The Whistle No. 113, January 2023 - Brian Martin
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“All that is needed for evil to prosper is for people of good will to do nothing”—Edmund Burke
The
Whistle Newsletter of Whistleblowers Australia (ISSN 2205-0299)
No. 113, January 2023
At the WBA conference, November 2022, from left:
Peter Fox, David McBride, Troy Stolz, Kent Quinlan, Jeff Morris, Sharon Kelsey
Articles
Thirty years on and match for their would-be tormentors and investigating only the very serious
they’ve done us proud, thirty years on things.
still they do us proud from where it all began with the class of Unmeritorious recruitments are very
Cynthia Kardell 1992. common in a world where nepotism is
another word for networking, where
IN MARCH 1992 a group of hardy souls Carol O’Connor wondered about call- jobs for the boys are seen as cost-
gathered on a boat on Lake Macquarie ing her story “In plain sight” because efficient and applying the rules an
to establish Whistleblowers Anony- child sex trafficking was always in plain unnecessary use of red tape. Clearly, if
mous. By March the following year it sight. Even though it took 30 years for you could persuade your employer that
had morphed into Whistleblowers New Zealand, like Australia, to do more it would be cheaper to be on the side of
Australia. So, depending on where you than turn away from their shameful the angels, rather than worry about how
start counting from, we’re thirty years indifference. it might play out in reputational terms,
old and still pushing for legislation that I wrote about Carol’s story in the then we’d have won the war, not just the
is more than just words on a page when October 2021 issue of The Whistle after battle, and building an ethical culture at
it comes to affording us protection. one of those children, now a thirty- work would become a whole lot easier.
Luckily, we’ve remained true to our something woman, who I only know as
roots, getting the press and our politi- M, wrote to Carol through a former
cians and others involved sooner rather colleague.
than later whether anonymously or not, Carol used a timeline and a couple of
depending on what works best to get the other slides including a page from M’s
job done. letter, to tell her own story through the
Our annual conference on Saturday window offered by M’s letter. Because
19 November marked a return to in- M understood just how scared Carol was
person meetings after Covid-19. And if when a man broke into her home one
the class of 1992 against the backdrop of night and bashed her. And how terrify-
the Wood Royal Commission into po- ing it must have been to realize just how
lice corruption was anything to go by, many in positions of power were Jane raised concerns about a series of
then the class of 2022 didn’t disappoint. involved. She had nowhere to go and potentially corrupt recruitment pro-
Thirty years on, they’re sassy, irrev- eventually she had to flee her own cesses over a two-year period to the end
erent, cutting and very droll when it country for the safety of Scotland. of last year. Appointments were made
comes to getting under their tormentor’s M was only a child, but she knew with no regard to principles of merit-
skin. Because yes, those tormentors are why they were fellow travellers, saying based recruitment. Jane pressed them
even more brazen and in-your-face than to Carol across the years, “You listened further, thinking her six PIDs showed a
before. Nothing is beyond the pale in a to me. And I was scared for you. I pattern that should have been identified
world where national security interests thought you were dead. I thought they much earlier. Unfazed, her employer
remain code for covering up serial lying had killed you. I thought it was my questioned whether she had even made
and hypocrisy on an industrial scale. fault.” It’s a harrowing story that rings a PID and the manager went on paid
down through the ages and, even today, leave for reasons that remain a mystery.
we still mostly turn away. Carol didn’t. I suspect she’s taken stress leave after
M knew she didn’t and in the end that being “counselled” for misconduct and
was what mattered to M in the thirty that the management prefers to resolve
years it took for the state to take it in the impasse as a worker’s compensation
hand and for Carol to process the hurt claim rather than sack her outright. It’s
and the harm. a nasty game that relies on manipulating
Carol hasn’t been idle in the interven- privacy and confidentiality laws to keep
ing years. She’s recently completed a each strand of the story separate so that
doctoral thesis on the harm done to 21 the story can’t be brought together
whistleblowers in the UK. What else, easily.
pray tell? Congratulations Dr O’Connor. Jane remained focused, taking her
Thirty years have seen a lot of change employer’s failures to the Ombudsman
driven by the internet and smartphones for its consideration. The Ombudsman
Jane Anderson used her whistleblow-
on both sides of the fence and, yes, by has since advised it has referred the
ing work as a case study to assess the
legislation. The good news is the class “fraudulent” recruitment to ICAC.
likely financial and other costs incurred
of 2022 are seen in the media as both Never one to give up, she is waiting to
by her employer in deciding not to
worthy and newsworthy. They have hear whether they might consider it
disturb the status quo. I think she’s on to
become household names, with their prudent after all to refer all of the PIDs
something here, given the way eco-
stories sparking dramas and documen- and circumstances to ICAC.
