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

Whistle NO. 54, APRIL 2008 Newsletter of Whistleblowers Australia Media watch

Call to beef up law ure investigations — a recommenda- life,” she said. “State Rail not only tion also made by the ICAC report — wants to bury me, they want to dance for whistleblowers and said whistleblowers should be on my grave for daring to speak out.” Jonathan Dart allowed to approach the media. Some of Ms Chand’s allegations Sydney Morning Herald, A spokeswoman for Mr Iemma have been given new currency by a 19 March 2008, p. 10 said the unit was unnecessary because lengthy investigation by the Independ- many of its functions were performed ent Commission Against Corruption. FIGURES reveal a sharp decline in the by government agencies. Evidence during public hearings number of complaints made against But Ben Blackburn, the sex assault has described a culture of claiming pay public officials in recent years, leading victim who blew the whistle on for unworked periods in a widespread to calls for laws protecting whistle- Orkopoulos, said the protected scam known within the organisation as blowers to be bulked up. disclosure laws were “completely “job and knock”. Two of the state’s best-known ineffective. Look at what happened to RailCorp has used the law firm whistleblowers — responsible for [Orkopoulos’s electorate officer] Clayton Utz for this matter and a dis- exposing the pedophile Milton Gillian [Sneddon] and myself — crimination case Ms Chand brought in Orkopoulos and the Bega doctor, there’s just no protection there at all.” the Administrative Decisions Tribunal. Graeme Reeves — openly criticised Since March 2005 RailCorp has whistleblower laws yesterday, saying spent $291,612.77 on legal fees on the they offered little protection. unfair dismissal case alone. It is Whistleblowers Australia’s NSW Whistleblower’s unclear how many thousands more it president, Peter Bowden, yesterday life in ruins has spent on her discrimination claim. sent a letter to the NSW Premier, Linton Besser “I was just so angry and disap- Morris Iemma, calling for the immedi- Sydney Morning Herald, pointed. My returning [to work] would ate introduction of the reforms tabled 15 March 2008, p. 5 have cost a 10th of the $300,000 they by the Independent Commission have spent,” she said. Against Corruption in a report to RAILCORP has spent almost Last October the Administrative Parliament in 2006. $300,000 in a three-year legal battle Decisions Tribunal dismissed Ms The recommendations come as against an employee who blew the Chand’s discrimination case. It figures from the State Ombudsman’s whistle on corruption and fraud. Now decided that several incidents she office reveal a decline in the number of it is appealing the $16,000 unfair described fell outside court time protected disclosures made in the past dismissal compensation she was limitations. eight years, from 153 in 2000 to 76 last awarded by the courts. She has appealed, and a decision year. Midway through 2002, as a on her appeal is due within the next In his letter, Dr Bowden said the revenue protection officer, Bimla few months. “problems of Wollongong Council and Chand told management about serial Ms Chand’s lawyer, Michael the ‘Butcher of Bega’, for instance, timesheet fraud and an overtime scam Vassili, said the chronology of both would likely have been stopped long that may have cost the organisation cases was all about “shooting the before they reached the stage they did thousands of dollars. For this the 48- messenger”. if the recommendations of the year-old single woman says she was “The evidence shows that they committee had been adopted.” subjected to years of harassment and spend very little effort in dealing with The commission’s review found bullying by colleagues. the accusations of corruption. This is some disturbing holes in the legisla- The final act of humiliation, highly unusual. There is no commer- tion. People making complaints to the however, was her dismissal in 2005, cial reason they would embark on the Health Care Complaints Commission, on what the courts later deemed were appeal. It fits squarely within Bimla’s for instance, are not to be extended spurious psychiatric grounds. claim of being victimised because she “whistleblower” status under the After tax, Ms Chand was to receive was whistleblower. The decision to Protected Disclosures Act. $11,381 from RailCorp when the appeal is obviously a decision based on The head of the Medical Error Australian Industrial Relations politics.” Action Group, Lorraine Long, who Commission ruled in December she RailCorp based its case on a helped expose the disgraced doctor Mr had been wrongly dismissed. psychiatric report that it commissioned Reeves, said the current laws protected But now RailCorp has appealed to which said Ms Chand suffered incompetence and malpractice. recoup this amount in an act Ms Chand “probable paranoid personality “Anyone who raises their head believes is emblematic of an organisa- disorder” and was not fit for work. above the parapet can pretty well kiss tion bent on silencing its critics. Three previous reports from the same their job goodbye,” she said. “With all the talk from politicians psychiatrist had found she was capable Dr Bowden called for a new unit to about whistleblower protection, of returning to work, and the diagnosis be established in the Ombudsman’s blowing the whistle has ruined my office to co-ordinate protected disclos-

