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Whistleblowers

In 1991, a group called Whistleblowers Australia was formed. I knew about it from the beginning through correspondence with the founder John McNicol. In 1993 I joined the national committee of the organization. At that time the president was Jean Lennane, a psychiatrist who had worked for a government hospital, spoken out about cuts to health services, and been dismissed. The secretary, Lesley Pinson, had been a whistleblower in the railways and lost her job. The treasurer, Vince Neary, an engineer, was also a railways whistleblower.

In fact, most members of Whistleblowers Australia were whistleblowers. Hearing their stories, I learned an enormous amount about the dangers of speaking out and about the predictable patterns of attacks on whistleblowers. The same methods and outcomes were found in government departments, schools, churches, police departments, and private companies.

Typical whistleblowers are conscientious employees who see something wrong—corruption, abuse, hazards to workers or the environment—and report it to their bosses or others up the chain of command. Instead of the problem being investigated, they come under attack themselves. This is often a total shock to their self-understanding: their sense of how the world works is undermined, causing bewilderment and self-doubt.6

Most whistleblowers are ostracized—this cold-shoulder treatment seems almost universal and very hard to handle. They are subject to petty harassment. Rumors are spread about them. The serious reprisals include reprimands, demotions, referral to psychiatrists, punitive transfers, dismissal, and blacklisting. As well as losing jobs and sometimes having their entire career derailed, with drastic financial consequences, whistleblowers also suffer terribly in their personal lives, with ill health and damage to relationships commonly reported.

Whistleblowers speak out because they believe the system—or some part of it—works. In fact, a lot of them didn’t think of themselves as whistleblowers at all. They were just doing their jobs, reporting a problem to the boss—a financial discrepancy, a hazard at work—and suddenly found they had become the target.

When whistleblowers understand what is happening, they often seek justice by going to higher authorities, for example reporting the problem to their boss’s boss or the chief executive officer or making a formal complaint to a grievance body internal to the organization or going outside to an ombudsman, auditor- general, professional body, anticorruption agency, court, politician, or some other official body. The trouble is that this hardly ever works.

Vince Neary, the railways whistleblower, went to his boss, the chief executive officer, the auditor-general, the ombudsman, his local member of parliament, and the Independent Commission Against Corruption, among others.

None gave much satisfaction in addressing his concerns, namely unsafe signaling processes and unaccounted expenses—and the higher up he reported the problem, the worse the reprisals: he was ignored, ostracized, reprimanded, demoted, and eventually dismissed.

Bill De Maria carried out a large survey of Australian whistleblowers; they reported being helped in less than one out of ten approaches to official bodies and sometimes they were worse off.7 What is going on? Essentially a whistleblower is a single person who is speaking truth to power. If every worker who spoke out about abuses at work—payoffs, special deals, unsafe operations, bullying, hiring of cronies—was vindicated, the entire system would come under threat. There are way too many dodgy operations for any agency to vindicate more than a tiny minority of complaints. Energetic official bodies are typically starved of funds, burdened with onerous bureaucratic reporting duties or— if they start tackling corruption too high in the system—have their powers taken away.

Jean Lennane, Whistleblowers Australia’s first president, said that only two things reliably aided whistleblowers: meeting other whistleblowers, which helped them stop blaming themselves and realize why they were being attacked, and media coverage.

Yes, media. Of course the media are themselves subject to defamation threats and actions. Indeed, they are juicy targets because they have so much money. Quite a few Australian politicians have built holiday homes with payouts obtained after suing the media for some derogatory comment. Some, it is said, have paid staff members to scour the media looking for pretexts to sue.

This use of defamation law is one of the reasons why Australian media are so cautious about breaking stories. From 1965 to 1975, Robert Askin was premier of New South Wales, Australia’s most populous state. He was officially lauded, indeed awarded a knighthood. Yet Askin was widely known in media circles as being corrupt, receiving brown paper bags filled with cash to allow gambling and prostitution to thrive. But there were no news stories about this during his time in office. Shortly after Askin died, The National Times ran a front-page story titled, “Askin: Friend to Organised Crime.”8 Australian defamation laws do not allow the dead to sue.

So Australian media are quite cautious about what they publish. Nevertheless, they are receptive to whistleblower stories, which often score high on news values: personalities and powerful organizations are involved and the tale of a courageous employee being victimized resonates with audiences.

Good journalists will present both sides to a whistleblower story, but the impact is usually very damaging to the organization. For this reason, organizational elites do whatever they can to limit media coverage. They encourage whistleblowers to use official channels, and they offer generous settlements with legal conditions that no further public comment be made.

In the stories from whistleblowers, I noticed another recurring theme: defamation threats. Whistleblowers seek to speak out in the public interest. What better way to shut them up than to threaten to sue them? That led me to say that if Australian governments were really serious about assisting whistleblowers, they would reform defamation laws and get rid of laws preventing government employees from speaking out about anything to do with their jobs. Instead, governments are quick to pass whistleblowing laws that don’t work.

Law reform commissions in Australia have been recommending changes to defamation laws for decades, but governments have repeatedly ignored them. I realized that defamation law reform was not a productive way to help whistleblowers, at least not in the short term. So what is? My answer is knowledge and skills.

Jean Lennane urged me to take over from her as president of Whistleblowers Australia, and in 1996 I did. Defamation was high on my priority list and now I felt more commitment to a constituency, the two hundred or so members of the organization plus numerous others who contacted us each year. I decided to write a leaflet on defamation.

It was a hefty leaflet: eight large pages with plenty of text. I included a description of what defamation law is, listed the problems with it along with examples—such as the Alan Roberts case—and described some responses.

I then went to considerable lengths to get everything in the leaflet exactly right. To make a single mistake in describing the law would undermine the leaflet’s credibility. I sent drafts to lots of people, including whistleblowers— the sort of people the leaflet was aimed at—and legal experts. Judith Gibson, a barrister specializing in defamation who also edited the magazine Defamed, was very helpful; her check of the legal details gave me confidence.

Having produced the leaflet, titled “Defamation Law and Free Speech,” I circulated it to anyone who might be interested, such as whistleblowers who contacted me for assistance. As president of Whistleblowers Australia, suddenly lots of people wanted to talk to me. I had thought I had a good grasp of the issues before, but soon I was overwhelmed with case after case.

 
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