nomic policy is routinely used to justify
taries. They’ve proved more than a
2 The Whistle, #113, January 2023
Jane estimates her employer’s costs current government is helping Wood- sal. Local media still don’t want to know
at about $1.7 million to avoid dealing side on a number of fronts, in return for and the former mayor and the seven
with the PIDs: that’s a lot of money to them keeping our government’s secrets councillors are having to pay their own
ensure soft corruption remains their secret. Like how billions of dollars in legal costs after all.
operational norm. If Jane could get the helium gas had been hidden from the Sharon used her talk to do a bit of
Ombudsman to take it up as an issue, she Timorese for decades: something that informal research into why whistle-
would have pulled off the challenge of former Victorian Labor premier Steve blowers do not always pursue a remedy
our times. Bracks says was “our betrayal of the all the way to the end. She set the scene
Timorese”. by canvassing the many reasons why
Bernard Collaery’s talk was fraught people don’t blow the whistle, before
with difficulty from the outset. Try as asking about 35 of those present to
we might, he couldn’t be connected on randomly select a ticket with a reason
Zoom. We had our Brian Martin with us for bailing out written on it. Then each
from Wollongong and Jeannie at our participant was asked to sit down when
end, but no Bernard. We wondered out the reason on the ticket reflected their
loud whether ASIO had nothing better own reasons for pulling out. It seems we
to do, but decided it was more likely weren’t any different from most. Per-
Zoom had failed us when we needed it haps it’s fitting though that Troy Stolz
most. Bernard also called for a royal com- had randomly selected the ticket for
mission into our spy agencies along the never giving up.
lines of the Hope Royal Commissions in Sharon got us laughing, a lot. She was
1974 and 1984. One thing is very clear, strutting her stuff when the NSW
the Dili bugging scandal still has a long Ombudsman and his assistant arrived
way to run. outside. We were clearly in our element
and loving it. I watched and found
Sharon Kelsey has a steely resolve well myself wondering how many whistle-
So, after fussing around for quite a while suited to whistleblowing. It was there as blowers the Ombudsman counts as
we settled for amplifying a telephone a young girl when she decided to colleagues and peers and whether what
call through the venue’s system. Mind, become a police officer and later when he was witnessing fitted with his pre-
he didn’t disappoint. I have seldom seen she became a lawyer with Victoria’s conceptions of who we were. Perhaps
an audience so locked on. watchdog, the Independent Broad-based we were not the mob he was expecting?
We all know the story, so he could cut Anti-Corruption Commission. I suspect
to the chase: focussing on the dreadful that becoming the chief executive of- David McBride has become very well
outcomes for him, Witness K and our ficer of the Logan City Shire Council known since taking his allegations to the
country. It was a measured, but deadly offered a way to put some of her ideas court of public opinion. The ABC and
account. Deadly in the way our Indige- into practice. Which may be why, within Fairfax press ran with it at every turn
nous cousins use the term. weeks of taking the job she raised her and to date, at least three others have
Three in the audience lined up to ask concerns about the mayor’s conduct come forward, but David is the only one
questions, myself included. I wanted to with Queensland’s watchdog, the Crime facing criminal charges. His actions
know whether, rather than pardon and Corruption Commission (CCC): the forced the former Government into es-
Witness K, we should be seeking to have former major will face trial next March tablishing an Independent Office of the
the charges withdrawn. Bernard be- for official corruption and misconduct Investigator to prosecute the alleged
lieves the charges should be withdrawn offences and perjury. Sharon was uncer- murders identified by the Brereton
and the conviction openly expunged emoniously and very publicly dumped. Report: although it is very clear the
from the record both for us as a nation The local media and seven of the government would’ve done none of this
and Witness K, as he needs ASIO’s councillors sided with the disgraced had they been able to get away with it.
permission for even the smallest of mayor and Sharon’s personal story David is the sacrificial lamb to ease their
things like venturing outside a 12- slipped from public notice as the politics guilty resentment after being caught out.
kilometre radius. played out in spectacular form with the David is a lawyer. He’s trained to
I followed up with another question, Local Government Association eventu- apply the law. He explained how early
asking whether once in government he ally forcing the resignation of the CCC’s in his military career he applied the law
thought Labor had picked up where the chair and two major inquiries into it and unflinchingly, at the direction of his
Coalition had left off? The Coalition had Queensland’s public service. superiors without empathy or any real
been helping Woodside to block Timor But Sharon doesn’t give up easily. understanding of the person wanting his
L’este’s plans to process its oil and gas She adapts and fights again and since the help. He admits to feeling ashamed now.
in their country a short 40 kilometers conference she’s had the win that poten- It was a tick-the-box exercise at the
away. Woodside is pushing the tially puts her in the winner’s corner. On direction of his superiors but not, as it
Timorese to continue using the Darwin 25 November Sharon won with costs in turned out, his betters.