PAGE 2 THE WHISTLE, #54, APRIL 2008 was contradicted by three independent On Tuesday we published a police of diners, it reverses a worldwide experts. list of the 100 most violent pubs and trend. After the Herald’s campaign on The Australian Industrial Relations clubs in the state. The Bureau of Crime the subject, there was a promise to do Commission judgment said Ms Statistics and Research was happy to better, but with the lapse of time the Chand’s behaviour in the last year or hand over the list of assaults it Government’s will has weakened. so she was with RailCorp was compiled using police data. But the Instead of revealing all infringements “belligerent” and “obstructive”. NSW Police continue to oppose a and letting the public decide where to Medical experts had said it was in Herald freedom of information eat, only the worst offenders will be keeping with someone under intense application for a more comprehensive named. Here, secrecy is a recipe for stress. list which attempts to link all alcohol- poor hygiene. Why should any but the “The evidence is them dealing with related crimes to where those involved very worst offenders clean up their her conduct of complaining as a were last drinking. On Wednesday and act? As the Herald has found time and medical basket case as opposed to Thursday we revealed that a former again, freedom of information legisla- them seriously dealing with her inspector in charge of the linking tion is virtually a dead letter. complaints,” Mr Vassili said. project had left the police, where he The starting point for policy- Ms Chand said she would continue had opposed the Herald’s request, to makers and bureaucrats of any kind is to fight on, despite spending almost work for the Australian Hotels that everything must be kept secret, $90,000 of her own money in the Association. His first task: to keep the never mind who or what is damaged courts. But she would tell present same data out of the media. by the secrecy. Unless scandal forces RailCorp employees “not to report Today we publish the story of a information into the open, it will be corruption and don’t go down the path woman who made allegations of concealed. The only other way I went”, she said. “Because it is four malpractice at RailCorp, only to be Government information will regularly years out of my life without work and hounded out of her job, and pursued emerge is when it is leaked to damage with no prospect of getting any work. through the courts. some powerful person or group’s Basically my career has come to a A single dark thread unites these opponents. grinding halt as a result of acting in the stories: our State Government, its We get the politicians we deserve, best interests of my employer and bureaucrats, and our society in general, of course. The Government is allowed NSW.” tolerate and encourage attempts to to behave this way in a position of A RailCorp spokeswoman, Jo silence critics and suppress infor- public trust because we as a society Fowler, said she could not comment on mation. tolerate such behaviour and behave the legal proceedings, but added: “At When the SARS virus struck similarly ourselves. no stage has the ICAC requested southern China late in 2002, countries Unwelcome though the thought is RailCorp to investigate any claims Ms around the globe were critical, and in a mature democracy, Australians are Chand has made at any time nor is rightly so, of Chinese authorities’ so used to secrecy and comfortable RailCorp aware of any investigation by attempt to suppress evidence of a with bullying and subterfuge that many the ICAC into any claims Ms Chand dangerous epidemic. It took three of us seem to have forgotten the may have made.” months for Beijing to admit the virtues of openness and honesty. presence of the new virus — in which Pressure groups insist that factual time it had spread, and infected many information about their performance individuals, some of whom died. should not be released. Teachers will Secrecy and us: Australians joined the criticism. Yet not have their schools’ performance society has grown we tolerate practices which, if their rated. Medical bureaucrats oppose accustomed to the gag consequences are not as deadly, spring league tables of hospitals. Why? from the same perverse and destructive Because the public might make up its [editorial] motivation: to avoid public embar- mind — and act accordingly. It is a sad Sydney Morning Herald, rassment or financial loss. That end is reflection on 21st century Australia: 15 March 2008, p. 38 pursued regardless of almost any we see the gag so often applied that we damage to the greater public good. have learnt to like it. THIS has been a poor week for open It is a long tradition, as the story of government. On Monday the Herald the Hunters Hill uranium smelter published the findings of a secret shows. A memo in 1977 instructed report by secondary principals showing Health Commission staff to “stall and Principles of liberty Anglo-European families were be non-committal” if asked about avoiding government schools. It is an treated with disdain radiation levels at the former site, important issue — sensitive, certainly, Brian Toohey which had been sold off as residential but needing public scrutiny and debate. Weekend Australian Financial Review, land. Its ramifications spread beyond 21-27 December 2007, p. 78 The tradition lives on in the State schools to broader questions of social Government’s continued cover-up of cohesion. The State Government Free societies don’t allow inquisitorial the findings of its restaurant health received the report in February 2006 commissions to threaten blameless inspectors. In putting the interests of — and has sat on it ever since. witnesses with six months’ jail. Nor do restaurant owners ahead of the interest free societies pass laws stopping an

THE WHISTLE, #54, APRIL 2008 PAGE 3 independent judiciary from putting a person who refuses to comply with the not resort to its special questioning brake on power-hungry executive extraordinary questioning powers powers. A NSW judge found that two governments. granted to the Australian Security ASIO officers had kidnapped and Violations of core principles Intelligence Organisation in 2001. falsely imprisoned Izhar ul-Haque, underpinning liberty were once These powers, for example, allow who had attended a training camp in regarded as confined to nasty auto- ASIO to compel people to reveal the Pakistan before leaving after only three cratic states. But they have become so location of someone whom the CIA weeks. commonplace in Australia as to barely wants to assassinate or torture. The camp was not run by a cause a ripple. The complacency Apart from problems of mistaken designated terrorist organisation at the extends to those who usually stress the identity, no one should be compelled time. On his return to continue his importance of individual liberty to to supply such information or spend medical studies, ul-Haque told capitalism. five years in jail for exposing demands Australian officials what he had done. On December 13, a new law was to enable such illicit activities. Neither ASIO nor the Australian proclaimed in NSW that prevents the Former ASIO officers privately Federal Police showed any further actions of “protected persons” associ- warn that these changes in effect create interest until several months later when ated with the World Youth Day a secret police force. They say that in a they asked ul-Haque to become an Authority from being “challenged, democracy no one should be able to informer against other Muslims in reviewed, quashed or called into detain anyone, or compel them to Sydney. question before any court of law or answer questions, unless they are made Judge Michael Adams said ASIO administrative review body.” The new accountable by having to reveal their officers threatened ul-Haque with law is modelled on the way normal real names. Unlike normal police, “serious consequences” if he didn’t co- safeguards are removed in the Terror- ASIO officers can legally use pseudo- operate. The court heard AFP officers ism (Police Powers) Act of 2001 — nyms. This was fine when they had told ul-Haque they weren’t worried the underlying premise being that almost no executive powers to abuse. about what happened in Pakistan. After NSW’s finest can be trusted never to But not anymore. he refused to cooperate, he was abuse the extraordinary powers they This secrecy extended to a recent arrested. But the case collapsed in now have over all citizens during a court hearing in which an ASIO court. counter-terrorism operation. member, named “Officer 1,” appeared The importance of an independent World Youth Day is a misnomer. It by video link as a witness called by judiciary and a sceptical media was is a six-day jamboree for Catholic News Ltd in a defamation action highlighted even more forcefully in the youth (generously defined as those brought by Sydney man Mamdouh earlier case of Mohamed Haneef. The under 35) scheduled for next July in Habib. The ASIO officer gave case collapsed after the AFP could not Sydney. The NSW and federal evidence about interrogating Habib present a jot of credible evidence. Yet governments are paying $41 million as after he was arrested in Pakistan and AFP commissioner Mick Keelty is still compensation for the way trainers are flown by the CIA to Egypt. complaining about how Haneef’s being evicted from Randwick The former chief economist for barrister demolished the police case by Racecourse for 10 weeks to allow HSBC in Australia, Jeff Schubert, who revealing accurate information preparations for a sleepover by young has followed the case from Russia, belonging to his client. Catholics followed by a papal mass. says: “For all we know, Officer 1 Keelty has gall. A senior officer The total taxpayer subsidy is more than could be an actor! If not, how did had earlier “leaked” false claims $95 million — an Australian record for News Ltd find him? Presumably, it intended to damage Haneef. If he a religious event. asked ASIO to provide him as a keeps his job, Keelty should be put on A week ago, The Sydney Morning witness, knowing full well that he a much tighter leash. And the role of Herald revealed that an innocent would readily tell the story it wanted the courts in curtailing abuses of person was recently hauled before the the court to hear. Sitting here in my executive power should be fully Australian Building and Construction Moscow apartment, I wonder what restored. Commission and interrogated over News Ltd [editorial executives] would several hours about a minor scuffle he have to say about this practice in a had witnessed between a union official Russian court.” and a building site manager on a Habib was reportedly tortured for Whistleblower turns Melbourne footpath. The witness faced several months in Egypt before being down new job offer six months’ jail if he refused to answer flown to Guantanamo Bay and eventu- Edmund Tadros and Andrew Clennell questions or told anyone about what ally released without charge. A free smh.com.au, 18 March 2008 happened in the hearing. society would establish a proper Police don’t have these powers. inquiry into the role of Australian The woman who blew the whistle on Nor, in a free society, should inquisito- intelligence agencies in the false former NSW minister and convicted rial commissions when examining a imprisonment and torture of someone pedophile Milton Orkopoulos and was trivial incident over which no charges who has not been charged, let alone then fired by NSW Parliament has have been laid. convicted, of a criminal offence. rejected a new job offer from the At least this law does not provide Fortunately, a court was able to do Speaker of the house. for five years’ jail for an innocent its job in a recent case where ASIO did

