against Haneef was designed to make information about serious lapses of Meanwhile, the source of a critical him appear suspicious. Yet despite this security at our airports. component of those stories, Haneef’s attempt to convict in public opinion The resulting story prompted an barrister Stephen Keim SC, has been what could not be convicted in court, investigation and a $200 million reported to Queensland’s Legal the source of these leaks appears never upgrade of our border security, Services Commission for providing to to have been investigated and there something you’d imagine we’d all be Thomas the first record of interview was no outrage from Keelty, or grateful for. Instead, Kessing, who is between Haneef and officers of the Attorney-General Philip Ruddock, or appealing his conviction, was branded Australian Federal Police. Prime Minister John Howard, over a criminal and faced a hefty bill for his The record indicated how shallow these leaks, legal or not. defence. Happily in Kessing’s case, was the evidence against Haneef. It But when the true record of inter- Australian journalists and media started an unravelling of the police view with Haneef saw the light of day organisations rallied round and raised case that led to the Director of Public and the public was made aware of the money to help him pay his bill. Prosecutions dropping all charges mistakes made by AFP officers, and This year, the Media, Entertain- against Haneef. The actions of Keim their economy with the truth, Keelty ment and Arts Alliance got together and the stories of Thomas resulted in and Ruddock hit the roof. with News Limited (publisher of The prompt justice; they also saved the cost Keelty speculated that Keim’s Australian), Fairfax and several of this of a trial and prevented continued principled action was in contempt of country’s other large media organisa- embarrassment to the AFP. court (it wasn’t) and said it under- tions to form the Right to Know So you’d expect both would be sent mined the judicial process, which it Coalition, to try to combat the culture on their way with the grateful thanks didn’t. Ruddock said Keim’s action of secrecy and spin that is making it of all concerned. Not a bit of it. was “inappropriate’’ and “highly ever more difficult to bring these hard Instead, AFP Commissioner Mick unethical’’, and hinted that the DPP stories to light. Keelty has reported Keim to the may “take a view’’ towards legal Keelty’s petulant referral of Keim Queensland Legal Services Commis- proceedings. to the Legal Services Commission is sion, which has the power to have But given that Haneef was entitled symptomatic of this culture. In place of Keim struck off the legal register, to to do as he pleased with the record of this public petulance, Australia would fine him up to $100,000, or to have interview, he’d have been stupid not to be a better place if we saw serious him publicly reprimanded and his have released it to the press. As Keim action to protect journalists’ confiden- professional reputation traduced. This has said, it’s not often a defence tial sources. despite the fact that Haneef was enti- counsel has access to a single docu- There has been much talk of shield tled to a copy of the record of his ment that so clearly shows the case laws and in some states there is limited interview, and entitled to do with it as against his client to be paper-thin. protection for journalists who publish he wanted. We all know the outcome. Haneef the fruits of leaked material. But the The action against Keim can only was exonerated but remains in confidential sources, public-spirited be about something else: the continued Bangalore, unable to return to continue individuals who risk their careers to campaign by AFP, with the active his medical career after Immigration bring vital information to light, are left support of the federal Government, Minister Kevin Andrews cancelled his vulnerable. against the release of any information Australian visa. And yet Keelty by anyone other than them. It’s the continues to pursue Keim. Christopher Warren is federal secretary only thing that explains why Keelty The Bar Association of Queensland of the Media, Entertainment and Arts Alliance.

PAGE 2 THE WHISTLE, #53, JANUARY 2008 Mates’ fates or to make it a rule, would be commit- of society and be a model by making it Until a confidential system is intro- ting developmental suicide. safe and honourable to inform, with duced to protect whistleblowers, the It is accepted that it is a profes- severe punishment for false and culture of drug use in elite sport is sional responsibility to be honest in mischievous claims. doomed to continue. By Shane Gould. sport and business. However, when it’s The Bulletin, 2 November 2007 time to dob in a dishonest mate, the risks are too high. Informers begin as How can you think of of dobbing in insiders, but rapidly become outsiders. your mates when they’ve been on your They are blacklisted, their health team, sung the national anthem with deteriorates, and according to some you, shared narrow plane seats and statistics, most lose their job within dingy hotels on tours, consoled you in two years of their revelation. loss, commiserated with you in injury Whistleblowing could be an and possibly named their first kid after effective weapon in the war against you? drugs in sport. Getting drugs out of Whistleblowing in sport is a vexing elite sport is important, because all subject. To “dob in” a fellow athlete youth sport is modelled after elite Shane Gould won three swimming gold may be the ultimate betrayal of a sport, and the dream of ascending to medals at the 1972 Munich Olympics. colleague, particularly in Australia, elite sport from youth sport is a part of where mateship overrides authority youth sport culture and marketing. and the rule of law. This is the essence Putting together a system of whistle- Out in the cold: the man of the Anzac spirit, a fundamental part blower protocols and protections of being an Aussie, providing a sense should be done as soon as possible. who knew too much of belonging. We don’t know how many athletes Linton Besser Rugby league footballer Andrew have been on the verge of coming Sydney Morning Herald, “Joey” Johns’ footy mates and team forward and then have changed their 21 December 2007, pp. 1, 4 administrators admit they knew about minds. They need confidentiality, and his drug abuse, but chose not to say the process has to happen behind the LARRY VINCENT had a story to tell anything about it. It’s widely accepted scenes and out of the media to protect at RailCorp that no one wanted to hear. in hindsight that they should have both the whistleblower and the reputa- Hired in September last year to confronted the shamed player, but no tion of the accused. oversee the recruitment of contractors one was willing to risk being shunned Athletes have reason to be sceptical for billions of dollars of railways work, as an informer or face the discomfort of the system, because the confidenti- he uncovered what he believed were and responsibility of the confrontation. ality that is the basis for participation unethical and possibly corrupt AFL champion Ben Cousins in in the drug testing system has been practices. WA was in a similar situation. Other violated, as with revelations early this After trying to alert RailCorp’s players knew about his substance year about alleged drug test irregulari- Workplace Conduct Unit, its Internal abuse; officials knew about it but ties from Ian Thorpe, which were later Audit Investigations Unit, and even excused it as a young bloke letting off cleared. RailCorp’s chief executive, Vince steam and as a method of coping with It is sporting organisations, whose Graham, the human resources consult- the pressures of success. Elka ethos is determined by their leaders, ant says he was pushed out of the Graham’s recent disclosure of an elite that need to be primarily responsible organisation. swimmer offering her performance- for upholding the values, ethics and His contract was not renewed. An enhancing drugs in 2004 was more of a rules of sport. However, unless there is official statement he had tried to lodge “mouth fart” than whistleblowing. It aggressive support and protection of with the internal audit unit took so was greeted with derision, because she whistleblowers in sport, no one will long to be prepared that he had to sign told but — by not naming names — talk. it three days after he left the organisa- didn’t tell. In order to survive, sport may need tion. “Fess up,” people are saying. “We to take a financial and TV ratings hit, Mr Graham never responded. will make a law that forces you to to make necessary changes now, to “When I started there I was told inform on your mates.” At first I make bad behaviour unacceptable. Not that at RailCorp if you say anything, agreed, but looking at the recent even “three strikes you’re out”. Not they will put you through the shred- history of whistleblowing in corporate even a second chance when it comes to der,” Mr Vincent told the Herald. life and sport, I now think Elka is wise illegal and antisocial behaviour. “Well, it’s true.” to not “fess up”. Legalisation of performance-enhancing RailCorp did conduct an investiga- There is no system currently in drugs is emphatically out of the tion. But investigators based their place to support and protect whistle- question, and there needs to be zero inquiries on a one-page letter Mr blowers in sport. Loyalty is a biologi- tolerance of athletes using all illegal Vincent had sent to Mr Graham — not cal programming in young adults. To drugs. the seven-page affidavit signed by an expect them to inform on their mates, Leading sporting bodies have an internal audit officer. Mr Vincent was opportunity to jump ahead of the rest never interviewed about his allega-