LNG plant more than 400 kilometers the court of appeal. Her application will When he decided to lodge a civil case
away. They are considering other inves- return to the industrial commission to under the federal Public Interest Disclo-
tors, like China. Bernard believes our determine her right to appeal her dismis- sures Act, he no doubt thought he was in
The Whistle, #113, January 2023 3
with a chance. But when the Common- him. They like him even less since PID investigation unit still wasn’t the
wealth Director of Public Prosecutions NSW’s Crime Commission backed him answer? Mind it would have to be
(CDPP) filed an application last October in on his claim last October, essentially legally independent of the agency in all
to stop him using his expert evidence — labelling them your friendly neighbour- the decisions it made and independently
ostensibly in the national interest — he hood money-laundering service, thanks funded. With the unit and the whistle-
thought long and hard before deciding to to 86,640 pokies. Then, after five days blowers entitled to refer to a PID openly,
pull the rug out from under them. He under cross-examination in early De- like you do a filing in a court, with any
withdrew his case, saving us from cember, the federal A-G’s office subsequent interaction between the unit
having to listen to the interminable weighed in, contacting the parties with and whistleblower seen to be whistle-
hogwash about their national security its concern that ClubsNSW might be blowing. Both could then operate out in
concerns. He says after all, he is content abusing parliamentary privilege. At the the open, free of the coercion enabled by
to ask his peers in a jury trial whether time his would-be tormentor was trying the misconceived privacy and confiden-
he’s done anything that would warrant to negate any privilege he might have tiality settings that serve only to ring-
gaol time. had in contacting independent MP fence the whistleblower.
David mused out about what that day Andrew Wilkie.
might bring, wryly suggesting he might Troy is terminally ill with cancer. He
have to get some fashion advice from says it has liberated him as he really has
Sharon. He has the gift of the gab as they nothing left to lose. Some might say he’s
say, and it works very well for him. He crazy brave and in a funny sort of way,
managed to get his message across and they’d be right. I think he’s already won,
us all laughing at them, which is not a and they know it.
bad thing when so much of what the
Commonwealth has done is laughable,
even though it’s a major threat to all of
us.
Paul Miller, NSW Ombudsman
I think David wants the current
government to be held responsible for
Jeff Morris confirmed my worst fears
refusing to exercise its own judgment in
when he volunteered that he’d attended
our national interest. David is betting the
the same presentation at another venue.
Albanese government will try to pin any
Mind I don’t envy the Ombudsman: his
guilty verdict on the former govern-
is an impossible task.
ment, which means David is now the
sacrificial lamb on two fronts. I ask you,
Cynthia Kardell is president of Whistle-
when have things ever been different? blowers Australia.
Troy Stolz used a list of media reports
laid out in chronological order to run a
counter-narrative against the claims Financial costs associated
being made by ClubsNSW. Even as I Troy Stolz with whistleblowing
think of him scrolling down from the Jane Anderson
earliest times, I am smiling. Troy has a Postscript
droll sense of the absurd and his ridicul- I also invited the NSW Ombudsman WHEN ORGANISATIONS engage in fraud
ing ways work really well as a story- Paul Miller and his assistant Louise and cause hazards, the costs to society
telling device. ClubsNSW has done Lazzarino along to talk about the new can be huge. Exposing these problems
some remarkably silly things and Troy Public Interest Disclosures Act 2022. It sooner rather than later is beneficial to
has a mind to lay it all out using truth, won’t take effect until October next year society and often to the organisation.
liberally laced with laughter and because his Office has been tasked with Then along comes a whistleblower to
derision. In history it’s always been a introducing it to the public service. I expose the problems, and all too often
potent mix for the good. wanted to know what the Government the whistleblower is subject to reprisals.
thought the problem was with the This imposes large costs on the whistle-
current act and how the new act would blower and on the organisation. My aim
fix it. is to illustrate the magnitude of these
The vexed question of whether a PID costs.
is a PID remains. The solution appears The All Party Parliamentary Group
to be to allow PIDs to be made almost at Whistleblowing, UK, issued a report in
the drop of a hat to anyone and every- July 2019 titled Whistleblowing The
Troy claims that billions of dollars in one. I wanted to know what to do under Personal Cost of Doing the Right Thing
proceeds of crime are being funnelled the new act if opinions differed. Paul and the Cost to Society of Ignoring it.