PAGE 4 THE WHISTLE, #54, APRIL 2008 Gillian Sneddon, 51, is furious Her comments come as federal a judicial odyssey that will likely after the Speaker of the NSW Parlia- Liberal senator Bill Heffernan told continue for several more months. ment, independent Richard Torbay, smh.com.au that he was disgusted at In 2004, the office of U.S. Labor issued a statement at the weekend the “moral cowardice” shown by the Secretary Elaine Chao threw out the saying he was willing to have Iemma Government over Ms verdict for Knox on technical grounds. “ongoing discussions” about possible Sneddon’s treatment and has offered to On behalf of Knox, PEER appealed to employment for her. assist her find employment. the Fourth Circuit and won; the case She said it was too late to now “It’s just a disgrace for people to was remanded back to Chao’s office offer her a job as she no longer trusted treat her as a traitorous person,” Mr for disposition. In 2006, the Labor her former employer, the NSW Heffernan said. Secretary found new technical grounds Parliament. Ms Sneddon said Mr Heffernan to rule against Knox. PEER appealed The Speaker admitted yesterday he called her at the weekend offering and on May 23, 2007, the Fourth issued the statement and job offer after support and telling her “the cavalry has Circuit again ruled for Knox and he spoke to Premier Morris Iemma but arrived”. remanded it back a second time. denied that Mr Iemma had a hand in In its latest action, on August 30, the statement. 2007 the Labor Department dismissed The Herald revealed on Saturday Knox’s complaint for a third time on that Ms Sneddon’s employment as an Whistleblower undergoes new grounds — that the verdict was electorate officer was terminated by ordeal by appeal not supported by the record — that the NSW Parliament on February 22, Third trip to U.S. Fourth Circuit for could have been raised by Sec. Chao’s the day she first testified against Park Service asbestos hero staff attorneys years ago. Orkopoulos. YubaNet.com, 2 February 2008 “Under the Bush administration, a Yesterday, she said: “I didn’t want by Public Employees for whistleblower must survive the torture to be made redundant. I wanted to get Environmental Responsibility (PEER) of the damned to get justice,” stated well and get meaningful employment. Adam Draper, PEER staff counsel, It’s to save face. It’s not a genuine The Bush administration is putting a who filed the latest appeal to the offer.” whistleblower through an eight-year Fourth Circuit. “Let’s hope that the She said the stress, which has ordeal by appeal to finally win his third time is the charm for Bill Knox.” caused her to be admitted to hospital case, according to court filings posted The asbestos problem that Knox and almost led her to suicide, was today by Public Employees for exposed at the Harper’s Ferry Job brought on by being ostracised by her Environmental Responsibility (PEER). Corps Center has still not been fixed, colleagues, the state Labor Party and One of the nation’s most conservative however. Workers, students and the NSW Parliament after she alerted appellate courts has twice unanimously members of the public who were and police about Orkopoulos in October overruled Bush administration objec- are exposed to friable asbestos have 2006. tions to the whistleblower’s claims but not been examined for adverse health Last week Orkopoulos was now the case is going back to the U.S. effects. Moreover, none of Knox’s convicted on 28 charges, including Court of Appeals for the Fourth supervisors received even a reprimand having sex with three boys and Circuit, based in Richmond, for yet a for their response to the situation. supplying them with drugs between third time. “Bill Knox’s experience is a text- 1995 and 2006. The case involves a National Park book case of what is wrong with our Ms Sneddon said that she was told Service safety officer named William system for protecting environmental she would be made redundant after the Knox who, in 2000, reported an whistleblowers,” added Draper. “From 2007 election but this did not happen asbestos problem at the agency’s Job the point of view of workers’ rights, until February of this year. Corps Center in Harper’s Ferry, West this Secretary of Labor should be re- Mr Torbay said Ms Sneddon’s case Virginia. In response, the Park Service titled Secretary of Toil and Trouble.” was “unfortunate and disappointing” first tried to fire Knox and, when that but denied it was caused by the NSW proved unsuccessful, cut his pay, Parliament. transferred him and reduced his duties. He said he sent her a letter yester- Knox filed a whistleblower Wikileaks and day offering to meet her in person to complaint under the Clean Air Act. Internet censorship: discuss her grievances. After a 29-day hearing, a federal a comparative study Mr Torbay said that Ms Sneddon administrative judge ordered Knox would be given a standard payment of reinstated and awarded punitive Jonathan Werve $65,000 as part of her termination and damages in the amount of $200,000, Director of Operations, that she was still clear to pursue legal one of the highest such awards against Global Integrity action. a federal agency, citing “outrageous” 19 February 2008, reposted from Ms Sneddon said: “What I wanted misconduct by the Park Service in The Global Integrity Commons them to say is ‘We’re proud of what response to Knox’s “brave, dedicated you’ve done, and what can we do to and conscientious public-spirited” Using data from the Global Integrity help you get better and get back into reports by Knox. That ruling launched Index, we put a U.S. court’s recent employment’.” order to block access to anti-corruption