THE WHISTLE, #53, JANUARY 2008 PAGE 3 tions, and the internal inquiry was “allegedly provided” services had not An example was offered where closed with no findings of corrupt been clarified. “My quick analysis of police could have been in danger. conduct. the information provided to me is that On June 5, a frantic call was taken But the full affidavit provided AndersElite does not have a written at the Lithgow centre from the owner details of a scheme within RailCorp contract with RailCorp,” he wrote. “Do of an Artarmon service station. An where middle managers repeatedly any of you believe that you have axe-wielding maniac was attacking his extend lucrative short-term contracts created a verbal contract with premises with intent to rob. without proper approval. These AndersElite?” Despite the dispute, Mr The operator did not take details of recruitment practices were so irregular Addinall’s department continued the weapon, leaving police unaware of that Mr Vincent believed they could be working with the firm. what they were dealing with. potentially corrupt. What shocked Mr Vincent most The call lasted one minute, 32 Sources have told the Herald that was his treatment by Mr Graham. seconds — much faster than the the renewal of contracts with values Years earlier they had been friends at average 3 1/2 minutes. too low to attract attention from senior National Rail. But Mr Graham did not For 14 months, Coles, a stepmother management is common throughout respond to four emails and letters from to six children, faced the full police RailCorp. Mr Vincent over several months. investigative artillery despite denying Mr Vincent said others in Major Worse, he refused to see Mr Vincent, she had leaked information. Projects were also uneasy about the who says he had scheduled a meeting She was dragged through court on unusual contracting. One had ex- with the rail boss and waited fruitlessly a criminal charge, faced losing her job pressed his concerns in a memo to the for 40 minutes outside his office. for professional misconduct, went on division’s general manager, Andrew Ms Fowler maintained Mr Graham extended stress leave and had her Addinall, but refused to email it to Mr “fully discharged his responsibilities in personal records ransacked. Vincent because “its contents would be relation to allegations made by Mr The matter was finally closed last so potentially ICAC-sensitive”. Larry Vincent”. week when she was told in writing RailCorp has denied the document there would be no further action. was sensitive. Its spokeswoman, Jo It’s a distressing tale about the Fowler, said it was part of an open widening paranoia in government review of “contractor engagement Who would be a agencies over leaks. Huge sums of procedures”. whistleblower taxpayer funds are being spent Mr Vincent also learned of a in this world of prosecuting ordinary people just trying document kept secret within a tight to do their jobs. circle in RailCorp’s Asset Manage- bureaucratic paranoia Earlier this year, Customs officer ment Division — a spreadsheet of Kelvin Bissett Allan Kessing was given a suspended contractor payments known as “The Daily Telegraph (Sydney), jail sentence after leaking to The Book”. Its existence has been 17 September 2007, p. 18 Australian reports containing allega- independently verified by the Herald. tions of drug trafficking and other Mr Vincent said in his statutory SOMEONE had to take the rap for an crimes at airports. declaration: “The contractors spread- embarrassing leak about the triple-0 Publication of the material led to a sheet lists payments to contractors service and pizzas published in this $200 million upgrade of airport secu- within the Major Projects Division and newspaper last year, NSW Police top rity — but Kessing was prosecuted contract period details … an audit will brass decided. anyway and left with legal bills of uncover payments made to contractors The someone selected, based on $44,000. that are without the proper delegations what was clearly inadequate evidence, In June, two Herald Sun journalists and some should have been forwarded was 40-year-old civilian communica- were convicted of contempt and fined to the RailCorp board for approval.” tions officer Donna Coles. $7000 for refusing to identify the Ms Fowler said “payments have The persecution of Coles began source of a leak about a plan to cut war not been made to contractors without soon after July 19, 2006, when The veterans’ benefits. Public servant proper delegation in the Major Projects Daily Telegraph revealed triple-0 Desmond Kelly was convicted of Division”. She declined to comment on operators were being offered pizzas, leaking the story, but was later cleared the existence of “The Book”. shopping vouchers, chocolates and on appeal. But RailCorp documents obtained movie tickets to take calls faster. Coles found herself under investi- by the Herald show irregularities were Journalist Gemma Jones wrote that gation soon after publication of the widespread. In November, for operators winding up calls faster than story, headlined “Prizes to rush triple-0 example, there was a dispute within average were granted gold stars under callers”. the division over a $42,313 invoice for a system more likely to motivate six- The next day, at the Sydney recruitment services, sent in by year-olds. Communications Centre, Coles and a AndersElite, one of the 900 human The story raised chuckles, but the colleague decided to track down the resource suppliers attached to whistleblower — whoever it was — June 5 recording of the service-station RailCorp. wanted to make the serious point that attack to hear for themselves what the In an email to senior staff on the lives of both police and victims of fuss was about. November 17, Mr Addinall said the crime were at risk.

PAGE 4 THE WHISTLE, #53, JANUARY 2008 It was this act that put Coles under Research last month by account- guards had slept on day and night suspicion. She did not have authorisa- ancy firm BDO Stoy Hayward found shifts and that at least one supervisor tion to access the Verint recording that employee fraud costs UK had pressured would-be whistle- system, although her colleague businesses £4m a day, with the biggest blowers to keep quiet about it. Andrew Drummond did. scams including bogus invoices, If this were an episode of The Gemma Jones refuses to identify manipulated accounts and ghost Simpsons, it would be amusing. But the source of her story, as is standard workers on the payroll. the failures here are real and sobering. practice in journalism. But for the Stuart Little, commercial litigation The plant owner failed to supervise its record, she says it wasn’t Coles. partner at Shoosmiths Solicitors, said security contractor, the security firm By January 2007, Coles had been recruitment and IT were the most failed to supervise its guards and the charged under Section 308H(1) of the vulnerable sectors. NRC failed to do its regulatory job, Crimes Act for making an unauthor- Jon Ingham, director of HR even when an insider provided a road ised access. consultancy Strategic Dynamics, said: map. She pleaded not guilty. “The right internal procedures and On July 27, magistrate Ian Barnett controls will help to manage the dismissed the charge. problem, but if people are going to Public Service Association engage in fraudulent activities, they industrial officer Geo Papas says will soon find other means of doing police bungled by pursuing Coles. this once one activity is controlled. “The irony was that she wasn’t The key is to create a work culture in even the whistleblower,” Papas says. which whistleblowers are happy to “Ms Coles appeared to be a test come forward.” case. They decided to target a civilian The Chartered Institute of Person- first before targeting the sworn staff. nel and Development added that it was “They wanted to send a loud, clear important for employees to feel that message to the sworn staff.” confidentiality would be respected In response to questions about the during whistleblowing procedures. case, a police spokesman rejected any suggestion that the action against Coles had anything to do with leaks to the media. Asleep on the job Meanwhile, the axe-wielding thief USA Today, 11 October 2007, p. A10 who attacked the BP service station Sleeping guards and other security has never been apprehended. This March, an anonymous whistle- issues have occurred at other plants in blower sent a letter to the Nuclear recent years. Sometimes NRC inspec- Regulatory Commission, warning that tors have aggressively corrected the guards at the Peach Bottom nuclear problems on their own, but too often it Explosion in fraud leads power plant in Pennsylvania were has taken whistle-blowers, the media, to call for culture change routinely sleeping on the job. The members of Congress or outside letter writer said he was writing on groups to press for action. to support whistleblowers behalf of other guards who were tired This is troubling at a time when the Gareth Vorster of covering up for their colleagues. He nation’s need for energy, and concerns Personnel Today, 22 October 2007 begged the NRC to do something and about global warming, are sparking a even suggested five ways to catch the nuclear renaissance. That means Human resources (HR) experts have sleepers, who are supposed to be on utilities will be building and operating warned that companies must develop constant alert to repel terrorist attacks. more plants. It’s important that they be an anti-fraud culture in the workplace For months, nothing happened. better managed and supervised than so that whistleblowers feel safe to Then a frustrated guard surreptitiously the Peach Bottom incident suggests come forward. videotaped several dozing colleagues they sometimes are. The warning follows the annual and gave the tape to WCBS-TV in Since 9/11, nuclear power plants Global Economic Crime Survey by New York City, which aired it late last have become a security priority for the business consultancy Pricewater- month. With that, all hell broke loose. simple reason that a successful terrorist houseCoopers, which revealed that the Exelon, the energy company that attack on one could be catastrophic. average cost to UK businesses affected owns Peach Bottom, fired Wackenhut, The Project on Government Oversight, by fraud had doubled to £1.75m in the the security company that provided the an independent watchdog group that past year. guards. The NRC, which said its initial has long followed nuclear plant issues, The survey found a 21% increase investigation had been “unable to estimates that it would take terrorists in the implementation of whistle- substantiate” the whistleblower’s just 45 seconds to go from the Peach blowing systems, but half of the 5,400 report, belatedly launched a high- Bottom plant’s outer fence to its spent respondents said they were effective, profile probe. At a public meeting this fuel pool, where an explosion and fire and only 3% of serious incidents were week, officials conceded that 10 detected by such systems.

THE WHISTLE, #53, JANUARY 2008 PAGE 5 could create a radioactive plume what we had a lot of evidence to to a particular vendor, would you feel stretching for miles. support already: that the administra- compelled to do something? The obvious severity of that threat tion’s illegal wire tapping activities So my question is, what are you does nothing to make the guard work cover more than the telephone system willing to do when push comes to less tedious, however, and under and is anything but selective. And it is shove, when it is something so big and current regulations, guards can work as pretty safe to say that, just as with the so wrong you can’t sleep at night much as 72 hours a week, or six 12- telephone surveillance, the key issue knowing you didn’t do the right thing? hour shifts. It’s little wonder that the with the monitoring of Internet traffic If you were in Klein’s shoes and Peach Bottom whistle-blower’s letter is analyzing connections rather than you weren’t retired and speaking up complained about guards coming to content: That is, figuring out who is could cost you your job, would you work “exhausted.” After an absurd talking to whom. have kept quiet? We now know there years-long rule-making process, the Why does this matter? Most of us must have been a number of AT&T NRC is finally planning to trim hours can say, “I have nothing to hide so executives who were completely somewhat, but guards will still be able why should I care?” and we’d be, in comfortable with the ethics of allowing to work shifts long enough to sap their principle, correct. But the problem is the NSA to perform covert wire taps. If attentiveness — especially if they’re the government easily could get it you were one of those people, how do not properly supervised. wrong. What’s more, they are collect- you justify your silence? If you The Peach Bottom case is a stark ing data on everyone and, once they weren’t, are all of your ethical example of what has to go right in the have the data, whose to say what future judgments above board? crucial effort to keep nuclear plants purposes might crop up to justify safe. In this case, the plant owner, the putting it to use? That is one slippery security company and the NRC all slope my friend. failed. It shouldn’t take a hidden The second thing I started thinking U. of Oregon settles camera to make them do their jobs. about was ethics. When it comes down whistle-blower suit over to your behavior in the IT world, can foreign-student program you say you behave ethically? Do you John Gravois have a well-developed sense of what is Chronicle of Higher Education, 28 Wiretapping, right and wrong? November 2007 whistleblowing Even more importantly, are you willing to act when you know of and IT ethics The University of Oregon has settled a misbehavior or do you just ignore it, AT&T whistleblower Mark Klein has lawsuit filed by a former professor hoping it will go away and leave you got Mark Gibbs thinking who accused administrators and alone? These were things you didn’t do Computerworld, 9 November 2007 faculty members of retaliating against anything about even though your her after she blew the whistle on a conscience was bothering you … so, Recently a retired AT&T employee problematic graduate program for why didn’t you blow the whistle? named Mark Klein announced at a foreign students. I’m guessing many of you have Capitol Hill press conference that he The university agreed to pay witnessed or even been involved in had evidence that “An exact copy of $500,000 to Jean Stockard, formerly things that you knew were wrong and all Internet traffic that flowed through the chairwoman of its department of sometimes this might have been in the critical AT&T cables … was being planning, public policy, and manage- category we could call “minor” stuff. diverted to equipment inside the secret ment. Ms. Stockard’s lawsuit sought a Minor stuff are all those small issues room.” million dollars in damages. but where it is arguable that reasonable This secret room, apparently According to settlement documents self-interest gives you a justifiable managed by the National Security released last week, the university “out.” Agency, was on the sixth floor of denies any wrongdoing in Ms. For example, say you caught your AT&T’s San Francisco offices. Stockard’s case. boss liberating a toner cartridge for Moreover, this room isn’t, so the story In 2005, Ms. Stockard fielded home use. Is it your responsibility to goes, unique. There are similar rooms several complaints from South Korean take action when it could result in you in many other AT&T offices around graduate students enrolled at the having to look for a new job? the country. university’s Institute for Policy On the other hand I’ll bet some of Klein had the luxury of becoming a Research and Innovation, a center run you have been party to bigger issues, whistleblower after any risk to his job by Michael Hibbard, a professor in Ms. things that were wrong or decisions had passed, but he kept copies of Stockard’s department (The Chronicle, that you knew would lead directly to documentation to prove his case. I March 31, 2006). things that would be wrong in a major suspect had he blown the whistle while The students said they were being way. For example, if you found out he was at AT&T (and assuming there billed thousands of dollars for that the same devious boss who was an effective opportunity for academic services that should have acquired the toner cartridge was whistle blowing at the time) he would been included in their tuition. They getting thousands of dollars in have been out on his ear. also complained that they were not kickbacks by steering server purchases This story got me thinking about a receiving enough individual attention. couple of things. First, this confirms Ms. Stockard reported the complaints

