the whistle - bmartin

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

TheWhistle NO. 39, SEPTEMBER 2004

Newsletter of Whistleblowers AustraliaPO Box U129, Wollongong NSW 2500

THE WHISTLE, #39, SEPTEMBER 2004

WBA annual general meeting and conference

27-28 November 2004WHISTLEBLOWING: COURAGE WITHOUT MATESHIP

Hotel Y Conference Centre, 489 Elizabeth Street, Melbourne.

Saturday ProgramRegistration commencing at 9am.2 workshops will be held in the morningLunch provided2pm AGM4.30pm discussion5.30pm7pm pre dinner drinks7.30pm Dinner

Sunday ProgramRegistration commencing at 9 am.9.30am. Opening address by WBA president.9.40am. Whistleblowing in Australia: the last 10 years11am The Importance of Truth –speaker tba11.30am The Importance of Truth – Panel Discussion12.45pm Lunch2pm. Courage without Mateship – speaker Kim Sawyer2.30pm. Whistleblowing and policing – Panel Discussion3.30pm. Break4pm. Whistleblowing: What lies ahead – Panel Discussion5pm. Closing address.

BOOKINGS: In order to facilitate all necessary arrangements, booking deadline is 12 November

Cost: Option 1. AGM Day only $20Option 2. AGM and Dinner $60Option 3. Both days (AGM & Conference) and Dinner $80Option 4. Conference day only including lunch $40 (concession $20)

Post your application to P.O. Box 446, Cheltenham Vic 3189Make cheques or money orders payable to “Whistleblowers Australia” and clearly identify your name,contact details and option 1, 2, 3 or 4.

Contact Details: Stan van de Wiel – [email protected] 0414 354 448

Nominations for national committee positions must be delivered in writing to the national secretary(Cynthia Kardell, 7A Campbell Street, Balmain NSW 2041) at least 7 days in advance of the AGM,namely by Saturday 20 November. Nominations should be signed by two members and be accompaniedby the written consent of the candidate.Proxies A member can appoint another member as proxy by giving notice in writing to the secretary(Cynthia Kardell) at least 24 hours before the meeting. Proxy forms are available athttp://www.whistleblowers.org.au/const/ProxyForm.html. No member may hold more than 5 proxies.

THE WHISTLE, #39, SEPTEMBER 2004 PAGE 3

Accommodation available for conference delegates

All accommodation is within easy walking distance or a short tram ride from the conference venue.

Economical all day parking is very close to the venue and is $3.50 per day.

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Flinders Back Packer Motel/Hotel Twin-single beds 2 $5835 Elizabeth Street Double bed 2 $58Melbourne 3000Ph: 9620 5100

Elizabeth Tower Hotel Single 1 $149792 Elizabeth Street Double 2 $149Melbourne 3000 Queen, 2 singles 3-4 $210Ph: 9347 9211 www.elizabethtower.com.au

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Limited Home Share may be available.

Please contact your chosen accommodation directly.


Media watch

Law enforcement — anhonest cop pays the price

Weekend Australian,8-9 May 2004, p. 23

FORMER police officer ZhangYaochun was a “fugitive frominjustice,” said the Far EasternEconomic Review, on the run from herformer colleagues after helping toexpose corruption, including illegalsales of police weapons.

She has been hiding from policesince 2000 after she cooperated with anationwide Communist Partyinvestigation into illegal firearms in1999 that culminated in 45,000 corruptor unqualified police getting the boot.She detailed abuses of power in herstation at Hepu county, Guangxiprovince, where she saw her superiorsusing the police armoury to “makemoney and curry favour” selling orlending guns to local notables, allrecorded in notes she kept.

“With so much firepower on theloose, ‘how were we police supposedto protect ourselves, much less thecitizenry?’,” she asked the Review. Atthe time she was “lumped in with thebad cops” and kicked off the forceonly to be reinstated, fired again,detained twice and “for most of thepast four years has been dodgingpolice who she believes could seize herat any moment.”

A former party official who tookpart in the investigation and saw hermemo said: “She’s been made acriminal, and the impact has beenserious. Based on her experience,many people no longer dare to reportsuch problems.”

Unfair dismissal claimslevelled at Defence Force

ABC Radio, “AM,” Tuesday,27 April 2004, 8:08amReporter: Sarah Clarke

TONY EASTLEY: There are moreproblems this morning for the embat-tled Australian Defence Department.

Hot on the heels of the Lance Collinsaffair, Defence has now been accusedof mistreating other former and servingpersonnel in the ADF.

The group, including members ofthe Navy, Army, Air Force and theSAS, say they were diagnosed withfalse medical conditions in an effort tosilence or to get rid of them. For many,the diagnosis was later challenged bycivilian doctors. The ADF denies it’susing the “medical discharge process”to force personnel to quit.

But as Sarah Clarke from theABC’s Investigative Unit reports, up to200 are now considering a class action.

SARAH CLARKE: After 19 yearswith the army, Major Mary-AnnMartinek was medically dischargedfrom her unit. She received acommendation for her work, and wassecond in charge of her regiment.

But she blew the whistle on whatshe believed was misconduct in themilitary, and in 2000, she was dis-missed on medical grounds.

MARY-ANN MARTINEK: SoI’ve had to guess, you know, what thatis, because it took me up until Augustlast year to get my entire medicalrecords, so I wasn’t able to take it toany doctor for a second opinion.

SARAH CLARKE: In August lastyear, she got access through a freedomof information request. Even then, shesaid there was no specific medicaldiagnosis.

MARY-ANN MARTINEK: Mymedical records in my opinion, wereadjusted to suit a medical discharge.And because they were adjusted in thatway to suit a medical discharge, I wasdischarged.

SARAH CLARKE: It appearsMary-Ann Martinek is not the onlycase.

The ABC’s Investigative Unit hasbeen told by members of the army,navy, air force and the SAS who claimthey’ve been medically discharged onfalse grounds.

Warren Leplastrier served in thenavy for five years, and was describedby his senior naval commanders as asuperior able seaman. He was then toldhe had a sleep-related condition,narcolepsy, a diagnosis that was

rejected by two civilian doctors, andlater overturned by the navy.

WARREN LEPLASTRIER:Twelve months ago it was overturnedbecause they said, oh, it was … ourcase appears to be weak.

SARAH CLARKE: His father,Peter Leplastrier, is now laying thegrounds for class action, with anumber of former and servingmembers claiming unfair dismissal.

PETER LEPLASTRIER: I’ve hadin excess of 200, probably close to 250calls. They just believe they werewrongfully discharged along the samelines as Warren.

SARAH CLARKE: And MajorMary-Ann Martinek says the case isgaining momentum.

MARY-ANN NARTINEK: Allthis publicity about Lieutenant ColonelCollins, there are more cases comingto light. If this goes ahead, there aregoing to be thousands, not hundreds, Ithink there will be thousands.

SARAH CLARKE: So far,Defence says it’s unable to tell theABC how many personnel have beenmedically discharged, and how manymay have been wrongfully dismissed.

Poverty and corruption

Urvashi ButaliaNew Internationalist, April 2004, p. 5

FOR weeks now I’ve been haunted bythe story of Satyaendra Dubey, ayoung engineer, working in Bihar ineastern India. Dubey was involved in abig project to build roads that aremeant to connect all of India — knownas the Golden Quadrilateral. Theproject is also called the Indian PrimeMinister’s ‘dream project’.

Dubey was an unusual man —disturbed by the extent of corruption inthe project, he did not remain silent.He chose to speak out. But, beingrealistic, he did not make his anxietypublic. Instead he wrote a confidentialletter to the Prime Minister, givingchapter and verse about what he hadseen and asked that his confidence berespected. Bureaucracy, however, doesnot care for the individual. Dubey’s


letter did not remain confidential. Soonhe lay on the streets of Bihar, a deadman, shot through the head on his wayhome one night.

There was some outrage atDubey’s tragic death. The IndianE x p r e s s , a national newspaper,campaigned to expose what hadhappened and to stimulate publicprotest. The paper collected some50,000 signatures — an impressivenumber, though not much in a countryof a billion plus. But, then, I didn’tsign either. So who am I to questionthe indifference of others?

In an odd way we’ve become soused to corruption, fraud and graft thatwe don’t even notice. It seems part ofthe order of things. There’s an index ofcorruption, compiled by an organiza-tion called Transparency International,by which different countries arejudged. Our countries — in the Southor what used to be known as the ThirdWorld — usually occupy the bottomspots. It’s often said that there’s a linkbetween corruption and poverty — andthat’s why the poorer countries are socorrupt. But I’m not so sure.

Last week I decided to test this out.I picked up a local newspaper andscoured it for stories of corruption.There was no shortage. Then I lookedat a paper from Nepal and one fromPakistan and the result was the same.The next step was to pick up an inter-national paper — international, butmainly with news from the West. Theresult was pretty much the same. If itwasn’t the Parmalat scandal or SilvioBerlusconi’s adventures with the law,it was contracts in Iraq for UScompanies. The only difference wasone of scale. In some instances (largelyin the South) we’re talking smallmoney; in others (largely in the North)we’re talking mega money. But this issmall comfort — the problem doesn’tdisappear because the scale is small.