THE WHISTLE, #54, APRIL 2008 PAGE 5 site Wikileaks.org into context. In China. China also uses technology message boards and the formerly- summary: the Wikileaks.org shutdown to discourage content creation, ruling party Thai Rak Thai website is unheard of in the West, and has only deploying cute animated police after taking over the country in been seen in a handful of the most characters (pictured below) to 2006. But the junta’s censorship repressive regimes. Good thing it remind Internet users they are cops work to keep the thinnest doesn’t work very well. being watched. appearance of tolerance — Starting in 2007, Global Integrity message boards were allowed to added specific questions about Internet reopen under the condition that censorship to the Integrity Indicators, they did not “provoke any misun- which are a set of 304 questions derstandings.” Message received. addressing the practice of anti-corrup- tion in national governments. We have So how does the United States fit always held that a free and critical into this picture? media is an essential component of good governance; adding an analysis The court order that muzzled of Internet censorship was an overdue Wikileaks.org (covered here) was refinement. prompted not by the government but • Egypt has limited technical We asked two questions: by a bank registered in the Cayman means to discourage content Islands. The bank used American creation, so it relies on an old- 1. Are Internet users prevented from courts and a compliant domain regis- fashioned technique — harass- reaching political material on the trar to scrub the wikileaks.org URL ment, beatings and arrests. Hala Internet? from the Internet. It is extremely Al-Masry used to publish in a blog 2. Are content creators prevented unlikely that this decision will stand up entitled “Cops Without Bounda- from posting political material to in an appeals court, but the larger point ries” until the government harassed the Internet? is that there is no reason this case her, “unknown people” beat her should even be fought. Wikileaks father, and she and her husband The results of this work are generally should not need a legal team to explain were arrested and signed a encouraging. In examining a diverse to the courts that the First Amendment commitment to shut down the group of 50 countries, a majority earn requires freedom of speech. blog. Similar techniques have shut a full score on both counts. Freedom of The whole event seems to encap- down websites of opposition speech is a widely held right. sulate the constant criticism of govern- parties. Moreover, Internet censorship is ance in the United States: that the • Kazakhstan has little Internet difficult and is often ineffective in government has been captured by capacity. The government uses this suppressing political activity. Most corporate interests, and that the world- to mask censorship — rather than governments, aside from targeted libel leading rule of law and technocratic block sites, it slows them down, restrictions, don’t bother regulating mechanisms in place can be hijacked frustrating the users of political online political speech at all. to serve as tools for narrow, wealthy content into looking elsewhere. interests. The KNB (formerly the KGB) has The many flavors of Internet a special program called Bolat, censorship Online censorship: sounds good, but which slows down, but does not it never works stop, access to sites of terrorist A few countries, however, are deeply organizations. Popular opinion committed to trying to make censor- While there is much diversity in the holds that it is used to slow ship work. On this list in 2007 are style of Internet censorship among the opposition party sites as well. Algeria, China, Egypt, Kazakhstan, world’s worst offenders, one common • Russia has a mixed bag of state Russia and Thailand. Each has its own thread unites them: Internet censorship persecution and neglect, allowing a flavor to the repression of online doesn’t work. Cut off one site, and a rare opening for free expression in speech — Internet censorship is still in thousand more pop up. In China, a country with highly restricted an experimentation phase, and even the censorship online is sparking criticism media. However, the sophistication most aggressive approaches don’t that off-line censorship has rarely seen. of the attacks that do occur is seem to work very well. So Wikileaks.org went offline, but frightening, with hackers singling • Algeria has no firewalls or Wikileaks mirror sites hosted overseas out individual online targets. For filters, but outlaws hosting content hold the same content, and the original instance, the website of Ekho critical of the government, and site is still up and running from Moskvy, a liberal Moscow radio monitors chat rooms for political Sweden (http://88.80.13.160) without station critical of the Kremlin, was speech. its easier-to-type URL. As it turns out, brought down by a DDoS • China is home to 1.3 billion shutting down Wikileaks-the-website [distributed denial of service] people and has a highly scalable has focused our attention on attack last year. technological approach based on Wikileaks-the-idea, which is spreading • Thailand’s military junta extensive content filters known at the speed of light. moved aggressively to shut down satirically as the Great Firewall of