through your friendly club’s pokies, so said his office “could mediate.” I admit The report estimated the annual finan-
you can understand why they don’t like I lost interest after that. I was wonder- cial costs to organisations in whistle-
ing, 30 years on, why having an internal blowing cases to be in the millions of
4 The Whistle, #113, January 2023
pounds. Yet financial costs to the greatest complexity, which carry the ternal investigation by lawyers and
organisation often seem to become highest risks of whistleblower mistreat- legal fees estimated to cost $250,000
submerged beneath many other factors. ment and other conflicts and costs, are with staff time providing statements
My case study explores the financial those requiring the most considered costing an estimated $75,000.
costs associated with a whistleblower decisions. However, these complex In summary, my estimate of costs is:
disclosure incurred by a state govern- cases are so very often those more
ment institution. likely to be met with avoidance or Internal staff costs, $200,000
denial from management, further com- Staff turnover, $720,000
pounding resultant adverse events and Employee stress leave, $520,000
costs. Legal fees, $250,000
Staff investigation statements, $75,000
In a familiar story, the organisation Loss of production, ?
managed to turn a highly motivated, Reputational damage, ?
experienced and hardworking em- Total, $1,765,000+
ployee into one who became disen-
gaged, disillusioned and very cross. The UK Parliamentary Group, men-
Kate Kenny and Marianna Fotaki in tioned earlier, notes “The cost of
their article “The costs and labour of whistleblowing to society amounts to
whistleblowing” report that only 3% of more than the figure on the bottom of a
In this example, the whistleblower whistleblowers spend less than 100 balance sheet.” This would include the
reported corruption and wrongdoing hours on disclosure-related activities almost universal and more familiar
principally relating to recruitment, with 57% spending 100–1,000 hours, psychosocial and other costs to the
procurement and fraud internally to 36% spending 1,000–10,000 hours and whistleblower. They go on to acknowl-
management. The issues started with 3% spending over 10,000 hours. It is edge “the appalling and unlawful treat-
relatively low-level recruitment wrong- quite possible these hours would be ment of the whistleblowers who by just
doing and escalated to include corrup- more than matched by the organisation. doing the right thing risk everything to
tion and fraud — as well as reprisals. In my case study, team members, protect others. Despite acceptance that
Interestingly, the organisation has human resources specialists, IT special- whistleblowers are the single most cost
bucketloads of policies and procedures. ists, senior managers and corruption effective and important means of
Had they been properly adhered to, officers all spent time on the matters identifying and addressing wrongdoing,
there would have been no wrongdoing, raised, at a total cost I estimate at they become the target of retaliation by
and none of the costs discussed here $200,000. A pattern of inappropriate organisations determined to protect
would have been incurred. recruitment decisions poisoned the their reputation.” Further, “The vast
Public interest disclosures were entire team leading to a highly toxic, majority of experiences are described as
made to senior management in 2019 dysfunctional and unproductive work- negative and characterised by a hostile
about recruitment irregularities and place with high levels of stress leave culture of fear and blame leading to
corruption, in 2020 about recruitment and high staff turnover. isolation and to various forms of repris-
irregularities and corruption and in als and victimisation, such as counter
2021 about recruitment irregularities, allegations or disciplinary action.”
corruption, IT fraud and procurement However, to take a different approach,
corruption. Aiyesha Dey and colleagues in a 2021
Right from the start, the organisation article found that US whistleblowers
failed to respond appropriately. Had it were paid on average US$140,000
acted in a timely and effective way, under the False Claims Act cash-for-
many of the subsequent behaviours and information program which aims to
costly repercussions would not have Using the Business Victoria cost-of-
expose corporate fraud. In November
happened. These included corruption, staff-turnover calculator gave me a
2022, the US Securities and Exchange
wrongdoing, bullying, reprisals, failure figure close to $720,000 for my case
Commission announced an award of
to follow policy, negligence, fraud, study. Workhuman, a global human
US$20 million to a whistleblower, the
malpractice and unethical behaviour. resources company, in The Ridiculously
rationale being that the whistleblower’s
The perpetrators appeared to become High Cost of Employee Turnover gives
disclosure resulted in considerable
increasingly emboldened as time went the hypothetical example of a company
savings to the government.