So what does poverty have to dowith corruption? A fair amount I think.If you’re poor, badly paid, exploited bythe system and denied your rights,arguments for ‘good citizenship’ or a‘civic sense’ don’t really hold. Youtake what you get because whateveryou can get is more than you’ve got. Ifit’s possible to earn a little more byduping the system, why not do it?

I’m not excusing corruption. Butthere is a way to understand the

harassed traffic cop on a busy roadwho’s been inhaling dust and grime allday, who has a family to support andwho earns barely enough for oneperson, who then quietly pockets a fewrupees held out to him.

On the other hand there’s no wayyou can excuse a Prime Ministerpushing through legislation that makeshim immune from prosecution; or aPresident offering post-war contractsto his friends; or a contractor siphoningoff millions and resorting to murder tocontinue doing so. Equally, there’s noway to excuse our own indifference —all too often corruption is blatant,open, shameless. And the practicecontinues because we don’t protest orfight it when it’s possible to do so.

There are examples of things thathave made a difference. In SouthKorea several years ago a group oflawyers set up a website where theylisted the names of all politiciansaccused of corruption. It’s said that 75per cent of those men (and they wereall men) were unable to stand forelection as a result of the publicity.

In India, Satyaendra Dubey’s deathwas quickly followed by two more. Ayoung couple trying to bring basicservices like water to poor villagesdiscovered that endemic corruptionwas robbing the villagers blind. Whenthe couple was murdered, hundreds ofvillagers protested their deaths.Following a tradition that the death ofa dear one is mourned by men havingtheir heads shaved, every single malein one village had himself tonsured —even as the police hesitated to file acase. Sometimes symbolic protests areas important as material ones.

Since Dubey’s death I’ve beenthinking that the biggest fight isagainst our own indifference, ouracceptance of corruption as somethingthat just is. It took the loss of a youngman’s life to make me realize this.There has to be another way thatdoesn’t involve paying such a heavyprice.

Urvashi Butalia is an Indian writerand publisher. She lives in New Delhi.

Court quashes brothers’convictions for 1982Perth Mint swindle

The Mickelbergs have finally wontheir legal battle after eight appeals.

by Andrea Mayes and David KingThe Australian, 3 July 2004, p. 8

AFTER 22 years, Ray and PeterMickelberg were finally vindicatedyesterday when a West Australiancourt quashed their convictions for the1982 Perth Mint swindle.

In a 2-1 decision, the Court ofCriminal Appeal found in favour of thebrothers after corrupt former detectiveTony Lewandowski admitted fabrica-ting their confessions.

There was a sense of anticlimax asChief Justice David Malcolm read thedecision to a hushed courtroom, owingto the absence of the brothers.

Instead, the pair employedcelebrity agent Harry M. Miller tohandle their publicity.

Mickelberg advocates hailed thedecision as a triumph of justice but theWest Australian police maintainedthere remained ample evidence of thebrothers’ guilt.

The Mickelbergs are suing the statefor malicious prosecution and may alsobe eligible for an ex-gratia compensa-tion payout for wrongful conviction.

Attorney-General Jim McGintysaid the state would consider anapplication for compensation by theMickelbergs, but would have to takeinto account the $578,000 alreadyspent funding their appeals.

It was the eighth appeal for theMickelbergs, who together with a thirdbrother, Brian, were found guilty in1983 of stealing 68kg of gold — thenworth $650,000 — from the mint.

Ray Mickelberg served eight yearsof a 20-year sentence and Peter servedsix years of a 14-year term.

Brian Mickelberg’s conviction wasoverturned on appeal in 1983 after hehad served nine months of a 12-yearsentence. He died in a 1986 planecrash.

In their decision, Justices Malcolmand Christopher Steytler said much ofthe police evidence was unreliable andthere was “a significant possibility” thejury in the original trial would have


acquitted the brothers, in light ofLewandowski’s confession.

“In my opinion there is now a veryserious doubt as to the policeevidence,” Justice Steytler wrote. Thepossibility of a retrial was rejected.

Dissenting Justice Michael Murraysaid he believed the evidence againstthe brothers remained compelling,despite Lewandowski’s admissions.

In sensational new evidence firstdetailed in a June 2002 affidavit,Lewandowski said he and former CIBchief Don Hancock had bashed PeterMickelberg while interviewing him in1982 and fabricated the brothers’confessions.

Lewandowski committed suicide inMay, just six weeks before yesterday’sdecision.

Outside court, Ray Mickelberg’slawyer Malcolm McCusker QCdescribed the decision as “a great dayfor WA justice”.

Lewandowski’s mother, IreneBurns, said she was happy with theverdict and proud of her son.

“He was never a corrupt cop. Hecame forward, he told the truth. Otherdetectives could have done exactly thesame thing but they didn’t have theguts.”

West Australian police commis-sioner Mel Hay was disappointed bythe decision and refused to apologiseto the Mickelbergs for their treatment.

[Avon Lovell, long active in Whistle-blowers Australia, wrote the 1985book The Mickelberg Stitch that raisedquestions about the police case againstthe Mickelbergs. The WA policelaunched numerous defamation actionsto keep the book away from readers.Avon was the one who prompted TonyLewandowski to admit to framing theMickelbergs. — editor.]

Whistleblowers’green light

Protection for whistleblowers inAustralia’s private sector has been

a long time coming.

Andrew MurrayIllawarra Mercury, 3 July 2004, p. 35

TWO remarkable and historicaccountability mechanisms came intolaw last week.

For the first time ever, Australia’sprivate sector got whistleblowerprotection.

The importance of this should notbe underestimated.

Employees who would otherwisebe intimidated into keeping quiet forfear of losing their jobs can now blowthe whistle on corruption and crime inthe private sector.

A compensation and protectionregime now exists to safeguard theirwelfare.

The Federal Government has theweakest public sector whistleblowinglegislation in the country. Yet in aremarkable development, obviouslyfinally sick of corporate malfeasance,they introduced strong whistleblowerprotection into corporations law.

The Australian Democrats seizedthe opportunity and in the same weekused their balance of power position toreplicate those laws and persuade theGovernment to accept them asamendments to Workplace Relationslaw.

Now corporations, unions andemployer organisations all havewhistleblower protection.

Only unincorporated associationsand the not-for-profit private sectorstill lack whistleblower law.

We badly need those laws in thesesectors, too. How else to help get at theembedded practice of church com-plicity in concealing crimes againstchildren?

Over the last decade the AustralianDemocrats have campaigned for strongwhistleblower protection laws in boththe private and public sectors.

We have introduced strong publicsector whistleblower protectionlegislation for debate in the Senate, butit languishes on the notice paper. TheGovernment remains indifferent to it.

Which makes the corporations andworkplace relations initiatives all themore dramatic and heartening.

Hopefully an early use of thesenew protections will be in the buildingand construction industry. Now unionmembers and company employees canblow the whistle on crime, corruption,fraud, and thuggish practices in thatindustry.

Lawlessness and corruption cannotproperly be addressed without whistle-blower protection mechanisms inplace.

If you are fighting criminality orcorruption in the workplace you needto encourage disclosure in the publicinterest.

An effective whistleblower protec-tion scheme serves the public interestby exposing and eliminating fraud andimpropriety.

Public sector disclosure laws arequite effective in most States andTerritories, but are poor in the Federalarena.

Private sector disclosure laws havebeen non-existent, but there have beenuseful private sector initiatives aimedat self-regulation. The commercialworld has come to realise thatencouraging whistleblowing reducesimpropriety and increases productivity.

In the last few years, major auditand accounting groups such as DeloitteTouche Tohmatsu, Ernst & Young,PricewaterhouseCoopers and KPMGhave established procedures that allowemployees to blow the whistleanonymously to auditors on corporatefraud, corruption or theft.

The Australian Stock Exchange’sCorporate Governance Councilrecommends listed companies providemechanisms for employees to alertmanagement and the board to miscon-duct without fear of retribution.

Witness protection schemes are apoor substitute for disclosure laws.Often disclosure is not such as to needwitness protection, and witnessprotection schemes do not address theneed to protect people’s jobs.

Impropriety will only be uncoveredif the people in a position to reveal itare genuinely protected, and compen-sated where appropriate.

Whistleblowers show great couragein exposing the corrupt and theimproper.


Victimisation, exclusion, harass-ment and derision are all too commonexperiences for whistleblowers.

Laws are needed to establish andenhance the legal rights of whistle-blowers. They perform a valuable andessential public service.

Whether it is unions, churches,corporations or governments, peopleneed to be able to come forward safelywhen they encounter wrongdoing.

Whistleblowing is very much in thepublic interest.

It will always take considerablecourage. The law is increasinglyrecognising and rewarding thatcourage.

Canada sacks threewhistle-blowing scientists

Reuters, 15 July 2004

WINNIPEG, Manitoba — TheCanadian government fired three high-profile scientists to punish them forpublicly challenging federal decisionson veterinary drugs, the scientists’union said on Thursday.