PAGE 6 THE WHISTLE, #54, APRIL 2008 Whistleblowing and workplace. … Even if a subordinate and then snap back into shape to knows of a superior’s transgressions prevent less powerful people from organisational lying (which may be grievous ones), he or doing the same thing.” she may not be able to do anything • “Telling other people that you are Extracts from David Shulman, From about them except at great risk. After insecure or that you lack confidence is Hire to Liar: The Role of Deception in all, whistle-blowing is never called an invitation for them to disrespect you the Workplace (Ithaca, NY: Cornell whistle-blowing unless the person that they will never refuse.” University Press, 2007). whose actions are questioned is a • “The bigger the ego, the harder higher-up — top to bottom whistle- the fall.” Subterranean education as diluted blowing does not even exist as an • “When someone in the office whistle-blowing (pp. 111-112) official category. urges you to confide in him or her, The hierarchical nature of whistle- treat it like a shark asking you to put … people are aware of discrimination, blowing reflects the advantages that a some ketchup on before you jump into but rather than blow the whistle on high hierarchical position has within the water.” discrimination to the press, higher-ups, systems of one-way social control. If • “The most persistent research or internal watchdogs, they blow the higher-ups act deceptively, they are anyone does is always on the subject whistle to colleagues. Blowing the unlikely to arrest themselves. Getting of colleagues’ flaws. Co-workers whistle to colleagues may prevent to position the surveillance camera is a inventory this information as if they guilty knowledge from ever being great advantage when you do not want are the most efficient bureaucrats exposed outside the organization, to capture yourself on tape. Lower- dedicated to a task in the entire world. where perhaps real deterrent actions ranked employees and colleagues are No defect is too minute to escape could be taken. Condemnation is also unlikely to overtly challenge or notice; no psychological profiling too attained at a safer cost and contained report superiors. Unidirectional social off-limits. Whatever a person’s line of internally. The pressures to create a control resonates with the criticism work, they always double as an expert remedy are mitigated by stating the left-leaning criminologists offer that in the character flaws, failings, and “wrongness” of an action to co- crime control efforts center on “crime inability to measure up of their workers. Doing so castigates an enemy in the streets” rather than “’crime in colleagues. Everybody speaks without initiating external social the suites.” Internal policing and social criticism.” control. Internal condemnation can control efforts in organizations center • “Some people flee their displace remedial justice because the on hunting the “street crimes” of responsibilities like vampires avoiding teller exhausts moral indignation lower-level workers, not on deviance sunlight.” without initiating an outside by higher-ups or administrative • “Any system that ends up disclosure. Guilty knowledge is shared patterns within organizations that are punishing responsibility isn’t going to and diffused; subterranean education clandestine noncriminal deceptions. (p. effectively generate it. On a good day, becomes a means of blowing off steam 128) you can interpret this reality as an but not of truly blowing a whistle. In unintentional misfortune; on a bad day, telling the tale, the worker may hope to Some final thoughts (pp. 172-173) you can see it as the absolute intention transfer an obligation for action to the all along. Misunderstanding this is a lie listener, or more likely will look at the While writing this book and thinking served by the notion that managers act of exposing the behavior internally about particularly acerbic points that have an open-door policy and that one as fulfilling the obligation to “do respondents made, I sometimes should come forward if there are something” morally. scribbled down private cynical alarms to sound. Just because you However, an upwelling of aphorisms about workplace culture, invite people to put their heads on the derogatory information, as it spreads somewhat along the lines of a Dilbert- chopping block doesn’t mean that they among workers, may lead to retaliatory inspired version of Poor Richard’s are stupid enough to accept your offer, or remedial action. The ripple turns Almanac. My summary reflections especially after they can see the head into a wave. Spreading derogatory bore sardonic fruit, including: of the last person who did rolling down information in this way, like political • “My advice for surviving the floor.” “leaks,” may in some cases be a means workplace culture: identify what • “The problem isn’t being of building covert support so that when rationalizations your superiors use and paranoid — it’s going public with your an advocate goes public with the then support them to the most craven suspicions.” information, a constituency for change extreme while in their presence.” • “Bitter, seething resentment is the has been built. Identifying what factors • “There is no molehill that some proverbial elephant in the room of enable internal whistle-blowing to turn troublemaker doesn’t want to make professional relations.” into internal change is a worthwhile into a mountain.” pursuit. • “Asking some managers to offer ‘constructive criticism’ about their co- Unidirectional social control (p. 128) workers and subordinates is like giving gasoline to an arsonist.” Organizational higher-ups dictate the • “Rules are elastic — they bend goals of internal policing in the enough to let powerful people slip by

THE WHISTLE, #54, APRIL 2008 PAGE 7 Letters, reviews, articles

Dear members of Whistleblowers could never develop without compliant Rudd’s association with the Heiner Australia, senior public servant administrators in case. the first place. I have absolutely no objection to A rather belated thank you all for the Sadly, those type of people are to persons writing articles in the lead up certificate of Life Membership. It now some degree recognisable today and to an election if they are factual. This hangs on the wheelhouse bulkhead of are amongst us in the public service could be ascertained either by the my riverboat. and judiciary as they were in early editor doing a little research or by the It is the second life membership Nazi Germany and history beyond. editor adding a disclaimer to such bestowed upon me and follows my Keith Potter was not originally a articles. Your choice. mother’s effort in 1935. typical whistleblower and this has I say let the editor continue to run Most often as the phantom member made him unique. He stepped out of articles during an election campaign as absent from meetings, I should deserve the public service mould and registered the public and the membership should the recidivist delinquent award and so a protest against administrative be appraised on any information so under my photo in The Whistle No. 40 immorality. In particular he was they can make an informed vote when I have appropriately printed “you focused upon what was happening to the time comes. prick.” me then, and a long time hence. Keep up the good work. I appreciate There are two Whistleblowers Inevitably, he has become a The Whistle even if I do not attend Australia matters which trouble me, whistleblower in furtherance of his meetings. the first being the limited opportunity resolve to assist not only me but others for wide public recognition to a as well. As with most of us, Keith has Alastair Browne number of members who, at financial been punished and, consequently, so and emotional cost, give of themselves too has his very supportive wife Betty tirelessly and largely unseen to fellow — punished instead of praised by whistleblowers and the wider public. people in high office enjoying false BOOK REVIEW Some of us know who they are and esteem. they deserve community acclaim. Now the second matter which The Courageous Bruce Hamilton is but one who is troubles me has just escaped my inconspicuous and comes to mind. memory so I’ll work on recall for Messenger During my life of now seventy-odd another time and that too is also years I have had only two mentors. troubling me! I know I’m losing “it,” Reviewed by Brian Martin One received a deserved citation for so would that make me smarter than service to the nation; the other, even those who don’t know? Karen is about to see the boss about a more deserving, will probably never I’m currently living on the Murray stuff-up at work. She worries, “Will I receive the same due to his protesta- River practising to be a hermit. Any of be blamed? Should I just keep quiet tions against bureaucratic injustices you are welcome to call on me for a and let the problem get worse?” How and facilitating governments. I refer to cup of tea or a feed of rabbit, fish or can Karen decide the best way to Keith Potter who, evidenced by the wild pig in season. Cheers! proceed? high quality of his prolific and consis- When the news is bad, it takes tent written material in support of Bill Toomer courage to be a messenger. There’s a others, has shown compassion, tenacity M. V. “Gunbower” risk involved in telling the boss about a and stamina beyond anything in my Box 63, Wedderburn Vic 3518 problem, or reporting it to outside experience or imagination. 0428 943 431 agencies. Are there ways to convey the That a citation in public recognition message more carefully, sensitively evades such people as Keith is, to me, In the early 1970s, Bill Toomer blew and persuasively? How can Karen frustrating indeed. The inadequate the whistle on violations of quarantine learn the skills to be an effective measure of success for such effort in regulations in shipping. messenger? terms of government acknowledge- A lot of us would like to know the ment or correcting a wrong is indica- answer, because it might mean a lot tive of public service administrative (Editor’s note In the January issue I less grief for whistleblowers. Persua- cussedness. invited comment about whether to run sive communication won’t always be In matters of public service interest, articles that have a partisan angle enough: in some situations, Karen will the government is subservient to a cosy during an election campaign.) become a target no matter how skilled relationship cementing ministerial she is. But some traumas and disasters pensions. There is never going to be a might be avoided if whistleblowers Just read The Whistle and see you are knew how to convey their message citation conferred upon any person asking for comments re the Piers who would disturb that. more skilfully. Akerman article. Akerman’s article To learn the skills, it’s worthwhile It is also a frightening reminder that was fair dinkum to all who knew about repugnant regimes the world over consulting the book The Courageous