PAGE 6 THE WHISTLE, #53, JANUARY 2008 to administrators, who investigated the The raids were conducted after the Western Force is taking legal action institute and called for changes in the Force searched computer records of and the other matters were an issue for program. some employees in a failed attempt to the police, and therefore that is where Mr. Hibbard told The Chronicle learn if anyone leaked information to it should rest.” last year that the students’ complaints the Herald about serious wrongdoings Carroll said there had been no stemmed from a “cultural misunder- at the club. The club then obtained meetings scheduled with the Force standing” surrounding independent search warrants for the home and new over the allegations, but said the ARU academic work. After the problems workplace of a former employee and was continuing to monitor player with the institute were dealt with, began civil legal action against him. contracting issues with the club. The however, Ms. Stockard said, she was Western Force officials initially ARU was waiting for the Force’s the one who took flak from the vehemently denied stories in the internal audit on its player contracts, to university. Herald earlier this year that outlined be submitted to the ARU by mid In her lawsuit, which was filed in more than $300,000 in secret payments December. June 2006, she said she was pressured that were made to Wallabies players “We can ask for further details if to step down as head of the university last year in breach of the governing we are not satisfied with the response department she led because she body’s protocols. they provide,” Carroll said. pursued the Korean students’ The Force made the secret complaints. Ms. Stockard said she payments to three Wallabies players in retired after what she calls further 2006 and possibly as late as January “retaliation” from administrators and 2007, despite the club’s protesting that other members of her department, the payments related only to its including Mr. Hibbard and his wife. inaugural season. Ms. Stockard’s lawyer, Craig Crispin, Nathan Sharpe was paid about said he saw the settlement as a tacit $200,000, Scott Fava about $80,000 admission that the university was and Cameron Shepherd about $20,000. wrong. He wrote in an e-mail message Former player Chris O’Young was that the former professor “feels she did guaranteed the club would find him the right thing throughout and felt no outside employment worth about After being confronted by the alternative to standing up to the $20,000, and he earned most of that in ARU, the club admitted guilt and was administration regardless of the costs.” a job secured for him by the Force. fined $150,000. The secret payments Speaking on behalf of the univer- Although the deals breached ARU dated back to the formation of the club, sity, the Oregon Department of Justice protocols, there is no suggestion the when it tried to recruit top-line players. denied Mr. Crispin’s interpretation of players were aware of any potential A lawyer from Freehills in Perth, the settlement. “The settlement breach. Under the protocols, teams are Dan Dragovic, acting for the former agreement is not an admission of generally allowed to pay players Force employee, yesterday said: wrongdoing or unlawful conduct by $110,000 a year, in addition to a set of “Rugby WA [The Western Force] is the university or the state,” said Pete agreed extras such as cars and housing suing my client. They are alleging that Shepherd, a deputy attorney general in allowances. Internationals also receive he breached certain obligations of the state. additional wages from the ARU. confidentiality they say were owed to Furthermore, no state union is to be them, and we have denied those involved in facilitating, procuring or allegations.” arranging third-party deals as an The allegations of assault and Force sues former staffer inducement to sign a player without potential financial irregularities were ARU approval. over alleged leaks made separately to the ARU and do But during early 2005 the Force Gerard Ryle and Jacquelin Magnay not form part of the civil action. The recruited several players and guaran- www.rugbyheaven.com, 23 November allegations were made by the teed to find them paid employment, 2007 suspected whistleblower after he went outlining the income players would to the ARU for help. receive. The club guaranteed to pay the The Australian Rugby Union has failed ARU deputy chief executive Matt players if the employment fell through, to act on serious allegations of assault, Carroll said he received pieces of which is what occurred. potential financial irregularities and information from the man verbally, but The money was hidden in the that a bizarre witch-hunt was that details needed to be on the record Super 14 club’s annual accounts and conducted against a suspected whistle- and in writing before the ARU would did not appear as “player payments”, blower at the Western Force Super 14 take action. even though it was paid to three club. But Carroll said: “I have no details, Wallabies on the Force’s books. The allegations involving the Force documents, or information — unless The Western Force’s ability to were detailed in information put to the they are under investigation by the attract star players has long drawn ARU last week and follow raids on a police, but I don’t know details of the suspicion from the ARU and other private business and the home of a activities that have occurred. He didn’t Super 14 clubs. It has been central to former Force employee. come forward as a whistleblower to the the team’s rapid improvement. The ARU, he merely told us — that the

THE WHISTLE, #53, JANUARY 2008 PAGE 7 club rose from wooden spooners in It was much the same message on and John Buchanan, have worked for their first year to the second most Sunday night when SBS ran an trade unions in the past. successful Australian team last season. episode of Pria Viswalingam’s Hockey and Costello were soon hit But the payments also had an documentary series titled Decadence. with the allegation that they were adverse effect at the Western Force, Early in the program, footage was attempting to silence dissent — in where several employees have been shown of the Nazi death camp at spite of the fact that their comments made redundant during the past 12 Auschwitz with the now familiar link were accurate. Writing in The Age last months as the club struggles to find to modern Australia. Also, the Thursday, journalist Michael broad support in AFL-obsessed Perth. presenter primarily interviewed Bachelard went so far as to suggest members of the left intelligentsia who that the Howard Government had agree with him that Australia has somehow sanctified the report because become a decadent democracy. Then it was partly funded by the Research False silence the academic Robert Manne joined Council and because van Wanrooy had has everyone talking Hamilton in alleging that dissent was once worked in the Commonwealth Gerard Henderson not allowed under the Howard Public Service “under Peter Reith”, the Sydney Morning Herald, Government. former Howard Government minister 9 October 2007 The very existence of Viswal- for industrial relations. The previous ingam’s taxpayer-subsidised docu- morning Buchanan had run a similar Seldom in the history of public debate mentary indicates that, whatever its line when interviewed by Fran Kelly have the allegedly silenced been so intentions, the Howard Government on Radio National Breakfast. vocal. Last Friday the ABC Radio has not prevailed in the culture wars. The fact is that funding by the National Australia Talks program ran a However, the likes of Hamilton and council does not imply Government session from the recent Brisbane Manne used their interviews on prime support for the findings of publicly Writers Festival. It was one of those time television to argue that people financed research. What’s more, the familiar taxpayer-subsidised events like them are not heard. fact that someone once worked in the where members of the left intelligent- The opinion polls provide the only public service has no connection sia gather to have their prejudices scientific evidence about the likely whatsoever with the views of any confirmed. outcome of the forthcoming election. minister — Coalition or Labor. It is On this occasion the Australia They indicate that the Howard disingenuous to imply otherwise. Institute executive director, Clive Government is heading for a devastat- The Australia@Work report was Hamilton, essentially agreed with the ing loss. Moreover, Kevin Rudd and severely criticised in The Australian social researcher Hugh Mackay who many Labor candidates — especially last Friday by academics Sinclair essentially agreed with the journalist Maxine McKew, who is hoping to Davidson and Alex Robson. The David Marr about contemporary defeat the Prime Minister in important point about Buchanan and Australia. Needless to say, the Bennelong — have experienced a most his team at Sydney University is not audience had a ball. Especially when friendly media throughout the year. that the report was partly funded by Hamilton argued that pokie taxes at the This would not have been possible if Unions NSW or that he is on record as Rooty Hill RSL should be increased to Howard either controlled public being a Howard-hating socialist fund 1000 public intellectuals. In opinion or stifled debate. (witness his Politics in the Pub speech certain circles, there is a lot to be said The argument that the Howard of February 18, 2005). Rather, what for redistribution of income which Government is silencing dissent has matters about Buchanan is that he is a takes money from lower-income now gone so far that ministers are long-term opponent of industrial earners in the suburbs and uses it to criticised for taking on their critics. No relations reform, under both the fund inner-city types who like to such standard was ever required of the Howard and Keating governments (see describe themselves as public intel- former governments headed by Paul his article in the June 1999 issue of the lectuals. Keating, Bob Hawke, Malcolm Fraser Journal of Australian Political Hamilton and Sarah Maddison are and Gough Whitlam. Economy). the editors of Silencing Dissent (Allen Last Tuesday the Herald and The In other words, Buchanan’s dissent & Unwin, 2007), which argues that the Age gave page one coverage to a report has not been stifled under either the Howard Government is controlling called Australia@Work, which was Keating or Howard governments. Nor public opinion and stifling debate. In funded by Unions NSW and the was Manne ever silenced — not even keeping with the forum’s format, Marr Australian Research Council. The when he wrote in 1992 that the Hawke agreed with Hamilton that John study, which is critical of the Howard Labor government had “put Australia Howard was intent on silencing his Government’s industrial relations in a situation from which it is critics. No one in the audience reforms, was soon attacked by the genuinely difficult to foresee a non- appeared to query how this could be Workplace Relations Minister, Joe disastrous exit”. Nor was Hamilton the case when both men had a gig at Hockey, and the Treasurer, Peter quietened when, in 1991, he called for the Brisbane Writers’ Festival and Costello. They drew attention to the a “healthy” inflation rate of 7 to 8 per their thoughts would be preserved for fact that the project was partly funded cent. posterity, courtesy of the taxpayer- by the trade union movement and that The fact is that many one-time funded public broadcaster. two of its authors, Brigid van Wanrooy opponents of the economic reform