But a spokesman for HealthCanada said the dismissal of MargaretHaydon, Shiv Chopra and GerardLambert had nothing to do with theirwhistle-blowing activities.

“There is absolutely no connec-tion,” said Ryan Baker, a spokesmanfor the department, where the scientistsworked in a section that reviews andapproves veterinary drugs.

“This is not because of anythingthey may have said publicly,” Bakersaid.

The scientists have a lengthyhistory of disagreement with thedepartment, which has reprimandedthem in the past.

Haydon and Chopra spoke outagainst a growth hormone for dairycattle, called bovine somatotropin, thatMonsanto Co. unsuccessfully appliedto sell in Canada in the 1990s.

They said the company did notsubmit enough information to provethe drug was safe for cows or humans,and complained they were pressuredby the department to approve it.

More recently, Chopra andLambert complained the departmentapproved a new method of use for the

antibiotic tylosin, marketed by theCanadian animal health division of EliLilly and Co., despite their concernsthat it could lead to antibiotic-resistantbacteria.

Haydon also criticized livestockfeed rules in the wake of Canada’s firsthomegrown case of mad cow diseaselast year.

The precise reasons for the firingswere outlined in letters delivered to thescientists at their homes on Wednes-day, Health Canada’s Baker said,declining to elaborate for privacyreasons.

“The individuals in question areable to share it with you if they chooseto,” Baker said.

Chopra declined comment andreferred questions to his lawyer, whoin turn referred calls to the scientists’union, the Professional Institute of thePublic Service of Canada.

The union’s president also declinedto discuss the reasons given by HealthCanada until a hearing is held, possiblyin six months.

“We will be addressing whatHealth Canada has put in the lettersand we will be showing that, despitewhat they say, the real cause of theletters of termination is the publiccriticism of the department and thegovernment of Canada,” Steve Hindlesaid.

“The fact that it’s three (peoplefired) on the same day is unusual, andit also, I believe, lends credence to theargument we’re putting forward that(the firings are) a result of them beingwhistle-blowers,” Hindle said.

The firings outraged activist groupswho said whistle-blowers need betterlaws to protect them.

“All these scientists were trying todo was protect the food supply, andthey got fired for doing their job,” saidBradford Duplisea of the CanadianHealth Coalition.

The federal government hadintroduced new measures to protectbureaucrats who report concerns abouttheir departments, but the proposedlegislation was not enacted before theJune 28 federal election.

Daniel Ellsberg seesa new trend — telling all

while the issue is hot

Matthew B. StannardSan Francisco Chronicle,

29 March 2004, p. A1

When famous whistle-blower DanielEllsberg boarded a plane to Cincinnatiearlier this week, he took along a littlelight reading: a stack of articles aboutformer counterterrorism czar RichardClarke, who has stirred controversywith allegations in his book andtestimony before a special panel thatthe Bush White House was somewhatindifferent to al Qaeda before Sept. 11and obsessed with Iraq afterward.

Ellsberg [pictured], who in 1971leaked the Pentagon Papers docu-menting government misrepresenta-tions about the Vietnam War, seesClarke as part of a trend: well-placedindividuals in the government whohave gone public with books orinterviews outlining their concerns andcriticisms about their country’sgovernment — while that governmentis still in power.

Ellsberg is not alone in that obser-vation — observers from across thepolitical spectrum, whether theysupport Clarke’s actions or not, agreethat a new willingness exists to tell allfar sooner, and far more publicly, thanin the past.

Ellsberg cites officials such asScott Ritter, the former lead inspectorfor the U.N. Special Commission onConcealment and Investigations team,and Katharine Gun, a Britishgovernment linguist who leaked an e-mail purportedly from U.S. intelli-gence services asking for help spyingon U.N. ambassadors.

Opinions differ on whether thewillingness to tell all is a good thing,but to Ellsberg, who has been sharply


critical of the war in Iraq and evenwritten articles encouraging currentgovernment employees to leak what hecalls “Iraq’s Pentagon Papers,” thephenomenon is a source of optimism.

“I think these people are heroes.They’re really acting appropriately in avery dangerous situation,” he said.“It’s as if we are learning about theTonkin Gulf a month or two laterinstead of years later.”

Although Ellsberg, now 72 andliving in Kensington, considers Clarkesomewhat of a kindred spirit, hedoesn’t quite see him as a whistle-blower. Clarke was no longer anemployee of the administration whenhe spoke out and did not providedocumentation to back up his accusa-tions — accusations the administrationhas rejected.

Ellsberg said the only real whistle-blower of recent times is Gun, whobriefly faced charges under the BritishOfficial Secrets Act and supported herclaims with documents.

“I find her really admirable,”Ellsberg said, but he considers the restremarkable, too, for being willing to gopublic in a way and with a speed thatsimply didn’t occur 40 years ago.

“Why are they acting differentlyfrom people in my generation?” hesaid. “We knew (Vietnam) was just asdeceptive and the policy was just asbad, but we certainly weren’t temptedto leak.”

At least, not until Ellsberg did it.But since then, a number of observerssaid, going public early and often hasbecome more and more acceptable,even among ranking governmentofficials.

It certainly wasn’t acceptable in the1950s, said Stephen Hess, who was aspeechwriter for President DwightEisenhower and is now with theBrookings Institution in Washington,D.C.

“It was a rule of thumb that no onespoke until the president did. When thepresident wrote his memoir, told hisstory, that was when the others did,”Hess said. The exceptions, he said,were books that were rarely verycritical — and even then, they wereconsidered scandalous.

“We on the staff thought that wasjust in such poor form … it just wasn’tdone,” he said.

The ideal at the time, Hess said,was the White House staff describedby pre-World War II political scientistLouis Brownlow, who recommendedthat President Franklin Roosevelt’sstaff should “remain in the back-ground, issue no orders, make nodecisions, emit no public statements …They should be possessed of highcompetence, great physical vigor, anda passion for anonymity.”

That changed markedly with therelease of the Pentagon Papers.Another step came, Hess said, duringthe administration of President JimmyCarter, who was criticized in public bysome former staffers and was himselfcritical of his predecessors and later hissuccessors — another taboo. Afterthat, the genie was out of the bottle.

“Over time, it became an ava-lanche. By the time you reachedClinton, you had people that secretlyhad book contracts,” he said. “You hadpeople sitting around the table keepingnotes.”

Both former Clinton politicalconsultant Dick Morris and formersenior adviser George Stephanopouloshad books published while Clinton wasstill in office.

But Clarke’s book, because of hisposition, may be taking the trend to anew level, said Peter Berkowitz, aresearch fellow at the Hoover Institu-tion and an associate professor of lawat George Mason University LawSchool.

“I do think what Clarke has done isreally unprecedented in our history:somebody who served as a nationalsecurity adviser to the presidentstepping down and, while thatpresident is still in office, blastinghim,” he said. “That just hasn’t beendone before.”

It is also surprising, Berkowitzsaid, that comments by Clarke,O’Neill, and Hans Blix, the formerU.N. chief weapons inspector in Iraq,have such an impact on public policyand public discourse — even though,in his opinion, they fit into thecategory of disgruntled ex-employee ascomfortably as whistle-blower.

“That’s actually one reason, itseems to me, to take this criticism witha grain of salt,” Berkowitz said.

But regardless of the motivation,telling all is probably going to beincreasingly popular, said UC

Berkeley political science ProfessorBruce Cain, for commercial reasons ifnot ideals.

It is increasingly difficult, becauseof conflict-of-interest laws, for formergovernment officials to move easilyback and forth between thegovernment and the private sector, andthe growth of cable and the publishingindustry ensures that they can seeklucrative post-government employmentin the media, Cain said.

And because books sell betterwhen the author’s name is fresh inpeople’s minds, he said, it is likelysuch books will continue to bepublished as soon as possible — andsooner all the time.

“It’s part of this whole speeding upof the cycle of everything. Now, evenour memories have to come faster,” hesaid.

Michael Kohn, general counsel forthe private National WhistleblowerCenter, agreed with Cain’s predictionof faster and faster revelations, butwith a different premise.

“You’re seeing an evolution of oursociety. Ellsberg is essentially the firstmodern whistle-blower. As a result,the news media observed how import-ant obtaining this type of informationwas and how it was the ultimatelifeline to a free society,” he said. “Asthis message began to take root, thewill of people to expose information atan earlier point of time has just gonewith it.”

The main brake on the phenom-enon, Kohn said, are federal laws thathe feels inadequately protect peoplewho try to speak up while stillemployed, causing more to delayrevelation until they quit or are fired.

With more protective laws, he said,“you would have heard from (Clarke)before Sept. 11.”

Hess and Berkowitz said theconsequences of this new willingnessto tell all include the loss of a kind ofloyalty in government service that hadbeen a tradition, and the possibilitythat future administrations may appointmore party loyalists and be less willingto keep on longtime civil servants fromprior administrations.

“There is a very good reason whythere is executive privilege and why apresident should feel they have a rightto receive confidential information


from their aides and that their aidesowe” loyalty to them, Hess said.

But to Ellsberg, the fact that anumber of Bush’s own people havebeen willing to break that presumptionof loyalty is a strong condemnation ofthe president and his neo-conservativeallies, something Clarke himself hashinted at in public statements.