PAGE 8 THE WHISTLE, #54, APRIL 2008 Messenger, whose subtitle is How to worked and what didn’t. The authors’ mounting of a TV program on New Successfully Speak Up at Work. Its goal is organisations in which coura- Zealand One in November 2003, three authors are organisational geous messengers are unnecessary Murder on the Blade? Hunter’s book consultants. The book is a step-by-step because speaking up is routine. is one of several making the claim that guide to talking to the boss with a Amazingly for a book on this topic, there is extreme doubt on Watson’s message that may be unwelcome. there is not a single mention of whis- guilt. They start with the elements needed tleblowing. There are many illustrative The interest to whistleblowers of to make a decision. They tell how to stories, hypothetical but realistic. One this book is the claims it makes about figure out your true message and what is of an employee not doing her share the honesty of the police force in motivates you, assess the risk involved of the work. Another describes a boss investigating a criminal action when it and understand possible reservations who doesn’t like to confront conflict is so easy, as in Watson’s situation, to — and then make a decision. and therefore unfairly moves a worker mount a case against an obvious Each one of these elements has to a different project. Even in the suspect with a prior criminal record. A components. For example, the authors chapters dealing with “tough cases,” in second concern is the reliability of the give a useful set of steps to assess the which speaking up is more challeng- judicial system where the evidence is risk involved. The first step is to ing, the difficulties are about the boss’s entirely circumstantial and the police identify possible repercussions. Next is personality, the relationship between have been able to prejudice jurors and to spell out the evidence for these the messenger and the boss, or the witnesses and even, in this case, the repercussions. Is it direct experience sensitivity of the topic. There’s no trial judge, by the prior leaking of (previous reprisals experienced or what mention of corruption. information detrimental to the accused. you’ve personally seen happen to Although the neglect of whistle- A third area of concern is Hunter’s others), or what someone told you, or blowing is a major omission, The strong case for trials of this nature to just things you’re imagining might Courageous Messenger is worthwhile be conducted by judges trying to find happen? Were these reprisals from the because of its systematic, thoughtful out what happened rather than by a same person you’re planning to speak approach to communicating potentially trial by jury with two opposing to, or someone else? The next step is to unwelcome messages. If more workers lawyers, the system that we now have. note when these events occurred. If could develop the skills involved, Hunter has presented an extremely they’re recent, the risk is higher. Next, workplaces would operate more detailed series of arguments to support you check how similar your situation smoothly and perhaps a few more his contention that the arrest and trial is to the previous ones. Is the work- workers could avoid serious reprisals of Watson is suspect. He lays out place situation much the same? Then for speaking out. numerous instances where the police the risk is higher. Finally, you put publicly state that they had no suspect, together all these assessments to see Kathleen D. Ryan, Daniel K. Oestreich and yet surreptitiously released information whether the repercussions are likely George A. Orr III, The Courageous that Watson was their man, about his this time. Messenger: How to Successfully Speak Up “long history of violence”, that he had Making a decision about becoming at Work (San Francisco: Jossey-Bass, an incestuous relationship with his 1996). a messenger is just the first step. Next sister, about the doubts on various is conveying the message, namely Brian Martin is Vice President of identifications. The insinuations, all of talking to the boss. This has a similar Whistleblowers Australia and editor of which were disputed by Hunter, number of elements, including The Whistle. “travelled well beyond the journalists preparing for the meeting, opening the into the public at large, and even into conversation, presenting your views the judiciary” (p. 21). and explaining your reasons, talking The statement by police that they BOOK REVIEW with the receiver (the boss), finishing had no suspect subverts the require- the conversation and following through ment that no public information be afterwards. That’s a lot of attention to Trial by Trickery given out that may prejudice a trial. a simple conversation! Except that a Australians are familiar with a recent conversation is rarely simple: your Reviewed by Peter Bowden application of this sub judice rule in choice of words, your tone of voice, the recent decision by Judge Betty your response to objections and much Trial by Trickery is an account of the King of the Victorian Supreme Court else can make an enormous difference arrest and trial of Scott Watson for to ban the doco-drama Underbelly on to the outcome, sometimes the differ- killing two young people, Ben Smart the basis that it might prejudice jurors ence between reaching agreement and and Olivia Hope, in the early hours of in an upcoming gangland murder trial. things becoming much worse. January 1, 1998. Watson, currently The question as to why the NZ The authors encourage readers to serving a life sentence, went to trial for police should want to leak information consider becoming more skilled at committing the murders on his boat against Watson is presumably so that being courageous messengers. Im- The Blade, in Marlborough Sounds in the arrest would come quickly and the provement comes from regularly New Zealand. The author Keith Hunter police would appear efficient. Or conveying delicate and challenging maintains that Watson is innocent. perhaps that they simply believed him messages and learning the lessons of Hunter has waged a long campaign to guilty. It is certainly true that large this experience by reflecting on what instigate a retrial, including the numbers of police were involved in