on, with no apparent consequences for with 10,000 employees and turnover of
their bad behaviour. Research by AJ 11% costing US$41.3 million. They go
Brown and colleagues confirms that on to relate that high turnover lowers
failure on the part of an organisation to staff morale, damages an organisation’s
properly recognise a disclosure and reputation and decreases productivity,
address the entire range of issues raised all of which have additional associated
is often the first step towards adverse costs. For the purposes of my case
outcomes for whistleblowers with re- study, I estimated that lengthy periods
sultant costs and damage to the organi- of employee stress leave cost $520,000.
sation. It also tells us that cases with The organisation commissioned an ex-
The Whistle, #113, January 2023 5
Since its inception, the SEC program also has (or had) large swathes of native courts in Queensland. The then Mayor,
as of 2022 has paid whistleblowers over forest that provided important habitats Timothy (Luke) Smith, is to stand trial
US$1 billion while recouping some for native flora and fauna. The Pacific in 2023.
US$6 billion, giving it a high rate of Highway edges its way near the city’s
return. easterly border and through part of the
The organisation in my case study more established areas of the city. But
cannot claim to have been unaware of the bulk of the city’s geographic land
the matters. Recruitment wrongdoings lies out to the west, reaching the base of
had been reported by several members the Tambourine Mountains. This is the
of the team. In addition, the last three part where urban sprawl meets hinter-
years of staff satisfaction surveys land. You get the picture.
returned an extremely low score for
staff confidence in recruitment. High
staff turnover also raised a red flag. An
estimated $1,765,000 has been diverted
from being spent as it should have been
on services. It could even be suggested Only months after making my initial
that the organisation has behaved in a PID my employment was terminated by
corrupt manner because it deliberately a vote of the Council. Mayor Smith did
ignored the warning signs and not take part in the vote. He was
“involves a breach of public trust that restrained from participating by a court
can lead to inequity, wasted resources So, what matters? order pursuant to the first decision
or public money and reputational Before I took up the role as its CEO, I made by the Industrial Commission.
damage,” to quote the NSW Independ- had been an Executive Director at the However, on 7 February 2018 the vote
ent Commission Against Corruption. It Victoria Independent Anti-Corruption was held with the remaining 12 council-
should be noted that had proper Commission (IBAC). I came to IBAC lors. It was a 7:5 vote. And there it was,
processes been followed, none of the with a history of leading various portfo- my employment was terminated.
resultant corruption and wrongdoing lios in local government ranging from Now, some five years on, and nine
would have happened and had prompt planning and development, through to Industrial Commission, five Industrial
action been taken to act initially then corporate, legal and business services. Court and two Court of Appeal judg-
costs would not have been as high. As an admitted Barrister and Solicitor, ments later, I am still seeking justice. I
If organisations counted the dollar I also clocked up some time at a private have just received the latest in a long
costs, they might be willing to take law firm and worked as an in-house line of judicial judgments relative to my
whistleblower accounts more seriously. counsel. But often the part of my career claims about why my employment was
Might they also respond appropriately that fascinates people the most is that terminated. This latest decision was
to such reports? The monetary costs to fresh from school I entered the police made by three justices in the Court of
organisations are rarely counted and academy as a cadet. Each of these jobs Appeal and importantly, overturns a
rarely discussed. Perhaps organisations shares a common thread. The values of decision of the President of the Indus-
should be obliged to keep records of the integrity and human rights have woven trial Court. That earlier decision disal-
costs and publish them in annual their way throughout my career. These lowed my appeal application and made
general reports. It is time this hidden tenets along with the value of my family an adverse costs order against me. I
element of whistleblowing became are the things that matter for me. think this latest decision by the Court of
public. Appeal will mark the critical turning
What happened at Logan? point in my case. It allows me to make
After starting at Logan as the CEO it an application to the Industrial Com-
didn’t take long before people started to mission to seek to appeal its earlier
Advocate for share their significant concerns about decision that dismissed my claim that
things that matter the council. I told them integrity mat- my employment had been illegally
Sharon Kelsey tered. With my career history, it was terminated.