Asked on “60 Minutes” whether heowed loyalty to the president, Clarkeresponded, “Up to a point. When thepresident starts doing things that riskAmerican lives, then loyalty to him hasto be put aside.”

THOSE WHO TOLDDaniel Ellsberg, who leaked the

Pentagon Papers three decades ago,cited these people as part of what hesees as a new trend of those whocriticize governments still in power:

— Scott Ritter, the former leadinspector for the U.N. SpecialCommission (UNSCOM) Conceal-ment and Investigations team in Iraq.

— Hans Blix, the former U.N.chief weapons inspector in Iraq.

— Former Treasury Secretary PaulO’Neill, whose January book about histenure inside the Bush administrationwas based, in part, on classifieddocuments.

— Rand Beers, who quit asPresident Bush’s antiterrorism adviserto become John Kerry’s foreign policyadviser.

— Joseph Wilson, a formerambassador who investigated whetherIraq tried to buy uranium from Nigerand later publicly accused the WhiteHouse of manipulating his findings.

— John Brady Kiesling, a careerU.S. diplomat who resigned to protestthe Bush administration’s policies onIraq.

— Ray McGovern, a retired CIAanalyst on the steering committee ofVeteran Intelligence Professionals forSanity.

— Robin Cook, a former Britishforeign minister who quit and wrote abook saying the threat of Iraq wasoverblown.

— Katharine Gun, a Britishgovernment linguist who was chargedunder the British Official Secrets Actfor leaking an e-mail purportedly fromU.S. intelligence services asking forhelp spying on U.N. ambassadors.

— Anthony Zinni, retired Marinegeneral and former U.S. commanderfor the Middle East who has criticizedthe handling of postwar Iraq.

— Clare Short, a former interna-tional development secretary whoresigned from British Prime MinisterTony Blair’s government in protestafter the invasion and later said shehad seen transcripts of bugging of KofiAnnan’s office.

— Karen Kwiatkowski, a retiredlieutenant colonel formerly assigned tothe Pentagon’s Office of Special Planswho wrote an article critical of the waron the online site Salon.com —entitled “The New Pentagon Papers.”

Government owesapology: whistleblower

Steve PennellsWest Australian, 16 July 2004

A whistleblower who accused theGovernment of ignoring major fraudfor three years said yesterday she hadbeen vindicated after police laidcharges over alleged rorting ofAboriginal health funds.

Health Department officer JeanThornton broke her three-year silencewith a scathing attack on the Govern-ment, saying she had first gone tosenior health officials with hersuspicions of fraud more than threeyears ago.

She claimed the Government hadrefused to act and the then healthminister, Bob Kucera, had warned herabout the dangers of defamationbecause her allegations were untested.

Ms Thornton went public yesterdayafter an independent audit uncoveredalmost $1 million lost from the WAAboriginal Community ControlledHealth Organisation between 1999 and2001.

She said the alleged fraud wasamong a number of concerns she hadtaken to department chiefs in 2001.

“It could all have been fixed upquite easily when I first raised it,” shesaid. “The first instinct of governmentdepartments now is to hush things up.That is the first thing to do when youraise an issue.” She demanded anapology from Premier Geoff Gallop,

Mr Kucera and senior health bureau-crats. Mr Kucera would not comment.

Dr Gallop said Ms Thornton’streatment was being examined by theCommissioner for Public SectorStandards and the process should beallowed to take its course.

Ms Thornton was at the centre of apolitical row last year over thetreatment of whistleblowers, with theState Opposition saying she had beenpushed to one side and threatenedbecause of her efforts to exposealleged code breaches in the HealthDepartment and potential fraud.

At the time, Opposition LeaderColin Barnett accused the Premier’soffice of trying to discredit her. Theallegations, made under the protectionof parliamentary privilege, wereangrily rejected by Dr Gallop.

A few weeks later, Ms Thorntonhand delivered an 11-page letter to theDepartment of Premier and Cabinetcriticising Dr Gallop and Mr Kucerafor their handling of her claims offraud in the Aboriginal health organi-sation.

Public Sector Standards Commis-sioner Maxine Murray’s report into MsThornton’s treatment by the HealthDepartment is expected to be tabledwhen Parliament resumes.

Do you copy?

Susan CheeverSydney Morning Herald, GoodWeekend, 12 June 2004, p. 39

What gives someone the strength toquestion authority? What makes itpossible to ignore peer pressure and actaccording to conscience? Is the abilityto do this a character trait, does it comefrom education, or is it somethingparents instil in their children?

Two famous psychological studieshave shown that when people are givenpower over others, most of them willabuse it. Literature, from The Count ofMonte Christo to Lord of the Flies,illustrates this unbearable truth. Thedesire to follow authority, combinedwith a will to conform, creates a dark,dark side of human nature. In a studydone at Yale in the early 1960s, DrStanley Milgram’s subjects willinglydelivered an apparently painful dose ofelectricity to actors who pretended to


be writhing in pain. Their excuse?They were instructed to do so by ascientist in a white lab coat. In a studyat Stanford University in 1971,subjects who were asked to play therole of “guards” with control overother subjects who played the role of“prisoners” soon became sadistic.

What would you do in a situationlike that? What would your childrendo?

We pay lip service to nonconform-ity, but all the evidence points in theother direction. From fashion fads tomuch more important things, such ascars and even schools, we all behave asif value comes from imitation. We buythe bestsellers. In the summer we listento the same music on the same iPods.In the winter we are sheep in sheepskinclothing. If we are so proud of havingchoices, how come we all choose thesame thing? We say we despiseconformity, but we say it in unison.Even our schools teach the ability toconform in order to pass the exams.When we talk about wanting the bestfor our children, don’t we mean thatwe want them to have what otherchildren have? I certainly do.

Looking for an ice-cream cone onerecent sunny day, my son and I passedtwo long lines. Then we stopped at thewindow of a gourmet store. Their ice-cream freezer glimmered in the dimlight. The store was empty except for asaleswoman stocking shelves at theback. “It can’t be good,” we agreed. Iknow that I sold my own soul long ago— probably the day I bought my firstGucci loafers because they looked sogood on a friend of mine. But I wonderif I have raised my children to conformas I do.

Those who follow the voice ofconscience often get punished by thecommunity whose rules they mustdefy. Whistleblowers get fired whetherthey have the courage to publicise thefact that nicotine is addictive, or thetemerity to take on a crooked corpora-tion, or the nerve to photograph coffinsdraped in flags. We hear about them inthe news, give them a moment of silentthanks for their courage, and thenforget about them as we scramble tokeep up with the Joneses.

I remember my daughter as a littlegirl. At birthdays she would never jointhe singing circle; she preferred to sitin a corner, playing with her bear. She

hated pink. At kindergarten she clungto me long after the other kids hadcheerfully waved “bye-bye” to theirperfect parents. It was hard not topressure her to be one of those littlegirls in pink who sang along whiletheir mums smiled proudly. I didpressure her, but because I had been adisastrous child myself, I sometimeslet her be. It was excruciatingly hard.That’s all I’m trying to say.

We can say we admire those whomarch to a different drummer, but infact being different is hard, harder thanmost of us can imagine, so hard that itoften destroys the people who manageit. That’s all.

Flight riskUnder pressure from the airlines,federal managers are loosening

airport security rules andcompromising passenger safety.

Michael SchererMother Jones,

July/August 2004, pp. 15-17

Both men knew what they werewitnessing could bring down a plane.Over the [late November] 2003Thanksgiving holiday, Thomas Bittlerand Ray Guagliardi [pictured], federaltraining coordinators at BuffaloNiagara International Airport, werehelping examine outgoing luggage.Bittler, whose airport security exper-tise had earned him an award forexcellence, recalls watching asscreeners repeatedly failed to test bagsfor explosives as required by federallaw. When alarms sounded, signalingsuspicious bags, screeners did onlycursory inspections. Guagliardiremembers telling Bittler, “I’ve seen somany violations, I don’t know whereto begin.”

The two men, employees of theTransportation Security Administration(TSA), reported their concerns to theirboss. But he didn’t want to hear aboutit, telling them that they wereresponsible for assisting screeners, notsupervising them. So they wrote aletter detailing their concerns to theagency’s headquarters in Arlington,Virginia. Two months later, they wereout of work. A TSA spokeswomansays their positions were eliminatedbecause of a staff reorganization. Butboth men say TSA officials told themthat they should never have com-plained. According to Bittler, onesupervisor said, “If you people wouldjust learn to shut your mouths, youwould still have your jobs.”

[…]Guagliardi and Bittler, however,

have a different idea of what it meansto do the job. They have filed forfederal whistleblower protection status,making them 2 of 45 former TSAemployees who have claimed wrongfultermination to the U.S. Office ofSpecial Counsel. Both say they want tohonor the oath they took when startingat TSA — that safety would be theirtop priority. Guagliardi left histeaching career to do airport securitybecause he was too old at 38 to enlistin the military. “I thought it was mygeneration’s time to step up,” he says.Every day at the airport, he kept a pinin his pocket commemorating the 9/11hijacked planes. Bittler had been asecurity expert in the Air ForceReserve before he moved his familyfrom Ohio to New York so he couldwork at the Buffalo airport. “Thewhole purpose behind the 9/11Commission is to make sure that itnever happens again,” he says, exas-peration straining his voice. “It’s goingto happen again. Nobody is doinganything.”