THE WHISTLE, #54, APRIL 2008 PAGE 9 releasing various pieces of informa- Keith Hunter, Trial by Trickery: Scott wide variety of readers” (p. xvi). In tion. New Zealanders pride themselves Watson, the Sound Murders and the Game other words, it deals with research on the honesty of their police. They of Law (Auckland: Hunter Productions, findings but explains them accessibly. wear no guns, but also have had until 2006). Drawing on their earlier work, recently no code of conduct, and no Miceli and Near define whistleblowing Dr Peter Bowden is president of the effective integrity commission where as “the disclosure by organization NSW branch of Whistleblowers police unhappy with the conduct of Australia, lecturer in ethics at the members (former or current) of illegal, colleagues can blow the whistle. University of Sydney and a member of immoral, or illegitimate practices The question as to the role of the the Executive Committee of the under the control of their employers, to prosecutors is also raised. The book Australian Association of Professional persons or organizations that may be makes a strong argument that the and Applied Ethics. able to effect action” (p. 15). The prosecutors twisted the evidence as book, after introducing the idea of strongly as possible towards a guilty whistleblowing, presents a model of verdict, even to the point of misquot- whistleblowing and its consequences, ing some evidence, and ignoring other Miceli and Near on assesses whether whistleblowing is evidence helpful to Watson. I was very blowing the whistle affected by personality and situation surprised to read that, even in the legal factors, examines the consequences of profession, disputes exist on whether Brian Martin whistleblowing (including retaliation), the purpose of the public prosecutor looks at legal approaches to whistle- was to obtain a conviction rather than At the Whistleblowers Australia blowing (in a chapter contributed by present the evidence against the conference in November, there was Terry Dworkin), and spells out some accused fairly but honestly. He also considerable discussion of the implications for practice. In looking at points out that the accused was “Whistle While They Work” the consequences of whistleblowing, defended by legal aid whereas the (WWTW) research project led by AJ the authors consider both whistleblow- prosecution had the full resources of Brown at Griffith University. Members ers and the organisation. the state at its disposal. A fair trial with of the Whistleblowers Australia Miceli and Near comment on adversarial legal teams requires national committee have been methods of researching whistleblow- competence and full resources on both exchanging many emails about the ing. They note that there are books sides. research. One of the key issues has based on accounts by whistleblowers. The trial judge, Herron J, granted been the frequency and severity of the police application to bug Watson’s retaliation against whistleblowers. While such treatments often provide parents and sister on the basis of their According to preliminary results of the fascinating reading, they suffer from statements against Watson that were research, only a minority of Australian serious shortcomings. First, well- extremely negative. These accusations public service whistleblowers report known cases (or those identified were made despite the police an- reprisals. Yet most whistleblowers through word-of-mouth referrals) nouncements that they had no suspect. who contact Whistleblowers Australia typically comprise the majority of Hunter makes a convincing case that have suffered reprisals, often quite cases examined in such books. But Herron’s summing up to the jury was severe. Is there any discrepancy they may not be representative of all imbalanced as a result. involved here? or even most whistle-blowing The case is still very topical. A One explanation for the difference attempts. To the extent that this is search for Scott Watson in Google will is the definition of whistleblowing true, several problems result. What show that the police are still defending used in the WWTW research, said to appear to be common characteristics their actions. The New Zealand Times be based on the definition by Miceli of whistle-blowing cases may in has just carried a complete review of and Near. Therefore, it’s worth fact be uncommon, or common only the evidence, which came to the spelling out how Miceli and Near to the most dramatic of cases. For conclusion that a re-examination of the define whistleblowing and what they example, while many authors report Watson case is necessary. The local say about reprisals. that severe retaliation is practically media also report that Watson’s life in Marcia Miceli and Janet Near are inevitable (for instance, Shepherd, prison has not always been exemplary. US-based researchers who, in 1987b), more carefully controlled It would appear that the New Zealand collaboration with Terry Dworkin, survey research of a random sample media, and therefore presumably the have written a large number of articles of organization members (as in country, is not fully convinced that about whistleblowing. Here, I’ll focus MSPB, 1981, 1984) suggests that Scott Watson was guilty. But the on a key book: Marcia P. Miceli and retaliation in any form is perceived groundswell and the petitions, perhaps Janet P. Near, Blowing the Whistle: by less than one-quarter of the due to the negative image of Scott The Organizational and Legal whistle-blowers surveyed, and that Watson, are insufficient to change the Implications for Companies and severe retaliation is experienced by opinions of the authorities. Employees (New York: Lexington a small subset of these persons. We This raises the issue whether the Books, 1992). The authors say “This is hasten to emphasize that this should decisions of a country’s legal system the first book on whistle-blowing that not imply to the reader that should be influenced by public describes and integrates the scholarly retaliation is an insignificant issue. opinion. literature so it can be understood by a It should be noted that the surveys