PAGE 8 THE WHISTLE, #53, JANUARY 2008 process remain credible today because units, nurses said “mistakes are natural do it better. These actions can annoy neither Labor nor the Coalition ever and normal to document” and doctors and administrators — or any implemented such advice. This applies “mistakes are serious because of the other authority figure — who prefer to Hamilton, Manne, Buchanan and toxicity at the drugs, so you are never quiet and compliant underlings, but if more besides. But the refusal of a afraid to tell the nurse manager.” In the we want organizations that do as much government to follow (flawed) advice units where errors were rarely good and as little harm as possible, does not amount to censorship. Just reported, nurses said things like “The these talents are essential. good sense. environment is unforgiving, heads will roll.” The physicians who helped TABLE 4-2 Gerard Henderson is the executive sponsor her research changed their The talents of wisdom: people who director of the Sydney Institute. view of medical errors 180 degrees. sustain organizational learning They no longer saw errors as purely See Peter Bennett’s letter to Gerard objective evidence, but partly as a Noisy Repair problems right Henderson on p. 10. reflection of whether people are complain- away and then let every learning from and admitting mistakes ers relevant person know or trying to avoid blame and, in the that the system failed process, possibly covering things up. Noisy Always point out Encourage people to Edmondson and her colleagues trouble- others’ mistakes, but do be noisy and nosy: have since done multiple studies on makers so to help them and the how hospitals, surgical teams, doctors, system learn, not to it promotes wisdom and nurses learn from problems and point fingers An extract from errors, which reveal much about talents Mindful Tell managers and peers Jeffrey Pfeffer and Robert I Sutton, and behaviors that promote wisdom. error- about their own Hard Facts, Dangerous Half-Truths, Especially pertinent is a study of makers mistakes, so that others and Total Nonsense: Profiting from nurses that examined 194 patient care can avoid making them Evidence-based Management failures, everything from problems too. When others spot (Boston: Harvard Business School caused by broken equipment to drug their errors, they Press, 2006), pp. 105-107 treatment errors. Edmondson and communicate that colleague Anita Tucker concluded that learning — not making Here is a trick question. Imagine that those nurses whom doctors and the best impression — you just had a major operation and are administrators saw as most talented is their goal given the choice: do you want to stay unwittingly caused the same mistakes Disruptive Won’t leave well in a nursing unit that administers the to happen over and over. These “ideal” questioners enough alone. They wrong drug or the wrong amount, or nurses quietly adjust to inadequate constantly ask why forgets to give the right drug, about materials without complaint, silently things are done the way once every 500 patient days, or would correct others’ mistakes without they are done. Is there a you rather be in a unit that blunders 10 confronting error-makers, create the better way of doing times as often? In the mid-1990s, impression that they never fail, and things? Harvard Business School’s Amy find ways to quietly do the job without Edmondson was doing what she questioning flawed practices. These Source: Amy G. Edmondson, “Learning thought was a straightforward study of nurses get sterling evaluations, but from mistakes is easier said than done: how leader and coworker relationships their silence and ability to disguise and group and organizational influences on the detection and correction of human error,” influence errors in eight nursing units. work around problems undermine Journal of Applied Behavioral Science 32 Edmondson, and the Harvard physi- organizational learning. Rather than (1996): 5-28 and Anita L. Tucker and Amy cians funding her research, were these smart silent types, hospitals G. Edmondson, “Why hospitals don’t learn flabbergasted when nurse question- would serve patients better if they from failures: organizational and psycho- logical dynamics that inhibit system naires showed that the units with best brought in wise and noisy types change,” California Management Review 45 leadership and best coworker relation- instead. (2003): 55-72. ships reported making 10 times more Table 4-2 lists these talents of errors than the worst! wisdom. All of these characteristics Puzzled but determined to under- help people act on what they know, stand this finding, Edmondson brought and keep improving their own skills, another researcher to observe these peers’ skills, and organizational nursing units. Edmondson didn’t tell practices and procedures. The crux is, this second researcher about her if you want better performance instead findings, so he wasn’t biased. When of the illusion of it, you and your Edmondson pieced together what this people must tell everyone about researcher observed with her findings, problems you’ve fixed, point out she realized that better units reported others’ errors so all can learn, admit more errors because people felt your own errors, and never stop psychologically safe to do so. In these questioning what is done and how to

THE WHISTLE, #53, JANUARY 2008 PAGE 9 Articles

Bennett to Henderson deal with persons with more authority. Good Samaritan legislation is an (This letter refers to Gerard Or they will have their pension or attempt to align the civil law with a Henderson’s 9 October article in the allowances reviewed if they complain. citizen’s public duty. Most Good Sydney Morning Herald, reprinted on Unfortunately this oppressive Samaritan legislation is protective p. 8 of this issue of The Whistle.) culture of silence is flowing from rather than affirmative. In the US, Howard's Government down to state Canada and Europe, Good Samaritan Dear Mr Henderson governments, local governments and statutes exempt from liability a person especially into private enterprise. who voluntarily renders aid to another Re your criticism of complaints about Now public servants in hospitals, in imminent danger. The Samaritan is silencing public opinion, I think you ambulance services, police forces, protected from any unintended missed the point. The sheep are military forces, customs, and so on can consequences of their action. Only bleating but the lambs are silent. be fined $10,000 for using an email to three US states have affirmative Good The academic and journalistic sheep criticise someone. Simply using an Samaritan legislation, which require are bleating about the stifling of public email to direct someone to Hansard bystanders to call the police or render criticism and rightly so. can be used to sack an employee. Or assistance to an injured person. Good They are not bleating about their they can be prosecuted (and urged to Samaritan laws then aim to protect the right to criticise Mr Howard and his be goaled for 2 years) for telling the Good Samaritan without punishing the government and his culture of imposed public that there are criminals working bystander who doesn’t act. Ironically, silence. at Sydney Airport. however, it is the silent bystander that They are bleating because the right Workers and vulnerable members of the civil law is designed to deter. to complain or disclose wrongdoing or the public are the lambs and Mr When a Michigan student, Kevin expose unfairness is being eroded Howard is fanatical about silencing Heisinger, was beaten to death in the because Mr Howard has created a those lambs. presence of five silent bystanders at a culture of silence and he is maintaining bus terminal in 2000, two Michigan it with a fanatical passion. Peter Bennett legislators introduced legislation to Mr Howard knows he can't stop the Whistleblowers Australia require people witnessing such a crime academics and journalists from 10 October 2007 to be required to call police immedi- commenting — so he has taken the ately. Analogous to the Genovese case, Peter Bennett is president of Whistle- soft option and silenced the sources of it was the inaction of the bystanders blowers Australia. Gerard Henderson that prompted legislators to act. complaint. He has taken rights of did not reply to this letter. freedom of information, communica- No one knows more about the tion and association from ordinary importance of the bystander than the workers and employees. He has eroded whistleblower. For the whistleblower, employment and social protections Evil prospers when good the administrator who won’t listen, the regulator who won’t regulate and the previously available to people and left people do nothing them exposed to easy retaliation and fellow employee who won’t assist victimisation. This insidious process become the silent bystanders who Kim Sawyer commenced as soon as he came to determine the whistleblowing problem. On Line Opinion, 13 July 2007 power by giving agency heads power It is no coincidence that the maxim of to control staff. Compliant staff are Whistleblowers Australia is the often In March 1964, a woman was rewarded while staff who are critical repeated quote attributed to Edmund murdered in a street in New York City. are easily punished. The litany of Burke that evil prospers when good There were 38 witnesses to the killing schemes to break apart and silence and people do nothing. The consequences of Kitty Genovese, but no one inter- instil fear into any voice of opposition of inaction are often high. A whistle- vened. Only one called the police, but would do Stalin proud. blower informed NASA of problems it was too late for Kitty Genovese. Mr Howard has created a national with the space shuttle more than a year Thirty-eight people did not want to get culture of silencing the lambs. before the Challenger disaster, a involved. They were the silent The academics and journalists are whistleblower informed regulators of bystanders. The killing of Kitty bleating because workers, employees the problems at Enron more than a Genovese shocked the United States. It and citizens who want to blow the year before its collapse and a whistle- revealed a society so anonymous and whistle about employer abuse of the blower informed APRA of the devolved that Good Samaritans industrial system are threatened with problems at HIH more than three years apparently no longer existed. The dismissal if they complain. Or they before its collapse. Those who don’t Genovese case generated a substantial aren't hired because they are the type take action rarely pay a price. Usually, reaction, and led to the framing of who will resist oppression. Or they it is the whistleblower who pays the Good Samaritan laws which remain as aren't promoted because it is easier to price through loss of employment and statutes of most US states. control junior workers than have to discrimination; they pay the price for the inaction of others. The recent case