Letters and articles

WBA action

Mary Lander

I’d like to take the opportunity ofextending my personal thanks tomembers of WBA for makingavailable articles on whistleblowing ontheir website and in particular to BrianMartin for his publications available athttp://www.uow.edu.au/arts/sts/bmartin/dissent/documents/.

I was not a WBA member when Ifirst read these articles. However,reading these articles helped me putthings into some perspective during aperiod in which I was the subject ofvictimisation. Most people who havebeen through it can appreciate just howdistressing it is. It’s even more dis-tressing when you find out just howlittle the authorities (who purport to bethere to ensure that delegations andauthorities, bestowed on management,are not abused) are actually prepared todo about it.

I’d also realised, when researchingthe subject, just how widespread thisproblem really is and was easily ableto draw parallels between the variouscommonly used tactics identified andthe treatment I had been subjected to.How easy it is for management tobypass “guidelines on proceduralfairness.” Without a doubt, theseguidelines are only put up for windowdressing. There is no obligation formanagement to follow publishedguidelines and no requirement toexplain why guidelines are notfollowed. As matters stand, guidelinesappear to be false and misleadingadministrative devices which can beignored altogether in the event it suitsmanagement’s purpose to do so.Guidelines are simply not worth thepaper they’re written on.

The system has been designed tofavour those who belong to thedynasties of power — there is no doubtabout that. Power is everything tothem. The interests of the public andwhat they do to employees is only asecondary consideration (if it’s aconsideration at all).

While it was 18 months ago nowthat I was victimised, it’s still the first

thing I think of when I wake up in themorning and the last thing I think ofbefore I go to sleep at night. It’s notsomething that you can easily forget orleave behind. It’s changed my life, myperspective on reality and my priori-ties. Perhaps one day those in powerwill realise that injuries of the non-physical type can be the cruellest ofall. They just never seem to heal.

Rather than become just anotherby-product of “the system,” I’d ratherbe pro-active and have offered to assistPeter Bennett, WBA Vice President, inCanberra. At the risk of embarrassingPeter, I’d like to also take this oppor-tunity of saying what a wonderful job Ithink he’s done in pursuing issuesregarding the victimisation of whistle-blowers with various authorities —who will have no choice other than tolisten eventually — and in representingthe organisation at various forums suchas the parliamentary public discussionson the Commonwealth Public InterestDisclosures Act. For those that may beinterested, the transcript can be foundat http://www.aph.gov.au/hansard/senate/commttee/s5488.pdf.

Suffice to say I’m pleased to beassociated with the organisation andhope I can help add some value to thegood work that has already been done.As a great man, Ralph WaldoEmerson, once said, “Ideas must workthrough the brains and the arms ofgood and brave men [and women], orthey are no better than dreams.”

Bulletproof governmentlies: how much longer?

Keith Potter

Two months ago I provided to anofficer of the federal Department ofAttorney-General evidence that asenior ranking Commonwealth officialcommitted perjury on two occasions inrelation to Bill Toomer, and theconsequent damage to him. My letteralso mentioned non-implementation ofa Royal Commission formal recom-mendation for independent outsideinquiry to ensure justice for Bill,whose case was reported as having

“raised wide and important considera-tions for the Commission.”

During related telephone discus-sions I felt that the officer was honest,sympathetic to Bill’s case, andgenuinely wished to assist. Nothingfurther was heard from that officer.

In early August I received threeshort paragraphs from an ActingAssistant Secretary who stated baldly,and without denying any of myevidence, that neither the Attorney-General nor the Department couldassist. [Why is it that difficult repre-sentations are usually answered in thismanner by acting assistant secretaries?No prize for correct answer.]

I replied that the Attorney-Generalcould either instruct implementation ofthe royal commission recommendationor recommend Cabinet or the relevantparliamentary secretary to compensateBill.

Successive government membersand ministers have repeated publicservice lies about Bill’s case over thepast 31 years, the last significantoccasion being in 2001. On thatoccasion the relevant parliamentarysecretary based refusal of compensa-tion on false information. Whenadvised of the correct facts he ignoredthem and continued to act in accor-dance with public service advice.

Bill’s solicitor appealed underseveral provisions of the Administra-tive Decisions (Judicial Review) Act,including that the decision could nothave been reasonably reached by anyreasonable person.

Two days before the Federal Courthearing, Bill’s solicitor was told by theAustralian Government Solicitor thattheir barrister, Richard Tracey QC, hadsuddenly discovered that he wasdouble booked and had been replacedby Tom Hall. Richard Tracey knewBill’s case intimately, having repre-sented the Commonwealth throughouta crucial 40 day AAT hearing, andbeen consulted on other occasions. Tothe best of our knowledge Mr Hall hadno prior knowledge of Bill’s case.

Twenty minutes before the start ofthe one-day hearing the AustralianGovernment Solicitor handed to Bill’ssolicitor, Alan Munt, a documentheaded “Outline of Written Submis-


sions of the Respondent.” It wassigned by Mr Hall. Pressed for timeand occupied with other aspects, andhaving studied the respondent’ssubmissions beforehand, Mr Muntunderstandably took the document atface value and did not read it. Therespondent’s prior submissions weresomewhat vague in regards to thereasons for refusal of compensation,and had been countered in Mr Munt’ssubmissions.

Upon reading the ‘Outline’ afterthe hearing, Mr Munt promptly faxedcopy to me. Paragraph 21 compressedthe reasons for refusal of compensationinto five very brief, clear and succinctsentences, four of which were totallyfalse. The fifth was a grossly mislead-ing half-truth.

Mr Munt promptly sought leave tosubmit an affidavit by Bill in rebuttal.Leave was refused. The Court disal-lowed the application for judicialreview, on the basis that the parlia-mentary secretary had acted in accor-dance with public service advice!

My complaint to the Attorney-General of lies told to the court by theAustralian Government Solicitor wasrejected on the grounds that the AGSwas simply explaining the Parliamen-tary Secretary’s reasons for disallow-ance. Whilst technically correct, thematter of lies told by public officialswas not addressed, and based on theprevious 31 years experience, neverwill be addressed objectively.

Bill’s case is but one of numerouswhistleblower cases that are drivinggovernment to do some windowdressing, most of which is obviouslydefective. It is no accident that each ofthe various legislations, and proposedlegislations suffer the same basicdefects! For example, there is noprotection if disclosure is made to aparliamentary minister or member.

Most cases that are proven beyonddoubt remain unresolved because noneof the various Australian governmentsgenuinely wish to encourage publicinterest whistleblowing.

Nor is it any accident that honourslists never include prominent publicinterest whistleblowers. Judges areblind to the selfless and enormouscontribution to the Australian publicby individuals such as Dr JeanLennane, Christina Schwerin, David

Berthelsen, Catherine Crout-Habel,etc.

Governments don’t recognise thewaste of public funds and damage tothemselves incurred by refusal to settlelongstanding nationally known whis-tleblower cases such as those of MickSkrijel, Tony Grosser, Jim Leggate,Kevin Lindeberg, Ray Hoser, BillToomer, etc. Until such individuals arecompensated, or at least accordedjustice that is seen to be just, thereputations of successive governmentswill continue to be damaged.

The two major parties will never begenuinely and significantly concernedfor truth in government until it isestablished by election outcomes thatthat this is a pivotal issue for swingingvoters. Please God, let the recentpublic statement by 43 former diplo-mats and military persons speaking upfor truth in government prove thecatalyst.

NSW’s IndependentCommission Against

Corruption — time to go?

Jean Lennane

NSW’s ICAC is in a dramatic phase.For the second time in its 16-year lifeit has a NSW Premier in the gun. NickGreiner in 1992 was found guilty ofcorrupt conduct and forced to resign.Now twelve years later Bob Carr is introuble for contempt of court, havingmade very public, unsolicited remarksclaiming his health minister had beencleared by evidence given to an ICACinquiry, long before the inquiry or theevidence was complete. ICAC alsorecently has made life difficult for acouple of other NSW parliamentarians,one of whom was forced to resign.

Could a body that clobbersarrogant or unethical politicianspossibly be anything but highlydesirable? Unfortunately such activi-ties have been extremely rare, whereasfrom its inception ICAC has routinelyclobbered the hundreds of whistle-blowers naive and foolhardy enough togo near it. It has investigated only atiny fraction of matters reported to it;has never tackled anything related toorganised crime; refused in 1993 to acton our information that corrupt police

were working there; and unlike itsHong Kong counterpart, has alwaysbeen willing to accept a claim ofignorance by the CEO of a corruptorganisation as a valid defence.

In 1995 a survey of our memberswho had reported corruption to ICACfound 95% rated ICAC’s performanceas ‘very bad’ or worse. Many hadsuffered severe damage from theirconfidentiality having been breached.(An extreme example of such damagewas a letter from ICAC in 1994 toFairfield City Council informing themof local MP John Newman’s confiden-tial complaint of corrupt conductagainst councillor Phuong Ngo.Newman was shot not long after.Phuong Ngo was later convicted of themurder.)