PAGE 10 THE WHISTLE, #54, APRIL 2008 to date have been conducted in the example, Soeken & Socken, 1987; References cited federal sector and that persons who Parmerlee et al., 1982) agree that Graham, J. W. (1983). Principled or- left the government, as well as retaliation is both likely and severe. ganizational dissent. Unpublished persons who have never worked in But comparative survey-based doctoral dissertation. Northwestern that sector, were not included. studies of large samples of University, Evanston, IL. However, these findings suggest randomly selected whistle-blowers Merit Systems Protection Board that retaliation is much more likely and other organization members (MSPB) (1981). Whistle-blowing under certain circumstances than show that retaliation occurs in a and the federal employee. under others, and that by examining small proportion of cases and it Washington, DC: U.S. Government a small subset of cases, researchers generally takes the form of more Printing Office. may gain richness and depth with subtle harassment than firing or Merit Systems Protection Board respect to some cases but may lose physical threats (for example, (MSPB) (1984). Blowing the perspective on the entire population Graham, 1983; Miceli & Near, whistle in the federal government: of whistle-blowing incidents. (p. 40) 1989). Thus, we must disagree that A comparative analysis of 1980 retaliation is inevitable; more likely, and 1983 survey findings. Later in the book, Miceli and Near the whistle-blower and his or her Washington, DC: U.S. Government look at “retaliation as an outcome complaint will be ignored. It is also Printing Office. variable.” After describing some of the unclear whether blowing the whistle Miceli, M. P., & Near, J. P. (1989). difficulties in defining retaliation, they anonymously will be advantageous The incidence of wrongdoing, comment on its incidence: in every situation. Some complaint whistle-blowing, and retaliation: recipients may not be trustworthy Results of a natural occurring field A point related to the problem of and may reveal a confidence; others experiment. Employee Responsi- defining retaliation is that estimates may refuse or be unable to follow bilities and Rights Journal 2:91- of the overall incidence of retalia- up on a complaint if they cannot 108. tion vary dramatically. While case identify the complainant. Near, J. P., Dworkin, T. M., and studies of whistle-blowers popular- However, the advice that whistle- Miceli, M. P. (in press). Explaining ized in the media present the blowers attempt to retain the the whistle-blowing process: impression that all whistle-blowers support of supervisors and Suggestions from power theory and suffer extensively, survey research management appears sound. The justice theory. Organization from somewhat larger and more pattern of results is quite clear. Science. diverse samples suggest that the rate Whistle-blowers are more likely to Parmerlee, M. A., Near, J. P., and of retaliation is much lower, avoid retaliation if they have Jensen, T. C. (1982). Correlates of probably less than 20 percent (Near, support from top and middle whistle-blowers’ perceptions of Dworkin & Miceli, in press); of management. Unfortunately, this organizational retaliation. course, the rate of retaliation assessment was provided after the Administrative Science Quarterly probably varies widely across cases whistle-blowing occurred, so we 27:17-34. of whistle-blowing, so that even have no way of knowing how many Shepherd, M. (1987b, Nov.). Federal attempts to produce generalizable organization members who enjoy whistle-blowers pay a high price. results from reasonable samples of management support lose that Kansas Star/Times: A1, A6. whistle-blowers may be flawed. support when they blow the whistle; Soeken, K. L., and Soeken, D. R. One of the methodological probably this varies with the (1987). A survey of whistleblow- problems here makes the question individual case, so our best advice is ers: Their stressors and coping particularly agonizing; while we for would-be whistle-blowers to be strategies. Proceedings of the would certainly hope that the aware of the problem and try to take Hearing on H. R. 25 (pp. 156-166). incidence of retaliation remains proactive actions to maintain their Washington, DC: U.S. Government small, this creates difficulties, too, managerial support throughout the Printing Office. because only in the largest samples course of the whistle-blowing can enough whistleblowers who process. (pp. 305-306). Brian Martin is Vice President of have suffered retaliation be identi- Whistleblowers Australia and editor of fied so that we can begin to In the concluding paragraph to The Whistle. characterize their experiences Blowing the Whistle, Miceli and Near reliably. (p. 203) say “there remain a great many questions of practical and theoretical In their final chapter, Miceli and Near importance concerning whistle- discuss implications for practice. They blowing” (p. 308). That remains true have this to say about avoiding today. retaliation.

Many authors of anecdotal cases and studies of whistle-blowers who were nonrandomly selected (for

THE WHISTLE, #54, APRIL 2008 PAGE 11 Whistleblowers Australia contacts WBA conference and AGM, 2008

Postal address: PO Box U129, Wollongong NSW 2500 Whistleblowers Australia’s 2008 conference and annual New South Wales general meeting will be held on Saturday-Sunday 6-7 “Caring & Sharing” meetings We listen to your story, December at University College, University of Melbourne. provide feedback and possibly guidance for your next few University College is located in Parkville, on the corner of steps. Held every Tuesday night at 7.00pm, Presbyterian College Crescent and Royal Parade, 10 minutes from Church Hall, 7-A Campbell St., Balmain 2041. Melbourne's CBD, 5 minutes from Lygon Street and 25 Contact: Cynthia Kardell, phone 02 9484 6895, fax 02 - minutes from the airport. The conference venue can be 9481 4431, [email protected] viewed at www.unicol.unimelb.edu.au; follow the link to the Website: http://www.whistleblowers.org.au/ conference. Goulburn region: Rob Cumming, phone 0428 483 155. Accommodation for the conference can be arranged Wollongong: Brian Martin, phone 02 4221 3763. directly with University College, University of Melbourne for Website: http://www.uow.edu.au/arts/sts/bmartin/dissent/ the nights of Friday December 5 and Saturday December 6. A bed and breakfast rate of $47 per person (college room Queensland: Feliks Perera, phone 07 5448 8218, with shared bathroom) or $57 per night (room with ensuite) [email protected]; Greg McMahon, phone 07 3378 will be offered to conference participants. 7232 (a/h) [also Whistleblowers Action Group contact] South Australia: John Pezy, phone 08 8337 8912 Tentative programme for Saturday 6 December. Tasmania: Whistleblowers Tasmania contact: Isla MacGregor, 03 6239 1054 “Australia’s Forgotten Generation: Its Whistleblowers” 8.30, Registration Victoria 8:55, Opening Meetings are normally held the first Sunday of each month 9.00, Session 1: The Cold Cases of Whistleblowing at 2.00pm, 10 Gardenia Street, Frankston North. 10.15, Morning Tea Break Contacts: Stan van de Wiel, phone 0414 354 448; Mervyn 10.30, Session 2: Whistleblowing Legislation Vogt, phone 03 9786 5308, fax 03 9776 8754. 12:30, Lunch Whistle 1:30, Session 3: Your Right to Know Editor: Brian Martin, [email protected], phones 02 4221 3:00, Afternoon Tea Break 3763, 02 4228 7860. Address: PO Box U129, Wollongong 3.15, Session 4: Whistleblowing and the Private Sector NSW 2500. Associate editor: Don Eldridge. Thanks to 4:30, Session 5 Whistleblowing and Bullying Cynthia Kardell and Patricia Young for proofreading. 5:45-6:00, Conclusion

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 12 THE WHISTLE, #54, APRIL 2008