PAGE 10 THE WHISTLE, #53, JANUARY 2008 of Alan Kessing, the customs official, This referral is binding despite the harmonisation mean that all Australian who blew the whistle on security Howard government having lost office. FoI legislation would be rendered concerns at Australian airports, down to the pathetic status of the amplifies the point. Kessing acted Item 1. Ruddock refers to “the need to Federal FoI Act? It would be logical when others would not. He leaked a balance the public interest in making for the Commonwealth to offer to report to a newspaper. This generated information available and the public create a national act by incorporating an inquiry which led to a complete interest in protecting certain informa- the salient parts out of all the various overhaul of airport security. Last tion”. However the recent government- FoI Acts in Australia. The Common- month, Kessing was convicted and inspired prosecution of Allan Kessing wealth could then promote this given a suspended prison sentence for (ex-Customs officer accused of national act for use universally. leaking the report. He paid the price informing the public that they were at But the Commonwealth has a 10- for the inaction of others. risk because of lack of security at year history of dismantling the Recent events in Melbourne have Sydney Airport) challenges the credi- Commonwealth FoI Act and any provided insights into the bystander bility of this objective. The prosecution vestige of open government. Therefore problem. The excuses offered for the was “inspired” by the government having the Commonwealth with its inaction of Alan Didak are the same because the Customs Service had festering finger in the pie will be more excuses that most silent bystanders already decided there was no case to likely to diminish the already deficient use, the risk in speaking up, the answer. So the government stepped in quality of all Australian FoI acts. principle of not dobbing and, finally, and the Director of Public Prosecutions Wouldn’t it be nice if the govern- that we can never anticipate the suddenly decided to prosecute ment actually got serious and stopped consequences of inaction, so we can’t Kessing. pretending? The ideal would be for the be blamed for those consequences. No So does the government really want Auditor General to assemble a group one could envy the position of Didak, to balance the public interest or just of relevant eminent persons to but he chose to be silent. find yet another way to protect the construct a draft national FoI act. It is unlikely that any legislation government’s interests? Setting up an can induce bystanders to do their ALRC Inquiry into FoI that will not Terms of Reference public duty. We can protect Good produce a result till the end of 2008 REVIEW OF THE FREEDOM OF Samaritans through legislation, we can shows just how concerned the INFORMATION ACT 1982 possibly require bystanders to call government is about sorting the mess. I, Philip Ruddock, Attorney-General of police, but it is difficult to prescribe The problems have been identified by Australia, having regard to: that someone must render assistance. every public commentator in Australia, • the rapid advances in information, The balance between the bystander by the legal profession and by many communication, storage and other who acts and the bystander who other public interest organisations, relevant technologies; doesn’t act is a cultural problem. In including Whistleblowers Australia. • State, Territory and overseas Australia, we have established a Yet the government wants to wait for legislation in relevant areas; and culture where the public duty is not more than 14 months before doing • the need to balance the public priced highly. Clearly, it is irrelevant anything productive. interest in making information to many. Until, of course, they need a Why not start by simply issuing a available and the public interest in Good Samaritan to help them. directive that government agencies protecting certain information; comply with the “Brazil direction”? It refer to the Australian Law Reform Kim Sawyer is a member of Whistle- has been in force since 1985, yet no Commission for inquiry and report blowers Australia. agency complies. It requires that pursuant to subsection 20(1) of the agencies release information unless Australian Law Reform Commission “real harm” would ensue. Why didn’t Act 1996, matters relating to the extent Tempted as I might just be Ruddock institute prosecutions against to which the Freedom of Information public servants who failed to comply Act 1982 and related laws continue to To blow the whistle upon thee. with that direction? He had the power provide an effective framework for Before I do I think and rate to do so under the Judiciary Act. access to information in Australia. The options of my own poor fate. The obvious answer is that the 1. In performing its functions in government was happy with the status relation to this reference, the quo and went ahead with this referral Commission will consider: (a) relevant just to postpone the inevitable. existing and proposed Commonwealth, The Ruddock FoI referral State and Territory laws and practices; Item 2. Of course it would be great to (b) any need to harmonise those laws Peter Bennett harmonise all the FoI legislation in and practices; (c) administrative acts or Australia. The referral suggests this is practices within agencies and their At the end of September 2007, a matter to be considered. impact on access to Government Attorney General Philip Ruddock The obvious time delays that such a information; (d) other recent reviews asked the Australian Law Reform project would need would be grounds of the Freedom of Information Act Commission (ALRC) to review enough for concern. However there is 1982; (e) information access regimes Freedom of Information legislation. a more worrying aspect. Would the in other comparable jurisdictions; (f)

THE WHISTLE, #53, JANUARY 2008 PAGE 11 any relevant constitutional issues, extremely detailed. It is an outstanding whistleblowing, when taken in particularly those that may affect piece of research that will form a context with the type of whistle- harmonisation of information access baseline for further research and blowing. laws; (g) the impact of an evolving administrative action for many years to 2) Case handlers and managers have technological environment on come. responded that 48% of employees production, storage and access to who report wrongdoing “often or information; (h) the desirability of The percentage of whistleblowers always” experience problems minimising the regulatory burden on that experience no retaliation (emotional, social, physical, or government agencies; (i) the legitimate financial) and a further 42% state interests of governments and their The report states that only 22% of that it is “sometimes” the case ability to obtain forthright advice from public interest whistleblowers (p.83). agencies and also of third parties who responding to the largest survey (the These problems are not necessar- deal with government; and (j) any Employee Survey) are treated badly by ily retribution, but it is difficult to other related matter. management and co-workers. This see how these types of problems 2. The Commission will identify figure came as a surprise to this writer could arise, if the whistleblower is and consult with relevant stakeholders, and to most members of WBA. treated “well or the same” by co- relevant State and Territory bodies and Whistleblowers who approach WBA workers or management. These ensure widespread public consultation. will likely be facing greater difficulties results come from a survey 3. The Commission is to report no than the sample in the Griffith report, question, 31, which is preceded by later than 31 December 2008. and have gone to WBA for those the statement that it concerns Dated 24 September 2007 reasons. They will colour WBA “possible negative impacts and perceptions as a result. Nevertheless, risks of reprisal in your organisa- Philip Ruddock, Attorney General this research finding appears at odds tion for employees who report with other data from the same wrongdoing”. This explanation Peter Bennett is president of Whistle- research; and from the findings of blowers Australia. would suggest that the respondent other researchers. When coupled with would answer in the context of press releases that “bust whistleblower reprisals. bad treatment myth” (October 24, A further point is that case Whistleblowing in the 2007), or the opening paragraphs in the handlers and managers involved in Public Sector: comments report that state the “bleak picture is a whistleblowing incident would substantially inaccurate”, the research likely see the true picture behind takes much of the urgency out of the Peter Bowden whistleblowing for it is their task need for legislative reform. It is very to manage such incidents. They Dr AJ Brown of Griffith University is desirable, therefore that the figure be would have no reason to exagger- the leader of a large research project accurate, and clearly be seen to be so. ate their responses. If then 48% to on whistleblowing, funded by the The report does not fully achieve 90% of whistleblowers experience Australian Research Council and this objective, for several reasons: problems, as observed by people several ombudsmen’s offices and other 1) It is not entirely clear that the 22% with some formal responsibility, watchdog bodies. The project’s first who are mistreated are public then the question arises as to why report, titled Whistleblowing in the interest whistleblowers. Point 14 do the majority in the Employee Public Sector, was released in October on page vi describes this 22% Survey report whistleblowing 2007. It is a compilation and analysis category only as “whistleblowers” without retribution or, apparently, of several large surveys of public (although Figure 5.1 describes without problems. sectors employees. It is labelled draft them as public interest whistle- 3) Table 2.6 states that for 37% of and seeks comments. The following blowers). If they are public inter- reporters the wrongdoer was paragraphs are the comments sent to est whistleblowers only it should “below my level” and a total of Griffith University by Dr. Peter be clear. Nevertheless, even if 67% “at” or “below my level”. Bowden, Education Officer on the point 14 is clarified and the 22% The percentages are higher for National Committee, and President of are public interest whistleblowers, managers who reported wrongdo- the NSW Branch of Whistleblowers the term raises the question of ing by people at or below their Australia. They have been modified what is “public interest” whistle- level (up to 78%). These figures slightly to make them more intelligible blowing. It appears to be a raise questions about the low level to readers of The Whistle who have category of whistleblowing that of retribution reported in the not read the Griffith report excludes personal and workplace Employee Survey, for it is grievances, a category which in difficult to see how an employee I comment here on a number of issues. turn raises the question of whether at a lower level can exact retribu- But first, my sincere congratulations to this so-called classification of tion on a person who whistleblows Dr AJ Brown and his colleagues. The whistleblowing is likely to be ill against him/her when that scope and volume of work set out in treated. As discussed below, whistleblower is at the same or a the report are massive, and the further doubt arises on the higher level. The 22% who are analyses that have been undertaken are question of the direction of treated badly appears to include

PAGE 12 THE WHISTLE, #53, JANUARY 2008 people who report a lower level fear of reprisal. When reporting or to a case handling specialist. It employee (Figure 5.1). Table 8.20 wrongdoing above them the fear is would be interesting to determine if from the Employees Survey shows well over half. It would be reasonable reprisals correlate with the type of 85% at the “at or below” level to give some credence to this wrongdoing for both upwards and were treated well, 66% where the percentage as reflecting some downwards whistleblowing. wrongdoer is above the whistle- knowledge of how their organisation blower’s level. Again it is not would react. The public interest in public interest immediately clear whether this It would be helpful if the report whistleblowing reporting was public interest could clarify these issues. whistleblowing or whether it The “at or below” issue raises, It is not always clear in the report included personal grievances. along with other concerns, questions when the whistleblowing includes on the reliability of the Employees personal or workplace grievances (as Whistleblowing against a person at a Survey’s recording of low incidences in Table 2.6 mentioned above). This lower level does raise the question of of retribution. It does not however, distinction needs to be made at all whether the definition of whistle- fully explain the 66% of people stages where the question of reprisals blowing needs changing. A sound whistleblowing against people above comes up. argument could be advanced that it is them who are treated well (Table The definition I use on the public the responsibility of every manager in 8.20). These issues are still subject to interest component of whistleblowing any organisation to put a stop to questioning the type of whistleblowing is wrongdoing when he/she hears of or (below). observes it anywhere in the organisa- An action that brings harm, or has the potential to bring harm, directly tion. The actual locus of responsibility It is entirely feasible that managers or indirectly to the public at large, or more senior staff, apart from those The question of whether the wrong- now or in the future, is not in the with direct responsibility, classified the doer is above or below the whistle- public interest survey questions on wrongdoing as blower may impinge on the risk of Harm itself is difficult to define but whistleblowing (according to the reprisal, but the real impingement is could impinge on the health, welfare, definition used by the Griffith study), whether the manager responsible for financial well-being or even on the when they were simply fulfilling their that function believes him/herself reasonable expectations of all people broader management responsibilities. accused by the whistleblowing. or a specific group of people. The responses on attitudes show that Alternatively, whether that manager If that definition is accepted, it managers have a higher sense of feels sufficiently responsible for the could redefine some of the classifica- Organisational Citizenship Behaviour public image of the organisation to tions of wrongdoing or of whistle- than normal employees. The report cover up any wrongdoing. A manager blowing itself. In short, whistleblow- itself says, p109, that senior managers senior to the whistleblower who has ing that brings no harm to the public at often view the reporting of wrongdo- failed to identify or uncover a wrong- large is not whistleblowing. The ing as fundamental to the integrity of doing against the public interest, or Griffith report, however, has many the organisation. Several other places who will bear the opprobrium of its categories beyond this definition. in the report evidence that managers exposure, even though the wrongdoing have a more positive view of the is committed by a junior officer, will The nature of the wrongdoing organisation than non-managers: Table likely wish to cover it up, even though 6.1, pp101, 105 (s.6.6). that manager was not responsible for A high percentage of people who Senior officers can encounter the wrongdoing. Many examples from consider themselves whistleblowers wrongdoing at levels equal to or below other fields of endeavour — in the are unable to identify the harm that has them, even when outside their own churches for instance — illustrate a been inflicted on the public. Whistle- responsibility, through the many cross strong desire to cover up by senior blowers Australia in NSW have been organisational meetings, social personnel, even though they have not meeting with whistleblowers seeking engagements or friendships that exist been responsible for the wrongdoing. assistance every week for several in modern organisations. When taken A related issue arises when a Board of years. WBA does not keep statistics in combination with the question of Directors rolls a fellow Director who but would estimate that 50-60% of the what is public interest whistleblowing wants to expose wrongdoing by the people who consider themselves below, it becomes apparent that the Chief Executive. whistleblowers, come along because of 78% treated well may include numbers The questionnaires may be able to the problems they are having at work, of people who are risking nothing to associate the type of wrongdoing with usually with one or a few senior report the wrongdoing, and against the level of officer reported for officers. They rarely have a public whom it would be impossible to take wrongdoing, and the level of officer to interest wrongdoing to expose. If asked retributive action. whom the offence was reported (and what the wrongdoing was, they usually These conclusions are in part borne therefore assumed to be exerting the cite bullying of some type or form. out by Table 8.3 which shows that reprisals). Question 28 in the Their purpose in coming to WBA is to whistleblowers when reporting wrong- Employee Survey, for instance, talk through the problems they are doing below them have a negligible assumes the report is to a senior officer experiencing.