clear that people had high hopes that The substantive decision that I am
LIKE many whistleblowers, my journey things would change under my ultimately seeking to overturn can be
has been long and laboured. It started in leadership. found at Kelsey v Logan City Council
mid-2017 when I took up the role of In mid-October 2017, I walked my & Ors (No.8) [2021] QIRC 114
CEO for the Logan City Council. Logan talk and made a public interest disclo- (PID/2017/3) O’Connor VP. If you are
is a large local government area in sure (PID) to the Council and to the interested in the full carriage of the
Queensland, situated between the City Queensland Crime and Corruption matter, then all 16 decisions can be
of Brisbane and the Gold Coast. While Commission (CCC). The nature of the found at www.sclqld.org.au. You will
the council area doesn’t have direct PID and my subsequent disclosures to need to search through the Industrial
coastline, it hosts some of the precious the CCC are still the subject of court Commission, the Industrial Court and
creeks, waterways and wetlands that suppression orders. They involve the Court of Appeal to see all of the
make that part of the world unique. It matters that are before the criminal
6 The Whistle, #113, January 2023
judgements. They start on 1 February Commission Bill (Cth) 2022 (the Bill). is clear that no-one owes the whistle-
2018 just before my termination. My submission is public and available blower a duty of care. I argued that the
on the parliamentary website. I fo- NACC should owe the whistleblower a
cussed on two aspects, Public Hearings positive duty of care to protect them.
and Whistleblower Protection.
I contended that public hearings Whistleblowing protection regime
should be held at the discretion of the Drawing further on my own experience
NACC Commissioner. I consider pub- and the subsequent events that impacted
lic hearings to have an important role as my career and life more generally, I
an investigatory tool and to be crucial to proposed that a whistleblower protec-
maintain transparency and openness in tion regime should include:
Sharon’s executive team with the integrity matters. You are probably
former mayor, in the council chambers
aware that instead of the Commissioner • establishing a dedicated Whistle-
being able to exercise discretion, an blower Protection Authority
Being an Advocate for things that
“exceptional circumstances” and “pub- • effective “shield” laws to protect
matter
lic interest” test must first be satisfied. public interest journalism and
I have found that many people have
I also argued for immediate strength- third-party disclosures
advice for whistleblowers. Most of it
ening of whistleblower protection. The • recognition of whistleblower
well-intentioned. In my experience, the
role of the whistleblower drives the rights as fundamental human
best early advice came from a small
workings of any integrity system. The rights
handful of trusted professionals, mainly
Bill included only a basic anti-reprisal • provision of legal support to
lawyers (there, I said it). Note, I also
provision. As a stand-alone provision it pursue rights
said it was only a small handful of
is inadequate. Its focus is too narrow • reciprocal recognition of rights at
lawyers — I think that qualifies it suffi-
and it lacks sufficient capacity to cover an international level, e.g. seek-
ciently. I have also relied heavily on a
all aspects of how disclosures occur. ing asylum
small support network. These are
Without a comprehensive whistle- • simplification and ease of access
mainly family and communities of
blower protection regime, a weak to legal remedies
people that share my outrage. I have
stand-alone provision potentially sug- • whistleblower care and welfare
been late to rely on the strength and
gests protection when in practice, little
tenacity of other whistleblowers. This • consideration of a reward
protection exists. My real concern is
was, I now know, to my detriment. In scheme.
that a narrow, limited reprisal provision
the few short months since I have
may pose a greater risk than the ill it
connected with many of you, I have felt This list was never intended to be
seeks to address.
mentally and physically stronger. There exhaustive but to prompt the level of the
I also questioned the reliance of the
is strength in our common ground and discussion beyond a focus on the deter-
integrity system on potential prosecu-
in numbers. I value deeply the powerful rent of criminal prosecutions. Frankly,
tion as the primary deterrent. The expe-
conversations I have been able to share criminal consequences are no deterrent
rience of state anti-corruption agencies
with many of you. Despite our different when it matters. Let’s not pretend they
shows the bar to successful prosecution
routes, it’s clear our journeys have been are. Instead, the focus of reform should
is incredible high, arguably even insur-
remarkably similar. Your advice is be on the real experience of whistle-
mountable. Yet by sheer number, the
personal, real and sometimes raw but blowers, for it is these stalwarts who
overwhelming claims by whistleblow-
always helpful. continue to pay a high personal cost
ers of alleged reprisal action taken
While people don’t always have to when the interest they serve is a critical
against them suggests they can’t all be
have a lived experience to provide public one.
false.
useful advice, in my experience it helps.
Otherwise, people tend to rely on their
Broad positive duty on NACC to
theoretical understanding of how things
protect whistleblowers
should work. Of course, in practice it
Drawing on my own experience in
lacks the real-life ins and outs, ups and
Queensland where the CCC was pursu-
downs, and curly corners. It is almost
ing parallel criminal proceedings, I
always linear; assumes you start at one
argued that whistleblowers should not
point and after various steps, end at
be exposed to further harm by the act of
another. Such advice replicates an
assisting investigations. They should be
expectation that life itself operates in a
owed a duty of care by the reporting/
similar linear fashion. It never does. Former mayor Timothy (Luke) Smith
investigatory agencies. I became aware
That is why when I have an oppor- is on the right. Sharon is not
that some anti-corruption agencies have the one in the centre.