The response of the then Commis-sioner, Barry O’Keefe, was that oursurvey was not representative. Thiswas true, in that it was not a randomsample, but after ICAC later did itsown random and much larger survey,we were contacted by a whistleblowerwithin ICAC who claimed their report,‘equally damning’, was being sup-pressed. It was never released in full.

When current Commissioner IreneMoss took over, she to her credit askedfor a meeting with WBA, to try toaddress some of our concerns. Itappeared at that meeting that sheshared some of them, and in particularhad found the culture at ICAC, andattitude towards and treatment ofwhistleblowers, very different from theNSW Ombudsman’s office. It alsoappeared that she genuinely intendedto try to improve matters.

Unfortunately that didn’t happen.The Kite inquiry, which happenedwhile she was in charge, was a newlow from an organization whose cost-effectiveness and continued existenceWBA has been questioning for manyyears. John Kite had blown the whistleon the National Parks and WildlifeService’s alleged attempts to preventhis giving embarrassing evidence of itsnegligence to the inquest into theThreadbo disaster. The inquiry, afterinvestigating him rather than hisallegations, found he had forged aNPWS memo that appeared to confirmthem. The memo said, among otherthings, that “If he goes to ICAC we getour contact to deal with it.”


ICAC’s recommendation inDecember 2001 that Kite should beprosecuted for allegedly forging thememo was left in abeyance untilAugust this year, when it seems theydecided to press on with it. Interestingtiming, in that there is currently aninquiry into ICAC’s future, promptedby Commissioner Moss’ imminentretirement, and widespread dissatis-faction with its performance. Typical,unfortunately, that when needing someaction to help justify its existenceICAC appears to have chosen tocontinue crucifying a whistleblower.

Among its many other problems,ICAC and its commissioners haveseemed to have great difficultyrecognising conflicts of interest. Someexamples:

1. The Kite ‘smoking gun memo’mentioned above. One would think amemo that talks about getting our“contact in ICAC to deal with it”should not be investigated by ICAC.How could you be sure it wasn’t thecontact doing the investigation? Indeedit is hard to imagine that a contact, ifthere actually was one, could haveorganised a more favourable outcome.

2. The basic conflict involved inthe same body doing educa-tion/prevention of corruption, as wellas investigating it. Obviously the morecorruption you find, the less effectiveyour education/prevention must be. Byinvestigating and finding so littlecorruption, ICAC can claim it’s doinga great job of education/prevention.

3. The conflict involved in theprevious commissioner Barry O’Keefecontinuing with various external rolesduring his term, notably as head of theNational Trust. When someonecomplained to ICAC about the Trustallegedly misusing a legacy, O’Keefeclaimed the conflict was adequatelyaddressed by his delegating theinvestigation to another (necessarilyjunior) officer. No prizes for guessingthe outcome.

4. The conflict involved in thecurrent commissioner, Irene Moss,being married to the head ofMacquarie Bank, a major developerand political party donor, while ICACproduces reports like “A Guide tobuilding ethical business relationshipsbetween NSW public sector organisa-tions and the private sector”. Howcould ICAC properly and impartially

investigate any unethical mattersinvolving banks, developers, politicaldonations, and their relationship withNSW government policy and practicewhile a close relative of the commis-sioner is so prominently involved?

ICAC in my opinion has been anexpensive and damaging failure. Wewould be much better to have royalcommissions as and when needed,rather than a standing body that sorapidly can become part of the problemrather than part of the solution.

Dissent andwhistleblowing

Brian Martin

“If only those complainers would justget in line, then we could get on withthe task and be more effective.” Haveyou ever heard this sort of comment?The underlying assumption is thatagreement, cooperation, consensus,conformity — whatever term you wantto use — is beneficial for the group.Consequently, those who challengeorthodoxy are deemed to be selfish.

Actually, the reality is exactlyopposite, according to a readable bookby Cass R. Sunstein titled W h ySocieties Need Dissent (HarvardUniversity Press, 2003). Sunstein saysthat “Much of the time, dissentersbenefit others, while conformistsbenefit themselves.” (p. 6) Whistle-blowers certainly know that theyseldom benefit from their disclosures;more commonly they are ruthlesslypunished.

In making the argument thatdissent benefits society, Sunsteindescribes fascinating research on groupdynamics. Many findings show howreadily people will conform, evengoing so far as to deny evidencestaring them in the face. This propen-sity to conform leads to socialcascades. In one type of socialcascade, an informational cascade,people base their beliefs not on whatthey know themselves but on whatother people do or say.

For example, most scientists willmake their judgements about fluorida-tion or global warming based on whata few experts say, not on their ownindependent assessment of the

evidence. The same can apply inpolitics, business and other areas. Theresult can be an appearance ofunanimity when actually the informa-tion base is limited. A single dissenteror, even better, a group of dissenterscan puncture this cascade and lead tobetter decisions.

Another sort of cascade occurswhen people know that a belief iswrong but nonetheless go along withthe majority in order to keep in theirgood books. This is called a reputa-tional cascade. Bullying at work hasoccurred for decades, but for a longtime few people spoke out about it:they knew it was wrong but they didn’twant to go against prevailing opinion— or what they thought was prevailingopinion. Actually, most people dislikebullying. Dissenters break the silenceand benefit others.

Sunstein says “Freedom of speechprovides the key safeguard againstsenseless cascades. It opens up spacefor dissent by forbidding governmentfrom mandating conformity or frominsulating itself, and citizens generally,from disagreeable, unwanted, and evenoffensive opinions” (p. 96). To thisshould be added that freedom ofspeech is also needed inside organisa-tions. It is not just governments thatmandate conformity: corporations,schools, police forces and otherorganisations can be just as intolerantand, therefore, just as prone to poordecision making as a result.

Another phenomenon that Sunsteinanalyses is group polarisation. Whenpeople in a group deliberate about amatter, they often arrive at a moreextreme view than any of the individu-als started out with. For example, ifsome people who dislike the primeminister get together, after discussionthey will dislike the prime ministermore intensely than before. This canbe a dangerous process when juries,executives or politicians are makingdecisions about vulnerable people.Extremism in religion and politics isfostered by group polarisation.

Once again, dissent is valuable.Groups are less likely to succumb todamaging polarisation if dissenters arepresent.

Sunstein is sympathetic to whistle-blowers, but gives little attention tothem. Noting that “Better outcomescan be expected from any system that


creates incentives for individuals toreveal information to the group,”Sunstein suggests that a “companymight inform employees that itwelcomes internal whistleblowers andwill not punish anyone who revealsinformation about wrongdoing on thepremises or who makes suggestionsabout how things might be donebetter” (p. 71). This would be fine ifcompanies actually practised what theypreached. Many whistleblowers havelearned that reality does not match therhetoric.

Some whistleblowers are actuallyconformists, not dissenters. Conformistwhistleblowers just do their job, whichthey believe means reporting problemswhen they see them. They conform tothe officially stated policies of theorganisation, or to ethical or profes-sional norms, and this brings them intoconflict with the actual power system,which is different. These sorts ofwhistleblowers are usually unpreparedfor reprisals, which hit them very hard.People who consciously dissent oftenhave a better feel for what the responsewill be.

Why Societies Need Dissentconcludes with this statement: “Well-functioning societies take steps todiscourage conformity and to promotedissent. They do this partly to protectthe rights of dissenters, but mostly toprotect interests of their own” (p. 213).Those who have suffered reprisals forspeaking out might conclude that wehave a long way to go to become a“well-functioning society.”

Professionalresponsibility:whistleblowing

Kim Sawyer

I was recently asked to give a lectureon whistleblowing to a group of third-year information systems students inthe subject Legal and EthicalFrameworks at the University ofMelbourne. This is an edited andextended version of that lecture. Iacknowledge the assistance of DrMartin Gibbs.

The question often arises why youshould be interested in ethics. I am

reminded of an old quote pertaining tomorality which has applicability toethics. “There is no good reason to beethical.” However, perhaps that ischanging, especially in the industriesin which you will be working.

Consider first the rise of cyberfraud. On August 4 of this year, theAsian Wall Street Journal reported thatin 2003 there were 166,000 complaintsof internet-related fraud in the UnitedStates. Internet-related fraud is nowgrowing in the US at an annual rate of60%. Cyber fraud is big business, andit is a business that you will not be ableto ignore. For many of you, your jobsin the future will depend on theintegrity of information systems. Frauddebases those systems and reducesyour job opportunities.

More generally, fraud, includingcyber fraud, is an enormous globalproblem, arguably the most importanteconomic problem we face. Fraudcosts firms and governments approxi-mately 6% of average revenues. Butthere is another dimension to fraudwhich is more relevant to you. Fraud istypically committed by the employeesof firms. The 2002 global survey offraud conducted by KPMG found only27% of fraud as externally generated.And 51% of the fraud (by value) iscommitted by managers. What thatmeans is that during your workinglives, you will probably encounter afraud, it will most likely be committedby an employee of your own firm, andit will possibly be by the manager youreport to. You then have two problems.First, you may have to report the fraud.Secondly, you may to blow the whistleon your own supervisor.