THE WHISTLE, #53, JANUARY 2008 PAGE 13 This finding is consistent with the percentage that experience retaliation reason why non-reporters did not Griffith study which in Table 3.5 will be higher for those who ap- expose wrongdoing. It is difficult to shows a massive 24% reporting proached either WBA or responded to believe that these fears were not bullying as the wrongdoing. Based on the IWS (although the only IWS grounded on actual practice in the the WBA meetings with whistleblow- results in answer to Qs 50 & 51 are in organisations for which the non- ers I would argue, however, that Table 5.1, which was not fully clear to reporters worked. bullying should not generally be this reader. The text states however Finally the report itself quotes two classified as a public interest matter. that only a quarter were treated badly, respected US researchers, Miceli and If the bullying is widespread, which is lower than WBA findings). Near, to the effect that the exposure affecting a number of people in the But this explanation does not may be “potentially controversial and work environment, then it is of public answer the higher rates for case damaging” and “result in negative interest. But such claims are difficult handlers, for they are people trained in outcomes for all” (p4). There are many to prove, and in any case rarely made. and with the responsibility to resolve similar research findings. The only recent claim is Royal North whistleblowing issues. They would, it Shore Hospital in NSW where is assumed, be more dispassionate in Impact on conclusions in the report widespread bullying has been publicly noting the occurrence of retaliation. If stated as the cause behind the problems however, the Case Handlers figure of It is suggested therefore that if the low at that hospital. 90% experience problems “sometimes, levels of retaliation found in the Several other categories of wrong- often or always” is valid, then the Employee Survey can be contradicted doing in Table 3.5, when viewed from question of why is the ES figure so by findings in other surveys, and by the position that it may be a personal low has to be answered. other outside researchers, then the clash with the supervisor that is behind Four responses are possible, all report would best be circumspect about the claim to be a whistleblower rather speculative. (i) A number of respon- its conclusions on this issue. State- than public interest, reinforce the dents claiming to be whistleblowers ments such as “possible to blow the questioning of public interest. These are experiencing interpersonal conflict. whistle without suffering reprisals” include favouritism, failure to follow They are not threatening the organisa- and “in the vast bulk of organisations, staff procedures, covering up poor tion, however, and are therefore less speaking up … is … a natural part, if performance, inadequate record likely to face attempts to silence them. not duty, of a public servant”, or the keeping, and incompetent decision- In other words, if some “wrongdoing”, “bleak picture is substantially inaccu- making. All are classified by the such as bullying or the many other rate” should be employed with caution, project’s report as public interest complaints that do arise, are not if at all. Placing the minimal retaliation issues, whereas in practice many are against the public interest, then people conclusion in a premier position in the result of personal or workplace reporting these wrongs are unlikely to press releases should also be under- grievances. The report classifies only experience retaliation to the same taken cautiously dangerous or harmful working condi- extent. (ii) As noted, the percentage of The danger of minimising the tions, unfair dismissal and bullying as whistleblowers whistling on lower retaliation risk, particularly as it is not personal grievances, although there are level employees is high in the ES, but unambiguously correct, is that it many more personal issues that arise. where the possibility of retaliation is removes the pressure on politicians to low. Not only does this issue impinge strengthen whistleblower legislation. Does the low retaliation rate fully on the nature and definition of whistle- The danger for the Griffith report is reflect actuality? blowing but it also offers a possible that the conclusions are not fully reason for the discrepancies in the supported and may be disputed in other In summary then, the question arises survey results. (iii) Some whistleblow- academic and professional fora. on why the percentage of retaliatory ers have changed jobs, and are there- harm experienced by whistleblowers is fore unlikely to experience retribution. The agencies that participated lower in the Employee Survey (ES) The impact of leaving the service will than it is in the other surveys – the The desirability of identifying the type be small, however, as resignation rates of agency that participated in the study Internal Witness Survey (IWS) or the are low. The impact of changing Casehandlers and Managers Survey, has been mentioned earlier in these departments can be checked from comments. It is also one way to significantly so in the latter, and in some of the survey answers. (iv) The WBA experience. And which figures differentiate between likely levels of document does not show the percent- retaliation. are more likely to be correct? ages of respondents from different Part of the answer is straightfor- Among the wrongdoings listed for agency groups. As the Commonwealth instance, there is no plagiarism, false ward. The IWS will have a higher has virtually no whistleblower protec- figure for the same reasons that WBA reporting of research results, dishonest tion, it is possible that the nature of grant applications, or mistreatment or findings show high levels of retaliation whistleblowing and therefore of — people with post whistleblowing harm to patients, which would indicate retaliation is different in the universities, research institutions and problems are more likely to select Commonwealth. This possibility themselves for approaching WBA, and hospitals are not included in the should be explored further. surveys. All of these institutions have for responding to a survey, where they Page 133 and Table 8.3 show that can state their grievances openly. The featured strongly in whistleblower fear of reprisal was the overwhelming news and organisational cover-ups in

PAGE 14 THE WHISTLE, #53, JANUARY 2008 recent years, perhaps proportionally It would be worthwhile considering From the viewpoint of the issues more than the central public service. extending the definition to users (or raised in these comments, it is sug- In a research document that will be clients or customers). Whistleblowers gested that the project, possibly quoted by many other researchers in Australia is aware of a number of cases through surveys but preferably through coming months and years, it is desir- where a user of a public service has interviewing, undertake to clarify the able that as much data as possible be suffered discrimination for speaking uncertainties that have been noted. e.g. supplied, even if the need is not out against a public supplier. It can be What are personal grievances and how currently obvious. argued that the Administrative Appeals to identify them? Do whistleblowers Tribunal, or its state equivalents, exist reporting against a person at a lower The private sector to correct such problems, but these level experience the same amount of institutions have a number of weak- retribution? Are the IWS respondents The research is on public sector nesses that render them less than materially different from the Employee whistleblowing. It is difficult to effective. Some state tribunals do not, Survey respondents in any ways that distinguish at times, however, between in fact, cover all public bodies, would explain differences in the levels the magnitude of the damage to the including some that ration a public of retribution? public good that can be caused by resource. The suggestion on more interview- private sector wrongdoing, against that The three-fold objective of whistle- ing is raised because it is the only by the public sector. The HIH debacle, blowing legislation is to protect the reliable way of determining whether for example, was as damaging to the whistleblower, encourage whistle- the issue is a public interest concern public interest as any public sector blowing and stop the wrongdoing. The rather than a personal or workplace wrongdoing in recent years. The inclusion of a client that could identify complaint. It will add flesh onto some APRA failure to heed the private wrongdoing would help fulfil these of the bones of the numbers that have sector whistleblower on FAI and HIH objectives come up through the surveys. was in fact a public sector whistle- More significant however is the blowing management failure. need to include the public interest in In conclusion In addition, the public sector runs the identification of whistleblowing. businesses — transport systems, power The current definition has included These comments are intended to generation plants, and other instru- people making personal complaints, provide support and suggestions where mentalities — that could easily be which have muddied the waters on a possible strengthening could be private sector. These bodies would be how they are treated, and the types of considered, They do not decry in any exposed to the same types of legislation needed to protect them. way an impressive research undertak- wrongdoing as are private companies – Both the Griffith study and WBA ing, for which, as mentioned at the advertising, marketing, pricing, would prefer the term Public Interest outset, the authors should be con- purchasing, and distribution issues. Disclosure to describe the legislation. gratulated. The report will provide data Many of the financial management Such a step will then help ensure that for further research, and much concerns that arise in the private sector any complainant first decides on public administrative action, for many years or in the public enterprises are also interest grounds whether he or she is a to come. It is expected, however, that found in the central departments and whistleblower and asks for protection the impact on private and public sector agencies of government. The report under the legislation. Otherwise we honesty will be much more immediate. draws conclusions that impact on the will have many people with a Nevertheless, the research as management of whistleblowing cases, complaint about their boss or the reported does show discrepancies including the legislation for the public organisation claiming that they are a between its surveys, and in particular, sector. It would be worthwhile, whistleblower (as would appear to the responses of case handlers and therefore if the report reached a have happened in the Employee managers show a considerably higher broader series of conclusions by Survey) incidence of problems facing whistle- devoting some effort to examining The suggested definition is blowers who report wrongdoing (up to how private sector whistleblowing Whistleblowing is the revealing of 90%) than do other surveys. This may might be managed. information by any person associated be due to the project's limited defini- with an organisation, of illegal, tion of whistleblowing, which includes Who can whistleblow and who is a immoral or illegitimate practices by personal complaints, and is not whistleblower? The definition that organisation that are against the confined solely to public interest disclosures. There may, however, The definition of whistleblowing on p3 public interest and that otherwise would not become public knowledge, be other causes behind the discrepan- uses the Miceli and Near definition cies. Whistleblowers Australia should which confines the practice to former Further research dispute the current findings until and current organisation members. clarified by further research. Organisation members are later The report has identified a number of defined as employees, volunteer issues which are not clear, and has also Dr. Peter Bowden is lecturer in ethics workers or contractors. The definition flagged the need for further research. at the University of Sydney and a also appears to include people who are These comments strongly support that member of the Executive Committee of complaining about interpersonal and need. the Australian Association of Profes- workplace problems. sional and Applied Ethics.