tunity to contribute to discussion about
historically acted under a misconcep-
things that matter, I jump at the chance.
tion that such a duty of care existed,
The latest chance was my submission to
only later to find that they owed no such
the parliamentary committee set up to
duty to whistleblowers. With this genie
consider the National Anti-Corruption
now well and truly out of the bottle, it
The Whistle, #113, January 2023 7
Media watch
Hard to deal with massive leaked in the public domain presumably corruption as part of which the Munici-
by those who benefitted from the pality gave land and buildings to
corruption in Iran, revelations. influential individuals to garner their
says whistleblower As a whistleblower who has been support,” Soltani recalled. He added
Iran International Newsroom exposing financial corruption in Iran that regardless of his help, the Iranian
31 October 2022 since the 1990s, Soltani says that judiciary has been summoning him
corrupt individuals have never left the during the past 11 years to subtly warn
A WELL-KNOWN WHISTLEBLOWER and system even after their performance him about his whistleblowing activity.
investigative journalist in Iran says was exposed, and corruption is con- “They ask why me and not the intel-
people in the Islamic Republic political stantly on the rise. He added that the ligence agencies investigate a case.
system are not accountable for their Iranian justice system discriminates in Well, the intelligence agencies did their
performance. favor of corrupt individuals when they own research but they got nowhere
are close to the core of the regime, because there are flaws in the structure
namely Khamenei’s household. of the government,” he said, adding
that, “There are only four or five people
who continue as whistleblowers, and all
of them like me work single-handedly
without any support from anyone in the
system.”
Referring to the problems in the
system, he said the corruption case at
the Petrochemical Complex (PCC) was
a major case. But there were a few
stage-managed court sessions and noth-
Former mayor and current ing more happened.
parliament speaker Ghalibaf (R) He was referring to a case of hun-
with Qasem Soleimani dreds of millions of dollars embezzled
by officials who were tasked to sell
Yashar Soltani He said: “Fighting corruption is part Iran’s petrochemical products through
of the people’s demands as the magni- obscure channels and return the money
Yashar Soltani, who has spent some tude of government corruption is so to the treasury during international
time in jail in 2016 for disclosing finan- high that the regime has no way but to sanctions in 2010–2013.
cial corruption at Tehran Municipality try to control it through introducing Soltani concluded: “There are so
under current parliament speaker reforms in the system.” However, he many inconclusive cases about finan-
Mohammad Bagher Ghalibaf, added in acknowledged that most of the rhetoric cial corruption in Iran. In a corrupt
an interview with Etemad Online that about fighting government corruption is structure you cannot claim to be dealing
the way government treats financial just a show, often with the intention of with corruption.”
corruption is woefully disappointing. winning the people’s attention at elec-
The multi-billion-dollar case involv- tion times or to calm the situation when
ing the former mayor, a figure close to there are major protests.
Supreme Leader Ali Khamenei, ended Soltani pointed out that while cor-
Disillusioned, jaded and
in the arrest of Isa Sharifi, one of ruption trials were held openly and the cynical, says report
Ghalibaf’s deputies and was finally people could watch hearings on live TV Marie-Danielle Smith
pushed under the carpet although in the 1990s, corruption cases are now Canadian Press, 1 October 2022
Khamenei in 2018 called for investiga- shrouded in an aura of secrecy. Soltani
tion into the case. Sharifi’s name came reiterated that as long as talk about FEDERAL WORKERS in Canada are
up once again in February 2022 along corruption is aimed at beatifying the increasingly cynical, skeptical and
with Ghalibaf’s in a major corruption political system or garnering support disillusioned about the idea of reporting
case at the IRGC, which also remained for a group of candidates, there will be wrongdoing in the public service, says
inconclusive after a few weeks of no hope in controlling it. a recent survey.
controversy stirred by rival political Nonetheless, there seems to be some That pessimism is more “palpable
factions in Iran. progress in the process. “When I dis- and widespread” now than it was before
The controversy about the IRGC closed the astronomical real estate case the pandemic, and bureaucrats have
corruption case was soon silenced [in Tehran municipality] in 2016, I was become more likely to fear reprisals for
possibly because even former IRGC jailed immediately, but five years later whistleblowing.