Why should you blow the whistleon fraud? In simple terms, corporatemalpractice costs jobs. The tradinglosses incurred by the NationalAustralia Bank in 2003 and 2004,which were first uncovered by awhistleblower, have led to significantearnings downgrades for the NAB, andan 18% decline in the NAB share pricesince February. As the AustralianFinancial Review reported on August6, those trading losses will cause joblosses, particularly in informationtechnology. The $30 million fraud atthe Victoria University of Technology,first identified by a whistleblowermore than four years ago, but onlyprosecuted in August 2004, is expected

to lead to a loss of job opportunities atthe university.

The 8th Global Survey of fraud byErnst and Young found that whistle-blowing is second behind internalcontrols as most likely to detect fraud.It is more likely to detect fraud thaninternal audit, external audit, acciden-tal detection or management reviews.The Australian Compliance Instituteconcluded that “The idea of fraudbeing uncovered through the auditprocess is myth. Less than 2% of fraudis uncovered through this means.”

Whistleblowing has conferredsubstantial benefits on modern society.In the United States, changes in theregulations of most industries, includ-ing the tobacco industry, the nuclearindustry, and the defence industry wereattributable to the actions of whistle-blowers. The investigation of theSpace Shuttle disaster in 1986 primar-ily depended on a whistleblower, ashas the investigation of 9/11. InAustralia, royal commissions into thepolice forces of Queensland, NSW andWA have been instigated by theactions of whistleblowers. Whistle-blowers are responsible for substantialchanges in banking and insuranceregulation, in transport regulation, ineducation and in competition policy. Inboth the US and Australia, whistle-blowing has underwritten a new waveof corporate reform as represented inthe Sarbanes-Oxley Act (US) and inClerp 9 (Australia). In sum, whistle-blowing is cleaning and reforming ourmodern system.

However, blowing the whistle oncorporate malpractice is one of life’sultimate tests. An employee of a firmhas a number of loyalties. In a whistle-blowing problem, these loyaltiesconflict. The principal conflict isbetween the whistleblower’s innatevalues of right and wrong and theirloyalties to their workplace colleagues.The American Association of Profes-sors (1943) expressed the loyaltiesconflict for a professor as

As a member of his community, theprofessor has the rights and obliga-tions of any citizen. He measuresthe urgency of these obligations inthe light of his responsibilities to hissubject, to his students, to hisprofession, and to his institution.


There are similar expressions in mostprofessional codes of ethics. TheAustralian Computer Society Code ofEthics states that the computerprofessional

1. Must place the interests of thecommunity above those ofpersonal or sectional interests.

2. Must protect and promote thehealth and safety of those affectedby my work.

3. Must not knowingly engage in, orbe associated with, dishonest andfraudulent practices.Must takeappropriate action if I discover amember, or person who couldpotentially be a member, of theSociety engaging in unethicalbehaviour.

Whistleblowing confers substantialbenefits on society, but substantialcosts on the whistleblower. A 1990study of US whistleblowers cited inGrace and Cohen’s Business Ethics:Australian Problems and Cases (1998)found that for 233 whistleblowers,90% had lost their jobs or weredemoted, 27% faced lawsuits, 26% hadpsychiatric/medical referrals, 25%alcohol abuse, 17% had lost theirhomes, 15% got divorced, 10%attempted suicide and 8% werebankrupted. In my own whistleblowingproblem, of the 15 colleagues whosupported me, twelve had left theuniversity within two years of theproblem, either through non-renewalof contract, dismissal or resignation.While the career of the whistleblowerusually declines, the persons on whomthe whistle has been blown oftenprosper. As noted by Jean Lennane,President of Whistleblowers Australia,the divergence between the careers ofthe whistleblower and the respondentis one of the best measures of corrup-tion.

The paradox that whistleblowers,those who confer benefits on society,also pay the price, has compelledgovernments to act to protect them.This protection has come in a numberof forms. In the US, this protection hastaken the form of a 1968 amendmentto the First Amendment (freedom ofspeech) to cover employees, theWhistleblower Protection Act of 1989and 1994, and the Sarbanes-Oxley Actof 2002. In Australia, there arewhistleblowing protection acts in most

states and territories, a limited federalact for federal employees, Clerp 9Audit Reform and Corporate Disclo-sure Bill (2003), and most recently theWorkplace Relations Act (2004),which includes some protectiveprovisions for private sector whistle-blowers. But Australia does not havethe equivalent of the most powerful USwhistleblowing legislation, the FalseClaims Act. Under the US FalseClaims Act, the whistleblower caninitiate lawsuits on behalf of thegovernment against fraudulentclaimants on the government. This lawpermits fraud recovery with penaltiesof treble damages. The whistlebloweris entitled to 15% of the cost that isrecovered, and is entitled to protection.In a 1996 study of the False ClaimsAct for the Taxpayers Against FraudCenter in Washington, WilliamStringer found that the False ClaimsAct was a powerful mechanism forfraud recovery, and for frauddeterrence. Australia needs similarlegislation.

And now for a reality check.Protection: What protection? There hasbeen no prosecution for victimizationof a whistleblower under anyAustralian legislation. The refrain ofwhistleblowers is uniform across alljurisdictions in Australia. Those towhom they take their complaints,ombudsmen, auditors, regulators, anti-corruption bodies, often don’t investi-gate key complaints, don’t interviewwhistleblowers, and don’t publish theirinquiries. This suggests that thecommitment to whistleblowerprotection in Australia is cosmetic, notreal. And this is the contention ofwhistleblowers. This contention issupported by the fact that none of theprincipal recommendations of the twoSenate inquiries into whistleblowing inAustralia has ever been enabled. Andthose inquiries were in 1994 and 1995.A further inquiry is long overdue.

Unsurprisingly, Australians arereluctant whistleblowers. A recentsurvey by Ernst and Young and theAustralian Compliance Institute showsthat increasing number of employeesare afraid to report unscrupulous workbehaviour for fear of reprisal. 80% aremore likely to report unethicalbehaviour on the condition ofanonymity, but 35% believed that thepromise of anonymity would not be

kept. 60% of workers surveyed had nowhistleblower program in theirworkplace, but felt the need for one.

Is Australian different? Australiaappears to be different in three mainrespects. First, our legislation isfragmented across states and territo-ries, the federal legislation is verylimited, and we have no false claimsact. The evidence points to nothingmore than a cosmetic commitmentfrom governments to protect whistle-blowers. Secondly, it is the divergenceof opinion between whistleblowers andnon-whistleblowers that makesAustralia different in terms of whistle-blowing. Most Australians who are notwhistleblowers believe that Australia isvirtually corruption free. Mostwhistleblowers believe that Australia iscorrupt, and significantly so. Thirdly,Australia is different because ofmateship. In Australia, tightlycontrolled networks dominate.Mateship, not merit, is often the maindeterminant of acceptability. Byblowing the whistle, the whistleblowerceases to be a mate.

As a future employee, you face thefollowing dilemma. At some point inthe future, your professional and publicresponsibilities may require you toblow the whistle. But, it may be atconsiderable cost and risk. And youmay lose your mates. You will needcourage without mateship. You willneed some guidance. The best guidethat I have found to whistleblowingsurvival is provided by The Whistle-blower’s Survival Guide: CourageWithout Martyrdom by Tom Devine.From my experience, I add thefollowing points.

1. Have low expectations.Whistleblowing is a survival test, andthere are many hurdles. Learn to bedisappointed and learn from yourdisappointments.

2. Never overstate your positionand never use personal abuse. Whistle-blowing is a battle for credibility.

3. Obtain an independent legalopinion to justify your position.Regrettably, those who judge whistle-blowing complaints prefer independentlegal opinion to a whistleblower’sopinion.

4. Ensure your documents areprecise, well sequenced and as legalis-tic as possible. Avoid excessivecomment. Your documents reflect you.


You should also be aware that anumber of whistleblowing supportservices are emerging. In Australia,apart from Whistleblowers Australia,there is STOPline which provideswhistleblowing systems for companiesin addition to investigations ofwhistleblower complaints. There isa l s o a n i n t e r n e t s e r v i c eYourcall.com.au, which provides afacility for anonymous whistleblowingusing the internet. These types ofservices are likely to be increasinglyadopted by Australian companies.With fraud in Australia amounting toat least $6 billion annually, Australiancompanies are looking for solutions.

I am often asked whether I wouldagain blow the whistle given what Iknow now. My answer to that questionis probably best provided by a quotefrom Mohandas Gandhi

There is higher court than the courtsof justice and that is the court ofconscience. It supersedes all othercourts.

_____________________

N o t e : After this lecture I wasapproached by two students who arecurrently experiencing potentialwhistleblowing problems.

WantedPoverty-loving writer to get

around defamation restraints

If you can write well and don’t mindliving on a low income, read on to

find out how you can make acontribution to a more open society.