THE WHISTLE, #53, JANUARY 2008 PAGE 15 Whistleblowers Australia business

The 2007 annual tioned were that the study’s report was of The Whistle, a copy of which had draft, inviting comments, and that it been made available to all present conference needed to undertake further research immediately prior to the meeting. Peter A report by Peter Bowden before definite conclusions were made called for the previous minutes as the subject of media releases. published to be accepted as a true and Held on 24 November in Sydney, there accurate record. is little doubt that the 2007 conference started breaking new ground on a Draft Minutes of the 2007 Proposed: B Pasamonte. Seconded: P number of issues facing Whistleblow- Bowden. Carried. ers Australia. Arguably the most Whistleblowers Australia significant was the inclusion of Annual General Meeting 5 (1). Business arising. freedom of information concerns. WBA president Peter Bennett spoke Parramatta, Sydney NSW Item 10(iv): ‘Whistle while they work’ about the problems that journalists face 25 November 2007 research project. when they refuse to reveal their Greg Mc Mahon asked whether sources, and in particular of Allan 1. Meeting opened 9.15am. WBA had written to AJ Brown, to Kessing who revealed the flaws in Chaired by P Bennett, President. advise that the involvement of individ- Australian airport security to two Minutes taken by C Kardell, Secretary. ual members of WBA with the project journalists from The Australian: should not be taken as an endorsement Martin Chulov and Jonathan Porter. 2. Opening statement: Peter Bennett of the project or its outcomes by WBA. Every Australian flies more safely welcomed everyone to the AGM. He Peter Bennett said it had not been done thanks to Kessing’s risking imprison- opened by noting we had a change of formally, but that Peter Bowden, Mary ment to expose weak airport security. government yesterday, urging every- Lander and he had made that point A session led by Peter Timmins on one to see the election win by Federal very clear in all of their dealings with the media’s right to know campaign Labor as another opportunity to keep the project. identified many ways in which pushing for federal whistleblowing Australian politicians and public legislation. He suggested it fitted in 6. Election of Office Bearers servants block the basic building well with Labor’s promise to amend Peter Bennett stood aside for Brian blocks of a modern democracy — the FOI legislation and generally to Martin to proceed as the returning freedom of information. improve the transparency and account- officer. The conference tackled three other ability of government. important issues: WBA’s suggestions (a) Position of National President on the ways in which a whistleblower 3. The attendees were B. Martin, P. Peter Bennett, being the only nominee, can maximise his or her safety when Sandilands, C. Kardell, P. Bowden, J. was declared elected. they blow the whistle, the desirable Challita, S. Higgins, J. Holland, M. content of whistleblower legislation Marshall, G. Turner, K. Smith, K. (b) National Executive positions. and finally the need for private sector Sawyer, S. Sinclair, B. Steele, P. The following, being the only whistleblower protection. All were Bennett, B Holden, J. Pezy, S. Pezy, J. nominees, were declared elected: accepted, along with FOI, as repre- Lennane, G. McMahon, C. Devine, B. senting additional directions in which Pasamonte, S. Hickey, J du Varrens, F. Vice President: Jean Lennane (NSW) WBA will need to move. Feliks, S. Carroll, J. Tang, R. Sullivan Junior Vice President (and Interna- Perhaps the most controversial and J. Regan plus two visitors and two tional Director): Brian Martin session was devoted to the Griffith names withheld. (NSW) University whistleblower research Secretary: Cynthia Kardell (NSW) project. There was a strong minority 4. Apologies were received from M. Treasurer: Feliks Perera (Q) who believed that the finding that a Bersinic, G. Blamey, L. Blaney, Z. National Director: Greg McMahon (Q) much smaller percentage of whistle- Cassar, A. Clifton, R. Cumming, L. blowers suffered reprisals than Fogg, S. Jarosek, G. McEvoy, K. (c) National Committee Members (6 generally believed was (a) wrong and Perston, M. Vogt, S. van de Wiel, L. positions) (b) damaging to efforts to strengthen O’Keefe, M. Lander, D. Fry and K. The following, being the only whistleblower protection. The confer- Potter. nominees, were declared elected. ence concluded that the problems with the Griffith research possibly lay in the 5. Previous Minutes AGM 2006. Geoff Turner, Communications inclusion of people who had personal Director (NSW) complaints in its definition of a Peter Bennett referred the meeting to Stan van de Wiel, Committee member whistleblower, i.e. the Griffith study the previous provisional minutes (Vic) was not confined solely to public published in the January 2007 edition Shelley Pezy, Committee member interest whistleblowing. Also men- (SA)

PAGE 16 THE WHISTLE, #53, JANUARY 2008 Mervyn Vogt, Committee member Excess of expenditure over income for really virtuous at the year’s end, even (Vic) year, ($493.18) if it what she had done wasn’t anything Charmaine Kennedy, Committee other than the ordinary stuff. Like the member (WA) Balance Sheet at 30 June 2007 two Peters, Jean, Kim, Brian, Feliks, Toni Hoffman, Committee member Greg and Geoff, she had responded to (Q) Accumulated fund at 1 July 2007, many requests for information and $8,949.58 support. Plus she maintained the Peter welcomed new members Less net expenditure for 2007, $493.18 membership register and got The Charmaine and Toni and urged the Total, $8456.40 Whistle out to everyone. The last was committee to work for the group’s made possible by her 85-year-old advancement throughout 2008. He Assets father Jim, who had charge of the noted that under the Constitution Deposit paid November 2007 envelope stuffing, stamping and branch presidents — currently John AGM/Conference, $600.00 posting, all ably assisted by his dog Pezy (SA) and Peter Bowden (NSW) Balance at bank, $7,856.40 Danny. The meeting thought it should — were automatically members of the Total, $8,456.40 extend its thanks to Jim (and Danny). national committee. Greg commented amid general laughter there was just Feliks reported the deficit last year was 9 (3) Report from South Australia. enough of a gender balance to keep the due to the subsidy for the Brisbane men in check. AGM and only 70 renewal subscrip- John Pezy described the SA branch tions being received by the end of operation as a network of support: he 7. Position of Public Officer June. The subscriptions had picked up said most of the requests for informa- since then, but members were urged to tion and assistance, with few excep- Peter informed the meeting that Vince do what they could to increase and tions, came from aggrieved members Neary was prepared to continue in the maintain the membership. of the public or employees. position of Public Officer, if required. Peter and Brian took the opportunity Of the exceptions, he cited a dentist He thanked Vince on behalf of the to thank Feliks for a smooth and who had reported a radiation incident group for his willingness to continue in reliable job well done. and a medical physicist who had been the position and asked the meeting to Peter called for the treasurer’s bullied after reporting a failure to deal nominate two members to sign an report to be accepted as a true and with the consequences of calibrating a authority, prepared by V Neary, to accurate statement of accounts. treatment machine incorrectly. He lodge the required documents and Moved: J Lennane. Seconded: B continued to work through the issues annual fee with the NSW Department Pasamonte. Carried. with both of them. of Fair Trading. John reported on difficulties arising 9. REPORTS from the branch’s involvement with Motion by B Martin to nominate J the Angela Morgan case. Lennane and C Kardell so to do. 9 (1) The President’s Report. Seconded: F Perera. Carried. Feliks 9 (4) Report from Queensland provided a cheque to cover the Peter reported that other than the required fee. things we all knew about, like the Greg McMahon reported the long- correspondence that had gone out for standing Heiner affair had got a boost 8. Treasurer’s Report WBA and his attendance at the Griffith from the articles published in the NSW University project seminars, personal press by Piers Akerman and Chris The treasurer, Feliks Perera, tabled a issues had got in the way of him doing Pearson, largely because Kevin Rudd financial statement ending 30 June much more. But he said all that was was Chief of Staff in the Goss 2007 and briefly stated the details as behind him and “today is day one of government at the time when Cabinet follows: having a go.” decided to shred the documents from Peter revealed he had some real the Heiner Inquiry into a pack rape at a Income problems with the draft report of the hostel. But also because Kevin Subscriptions, $3,330.00 “Whistle while they work” project, Lindeberg, who blew the whistle on Donations, $600.00 which he said he’d leave until later, Cabinet’s decision, recently convinced Total, $3,930.00 under other business. In his opinion the six eminent jurists to sign a petition system didn’t work well for whistle- condemning the Cabinet decision and Expenditure blowers and counting whistleblowers calling for an inquiry, and new legisla- Whistle production costs, $2,487.58 in with those who had a personal tion to stop it ever happening again. Return to branches, $500.00 grievance didn’t help anyone, least of The Whistleblowers Action Group Brisbane AGM Subsidy, $1,148.30 all the whistleblowers. gave Col Dillon, former police officer, Book account, $236.20 well known whistleblower and Annual return fees, $43.00 9 (2) The Secretary’s Report. Queensland public servant, the Bank charges, $8.10 Whistleblower of the Year Award. Col Total, $4,423.18 Cynthia said she, unlike Peter, had to became involved in the more recent do a certain amount and so could feel Palm Island “death in custody” affair

THE WHISTLE, #53, JANUARY 2008 PAGE 17 and resigned because of it. He is now report of the review was still sitting on before booting them across to the at the University of Queensland and Premier Morris Iemma’s desk. A year committee. He asked the committee to working on the Heiner matter, which later! The parliamentary secretary told keep him in the loop, so he can know had its origins in the pack rape of a him the review has picked up on just whether or not the inquiry has been young Aboriginal girl at a youth about all of our recommendations. dealt with. hostel. Gordon Harris, former police Peter’s day job is lecturer and Some minor changes had been made officer, whistleblower, WAG Chair researcher in ethics at the University of to the website and it was now being and now family law lawyer is repre- Sydney. He gives one lecture per week used to advertise things like the annual senting the Aboriginal girl and it looks on the ethics of whistleblowing, and he conference and AGM. The site is like the investigation will go ahead. is working on the other teachers, hosted by a voluntary organization hoping to increase the classes across known as suburbia.org.au, which keeps 9 (5) Report from Victoria. other faculties and universities on the our costs down, although the NSW ethics of whistleblowing. Peter has branch does make an annual donation. Kim Sawyer reported Keith Potter continued to be involved with the He assisted Cynthia with setting up the continues to lobby government and Griffith University ‘Whistle while they member’s email list, which we intend others about Albert Lombardo and Bill work’ project. to use to develop our capacity to Toomer. Bill has swapped bricks and Cynthia continues to convene the network and keep in touch with the mortar for a houseboat and is weekly caring and sharing meetings on membership. somewhere on the Murray. No one has Tuesday nights at Balmain. Peter, seen Mick Skrijel in over a year. Kim Brian, Jean and Cynthia continue to 9 (8) The Whistle is concerned about his health and answer the phones. Geoff fields suggested the National Executive enquiries sent by email to the address Brian Martin described how he consider writing a letter recognising [email protected], essentially just drops the articles or the his contribution to whistleblowing forwarding them on to the others, as best of the available media stories, over almost 20 years. required. many of which are supplied by Mary In recent times Ray Hoser has only Cynthia and Jean reported they no Lander and by associate editor Don been seen in the press. Ray identified longer represent WBA on the Internal Eldridge, into the set format document, police corruption, leading to nearly Witness Advisory Committee (IWAC) produces a draft, sends it to Patricia 800 police being forced out of the meetings held by the NSW Police. It and Cynthia, who proofread it, then force in the period 1995-1997. The hadn’t met for one reason or another emails the final draft to the print room Victorian branch continues to get calls for over a year, when the NSW Police at the NSW Law Society. Then from whistleblowers in the police. decided recently to discontinue it. Cynthia collects them and gets them Whistleblowing issues have figured IWAC oversighted the cultural and out to the members, with the help of prominently in the Victorian press other reforms initiated by the Wood Jim. Feliks draws a cheque for his and throughout the year. One example is Royal Commission in the mid 1990s. Brian’s signature and sends it off. the incident where a lawyer was shot The NSW Police say IWAC is no Brian said it was a well organised when he went to the aid of a woman, longer required now that the IWSU production and that email discussions who was stabbed, which raises some (the whistleblower protection unit) between committee members about really tricky issues about whether and comes under a new command. It whistleblowing had proved to be a when a bystander should get involved. doesn’t follow, of course and no one reasonably good source of material for Brenda Pasamonte reported Mervyn seems to be able to explain it: certainly The Whistle. But he said it was no continued to convene about ten not Commissioner Scipione, who we replacement for an article from one of (monthly) meetings each year at wrote to at the time. We formally the members. He urged all of us to put Frankston, as advertised on the back of refused to attend a morning tea to pen to paper more often. The Whistle. She said attendances tend paper over the cracks with a bout of to fluctuate, but can on occasion go as nostalgic reflection and congratulation. 10. Other Business. high as twenty. Mervyn has continued We were dismayed to receive an to support army whistleblower Nathan engraved memento thanking us for 10 (1) whistleblowers.org.au website Moore. being on the IWAC since its inception in 1996. It is not a reason for celebra- Julé du Varren suggested how the 9 (6) Report from New South Wales. tion. We are concerned it is a case of website could be used to post informa- full steam ahead for the NSW Police: tion and media releases, service the Peter Bowden reported the branch on course for another royal com- email traffic better and improve hadn’t been involved in any major mission. communications generally. Julé had outside activity, since he appeared some expertise in this area and was before the Parliamentary Committee 9 (7) Communications Report willing to assist. on the ICAC (Independent Commis- Peter Bennett intended to produce sion Against Corruption) for the NSW Geoff Turner reported that email some copy on client professional branch in 2006. Both he and Cynthia requests for help remained steady, privilege and the need for federal made written submissions. Peter much like last year. He usually whistleblowing legislation so it could checked only recently and the draft provides only general information be posted on the site.

PAGE 18 THE WHISTLE, #53, JANUARY 2008 10 (7). Draft report on the ‘Whistle the report; get it right and post it on 10 (2) Private/public sector whistle- While They Work’ research project. our website. blowing In the event the motion was lost, 7 Greg still has reservations about our for and 15 against, with the meeting Kim Sawyer was putting together an relationship with the Griffith Univer- deciding to adopt the suggestion put up article about the US False Claims Act. sity research project, and he is by Brian. Cynthia is to produce a draft Kim wants to educate WBA and the concerned about the likely impact of statement about the use of the Miceli wider public about why a false claims the current draft of the report, which and Near definition of whistleblowing. act, together with a whistleblower was the subject of a presentation by protection act, is in his view the only Chris Wheeler, the NSW Deputy 11. Close of business real option for advancing public and Ombudsman. (Note neither the There, being no other business, Peter private sector whistleblowing under presentation not the draft report closed the meeting after thanking the same legislative umbrella. He include the actual data set out as a part everyone for their valuable time and explained how it would reap huge of the report). He moved a motion, enthusiastic participation. financial and other rewards for seconded by Karl, to express a ‘no government, society and whistleblower confidence’ vote in ‘the methodology Meeting closed at 1.15pm. See you all alike. of the study, the interpretation of the again in Melbourne next year. data and the conclusions being 10 (3) Privacy legislation offered’. He was concerned that the draft ignores past research, like that Sabina Sinclair is concerned at the way done by Bill de Maria, dilutes the harm the privacy legislation is being used by to whistleblowers by categorizing their government agencies to wrongly deny disclosures as the same as grievance access to information that would complaints and it appeared to be biased otherwise be available under the toward showing the existing legislation freedom of information act in the was working well. public interest. Joanna disagreed with the motion, seeing the draft report as something 10 (4) AGM 2008 that needed amendment rather than anything else. Jean Lennane explained Cynthia informed the meeting it was how she thought there was merit in Victoria’s turn to host the AGM in both of those positions. Cynthia 2008. She described how planning for thought it severe but that it needed to the AGM needed to fit in with each be said, that the use of the Miceli and issue of The Whistle, the first being the Near definition of whistleblowing, January, then the April and July which omits any requirement for the editions. Kim Sawyer undertook to disclosure to be in the public interest, take the issue up with Lori, Mervyn allowed for a much greater number of and Stan and confirm preliminary respondents, and it meant that the details in January for publication in the study was a study of the complaints April issue. handling systems presently operating in the relevant jurisdictions, rather than 10 (5) Email distribution lists a study about whistleblowing. That further sampling and work was The meeting determined to leave the required to allow the study to distin- current email discussion list as is for guish between the treatment meted out general matters, as it includes members to whistleblowers and those who had and other interested persons, but to simply exercised their right to create and maintain a committee complain about the wrongdoing distribution list for insider specific directed at them. Karl stood by his emails. initial assessment: he conceded he hadn’t seen the data. Kim agreed with 10 (6) Publication of the names of Greg’s concerns: he had no doubt the AGM attendees current draft if retained would be used against whistleblowers. Brian sug- With two exceptions, which the gested a better way of addressing the meeting will respect, the attendees obvious disquiet felt by most of the consented to the publication of their members was to check the data (on names in the draft minutes of the their website) and put together our own meeting in The Whistle. assessment of the data and the draft of

THE WHISTLE, #53, JANUARY 2008 PAGE 19 Whistleblowers Australia contacts Political commentary?

Postal address: PO Box U129, Wollongong NSW 2500 In the October 2007 issue of The Whistle, one of the items New South Wales reproduced in “Media watch” was an article titled “Tragic “Caring & Sharing” meetings We listen to your story, story cries out for an ending” by Piers Akerman, from the 26 provide feedback and possibly guidance for your next few August issue of Sydney’s Sunday Telegraph. The article steps. Held every Tuesday night at 7.00pm, Presbyterian attacked Kevin Rudd over his possible role in the Church Hall, 7-A Campbell St., Balmain 2041. Queensland cabinet decision to shred the Heiner Contact: Cynthia Kardell, phone 02 9484 6895, fax 02 - documents. (Those not familiar with this notorious case can 9481 4431, [email protected] find numerous documents by putting “shredding of the Website: http://www.whistleblowers.org.au/ Heiner documents” into a search engine.) Goulburn region: Rob Cumming, phone 0428 483 155. In the lead-up to the federal election, Akerman wrote Wollongong: Brian Martin, phone 02 4221 3763. repeatedly about Heiner and Rudd’s possible role; since the Website: http://www.uow.edu.au/arts/sts/bmartin/dissent/ Labor victory he has continued to write about them. Many Sydney readers are familiar with Akerman as a vociferous Queensland: Feliks Perera, phone 07 5448 8218, right-wing commentator and would have been able to [email protected]; Greg McMahon, phone 07 3378 assess the article reproduced in The Whistle in that context. 7232 (a/h) [also Whistleblowers Action Group contact] But readers from other states might not have known about South Australia: John Pezy, phone 08 8337 8912 Akerman’s anti-left and anti-Labor track record. Tasmania: Whistleblowers Tasmania contact: Isla Though reproducing Akerman’s article would not have MacGregor, 03 6239 1054 had the slightest influence on the outcome of the election, the question nevertheless arises as to whether The Whistle Victoria should be running politically partisan material during an Meetings are normally held the first Sunday of each month election campaign. at 2.00pm, 10 Gardenia Street, Frankston North. Members of Whistleblowers Australia represent diverse Contacts: Stan van de Wiel, phone 0414 354 448; Mervyn political positions. More generally, supporters of dissent Vogt, phone 03 9786 5308, fax 03 9776 8754. range from the far right to the far left, including some who Whistle oppose all political parties. Therefore, it is to be expected Editor: Brian Martin, [email protected], phones 02 4221 that some Whistle articles will take partisan positions. 3763, 02 4228 7860. Address: PO Box U129, Wollongong Should articles such as Akerman’s be included just like NSW 2500. Associate editor: Don Eldridge. Thanks to other articles? Should they be accompanied by Cynthia Kardell and Patricia Young for proofreading. commentary or disclaimers? Should they be balanced by contrary articles? Or should they not be run at all? Comments welcome.

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

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

PAGE 20 THE WHISTLE, #53, JANUARY 2008