Defamation law is supposedlydesigned to protect reputations, but itis often used to stifle free speech.Defamation cases are typically slow,expensive, involve highly technicaldiscussions and have unpredictableresults. Many people are inhibitedfrom speaking out by the risk of beingsued. Robert Pullan’s book GuiltySecrets: Free Speech and Defamationin Australia (Sydney: Pascal Press,1994) provides numerous examples.

In the United States, where freespeech is constitutionally protected,there are hundreds of cases wherecompanies and individuals use

defamation suits as a means of intimi-dation, even when there is little chanceof winning in court. These arecommonly called Strategic LawsuitsAgainst Public Participation orSLAPPs (George W. Pring andPenelope Canan, SLAPPs: GettingSued for Speaking Out, Philadelphia:Temple University Press, 1996). InAustralia, there are plenty of similarcases but you could even be threatenedwith a defamation suit for using thelabel SLAPP to describe someone’slegal action!

Defamation law doesn’t protectreputations that well, either. Just thinkof John Marsden, whose defamationsuit against Channel 7 led to hisreputation being damaged muchfurther in the ongoing media coverageof the case. Or just think of all theeveryday instances of defamation thatthe law does not address becausepeople don’t have the time, energy ormoney.

The internet now provides a bettermethod for defending reputations.Responses to damaging allegations canbe put in emails or on websitesquickly, cheaply and without the needfor legal or other experts. Admittedly,the net doesn’t give equivalent cover-age to the mass media, but it’s atremendous improvement over previ-ous options.

There’s one catch: the author andthe publisher can still be sued. Thepublisher on the web is an internetservice provider. If the ISP gets coldfeet and asks for an allegedly defama-tory document to be removed from awebsite, or cancels an email account,the solution is to find another ISP,especially one in a country wheredefamation laws are less draconianthan Australia. That leaves the authoras the major vulnerability.

If you’re a freedom-loving writerwho doesn’t mind having few assets,you can help. You can write the thingsthat people are afraid to say because ofdefamation law, publish them on awebsite (probably overseas) and letrelevant people know about it throughemails.

You can expose corruption andhazards to the public and reply toattacks on dissidents. Society greatlyneeds your contribution.

Yes, you could be sued, but sincethere’s no money in it for the plaintiff,

this is less likely than if you havesignificant assets. In the McLibel casein the UK, two indigent anarchistsdefended against a McDonald’s libelsuit, resulting a public relations fiascofor the fast food giant. Corporationsare now much more wary about howlegal action can backfire.

If you pick your cases with somecare, selecting those where the publicinterest is served by publication, youmight well be able to attract pro bonolegal support if you’re sued. Thisprospect would be a further disincen-tive for potential plaintiffs.

In fact, there’s quite a careerawaiting you. Hundreds of dissidentsand whistleblowers will greatlyappreciate your help. Investigativejournalists, who often see the juiciestparts of their stories cut on the adviceof defamation lawyers, wouldwelcome your services.

No doubt the opponents of freespeech will try to discredit you andthink of innovative ways to attack you.For greater protection, it would bewise to live outside Australia.

You, plus your friendly ISP, willserve in essence as a “defamationhaven,” which is analogous to a taxhaven but serves a much more worthypurpose (see http://firstmonday.org/issues/issue5_3/martin/index.html).

For more information, contactBrian Martin, International Director,Whistleblowers Australia, PO BoxU129, Wollongong NSW 2500,[email protected],www.uow.edu.au/arts/sts/bmartin/.


Public Interest Disclosure Act 2003

PUBLIC INTEREST DISCLOSURE LODGEMENT FORM

1. PERSONAL DETAILS

Family Name: _____________________________________________________________

Given Name: ______________________________ Gender (please circle): M / F ______

Title (please circle): Mr, Ms, Mrs, Miss ______Date of Birth: ______________________

Address: _________________________________________________________________

________________________________________________________________________

Home Telephone No: ___________________ Work Telephone No:__________________

Mobile:_______________________________ Email address: ______________________

2. DISCLOSURE DETAILSName of the Public Authority(ies) to whichthe Disclosure Relates: ______________________________________________________

Do you work for a public authority? Yes

No

If Yes, which public authority and what isyour position title?

Does the disclosure relate to one or moreindividuals?

Yes

No

If yes, please provide names and positionsheld by person(s) in the public authority

This is an official lodgement form for a disclosure made underthe Public Interest Disclosure Act 2003. An informant should

ensure that they fully understand the rights and responsibilitiesrequired under this legislation before the form is completed and

signed. Appropriate advice should be gained before anydisclosure is made.

Public Interest Disclosure Act 2003Public Interest Disclosure Lodgement Form Page 1 of 3



PUBLIC INTEREST DISCLOSURE LODGEMENT FORM CONTINUED

Please tick box(es) on the area relevant to your disclosure:

Improper conduct Irregular or unauthorised use of

public resources

An offence under State law,including corruption

Substantial unauthorised or irregularuse of, or substantialmismanagement of public resources

Administration matter(s) affectingyou

Conduct involving a substantial andspecific risk of injury to public health,prejudice to public safety or harm tothe environment

When did the alleged events occur?___________________________________________

Summary of disclosure:______________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

Description of any documentation provided or names of witnesses: ___________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

Have you reported this information to anyother person or agency?

Yes

No

If yes, please provide details




PUBLIC INTEREST DISCLOSURE LODGEMENT FORM CONTINUED

YOU SHOULD READ THE FOLLOWINGINFORMATION AND SIGN AT THE END OF THIS FORM

3. ACKNOWLEDGMENT

I acknowledge that I believe on reasonable grounds that the information contained inthis disclosure is or may be true.

I have been informed and am aware that:

1. I will commit an offence if I know that the information contained in thisdisclosure is false or misleading in a material particular, or am reckless as towhether it is false or misleading in a material particular.

Penalty: $12,000 or imprisonment for one (1) year

2. I will forfeit protection provided by the Public Interest Disclosure Act 2003 if Ifail, without reasonable excuse, to assist a person investigating the matter bysupplying requested information.

3. I will forfeit the protection provided by the Public Interest Disclosure Act 2003if I subsequently disclose this information to any person other than a properauthority under the Act.

4. I will commit an offence if I subsequently make a disclosure of informationthat might identify or tend to identify anyone as a person in respect of whomthis disclosure has been made under the Public Interest Disclosure Act 2003,except in accordance with section 16(3) of that Act.

Penalty: $24,000 or imprisonment for two (2) years

Signed: ______________________________

Date: ______________________________

For Office Use Only:

Register Number: __________________________



Whistleblowers Australia contacts

ACT contact: Peter Bennett, phone 02 6254 1850, fax 026254 3755, [email protected]; Mary Lander,phone 0419 658 308; [email protected]

New South Wales“Caring & Sharing” meetings We listen to your story,provide feedback and possibly guidance for your next fewsteps. Held every Tuesday night 7:30 p.m., PresbyterianChurch Hall, 7-A Campbell St., Balmain 2041.General meetings are held in the Church Hall on the firstSunday in the month commencing at 1:30 pm. (Pleaseconfirm before attending.) The July general meeting is theAGM.Contact: Cynthia Kardell, phone/fax 02 9484 6895;messages phone 02 9810 9468; [email protected]: http://www.whistleblowers.org.au/Goulburn region: Rob Cumming, 0428 483 155.Wollongong: Brian Martin, 02 4221 3763.Website: http://www.uow.edu.au/arts/sts/bmartin/dissent/

Queensland contacts: Feliks Perera, phone/fax 07 54488218; Greg McMahon, 07 3378 7232 (a/h) [alsoWhistleblowers Action Group contact]

South Australian contacts: Matilda Bawden, 08 82588744 (a/h); John Pezy, 08 8337 8912

WhistleEditor: Brian Martin, [email protected], 02 4221 3763,02 4228 7860Associate editors: Don Eldridge, Isla MacGregor, KimSawyer.Thanks for Cynthia Kardell and Patricia Young forproofreading this issue.

Public interest containment

If you want to make a public interest disclosure in WesternAustralia under the new whistleblower law, there’s a three-page form to fill out. It is reproduced in this issue on pages17-19.

Take notice especially of the third page. You have toagree to assist anyone investigating the matter, to keepsilent about the matter (except for communicating to “aproper authority under the Act”) and not to say anything thatmight identify anyone involved in the matter. If you fail inany of these regards, not only do you lose protection underthe act but you could be fined or go to prison.

Personally, I think this law might be better titled the PublicInterest Containment Act. It discourages the very thing thatworks best: informing others. I wouldn’t be putting a lot oftrust in the promised protection, either.

You are probably safer going public immediately. Youmight suffer harassment and dismissal but at least youaren’t muzzled and don’t risk going to prison.

Brian Martin

Whistleblowers Australia membershipMembership of WBA involves an annual fee of $25, payable to WhistleblowersAustralia, renewable each June. Membership includes an annual subscription to TheWhistle, 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 annualsubscription fee is $25.

The activities of Whistleblowers Australia depend entirely on voluntary work bymembers and supporters. We value your ideas, time, expertise and involvement.Whistleblowers Australia is funded almost entirely from membership fees, donationsand bequests.

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

the whistle - bmartin

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