Qods Force Commander Qasem I was called for consultation for writing Research firm Phoenix Strategic
Soleimani was also involved, as a new law to prevent that kind of Perspectives Inc. delivered the report in
revealed in an audio tape that was March to the Office of the Public Sector
8 The Whistle, #113, January 2023
Integrity Commissioner, which investi- given poor evaluations, be taken off commissioner and legal counsel before
gates serious abuses within the federal projects, be assigned less challenging that — Friday says he’s never given a
government. work or have their workloads increased. presentation that didn’t result in a
Commissioner Joe Friday says there Compared to a similar report under- followup with someone in the audience
is a maze of oversight mechanisms taken in 2015, public servants were who was considering reporting wrong-
available to public servants and it can more likely to say that their attitudes doing.
be discouraging or exhausting to figure toward whistleblowing had changed “We’re talking about something very
out where to lodge a complaint. over time. This time around, they personal, very often something that
He says he thinks public servants are described themselves as having become someone has not yet spoken to anybody
feeling more isolated and disconnected “less naive,” “more pessimistic,” “more about,” he says, lamenting that the
during the pandemic, making it more cynical,” “more jaded,” “less bright- pandemic has resulted in fewer oppor-
difficult to feel confident in coming eyed” and “more disillusioned.” tunities to have face-to-face conver-
forward — let alone to gather the sort of Workers tended to see whistleblow- sations.
documentation that whistleblowers ing as a good thing and described “We’re trying our damnedest to
require. whistleblowers as brave people who continue with our outreach efforts.”
Chris Aylward, the president of the should be encouraged and supported.
Public Service Alliance of Canada, says But they emphasized that prospective
the protections in place for whistle- whistleblowers “need to understand
blowers are inadequate and the regime what they are facing”: a process that is Theo Nyreröd —
must be strengthened. “long, arduous, stressful and uncertain busting the myths of
as to the outcome.”
And while participants reported an
whistleblower rewards
Mark Worth
increase in awareness and education
Whistleblower Network News
about the process of reporting wrongdo-
8 November 2022
ing, they didn’t trust it.
“Many held the view that such
THEO NYRERÖD doesn’t buy into the
changes amount to ‘virtue signalling’ or
stereotype that the only good whistle-
‘window dressing’ as opposed to
blower is a martyred whistleblower.
constituting real cultural change,” the
Chris Aylward The time has come, he says, to
report says.
dispense with the age-old notion of a
A little over half of the focus group
“It’s discouraging to see that federal morally perfect person who is willing to
attendees were unaware of the existence
workers have grown more cynical about sacrifice everything — their job, their
of the office that commissioned the
whistleblowing and reporting wrong- financial future and their family’s well-
research in the first place.
doing in the public service, but it is not being — in order to expose a hidden
That’s not necessarily such a bad
surprising,” Aylward said in a state- crime. A penniless whistleblower is not
thing, Friday says.
ment. a success story.
“I think if every public servant woke
“It can be intimidating to come for- “There is a perception that people
up every morning and first thing on
ward as a whistleblower, and our should have to suffer in order to be a
their mind was, ‘How do I bring wrong-
members are right to fear retaliation. whistleblower,” says Nyreröd, a doc-
doing to light,’ that might suggest that
Strong measures are needed to protect toral researcher in law at Brunel Uni-
there’s more wrongdoing than anybody
workers that speak out. Instead, there versity in London. “The truth is that
thinks there is,” he says.
are too many conditions on whistle- most people wouldn’t risk their well-
Still, it’s apparent that many don’t
blowers that unnecessarily restrict paying job at the bank or at the
know how the whistleblowing process
disclosure.” company where they work. They don’t
works, or don’t have trust in it if they
The report, based on nine focus want to throw their career away.”
do. “Clearly, there’s more to do,” he
group sessions held in March, found Acting selflessly for the benefit of
says.
that workers feared a wide variety of society is among the most admirable
It can be frustrating to push for
hypothetical repercussions, many of things a person can do. But if we expect
cultural change on the margins of a
which are premised on the fear that a person to lose everything in the
300,000-person organization, Friday
confidentiality could be compromised. process, says Nyreröd, this is a price
says — and with no influence or author-
These included a negative impact on that is too high for almost anyone to
ity over the internal, department-
the physical or psychological well- pay.
specific procedures that govern most of
being of the whistleblower, a lack of Nyreröd’s solution? He is one of the
the whistleblowing system.
support, the idea that they would growing number of researchers study-
Still, his office of 35 people has
acquire a reputation as a troublemaker, ing how monetary rewards can incen-
reached thousands of public servants
diminished trust and division among tive vulnerable witnesses to come
with events and presentations over the
co-workers and “damage to the image forward, and compensate them for
course of the pandemic, he says, in an
or reputation of the public service.” career damage that in many industries is
attempt to demystify the process.
Some said they feared their careers virtually automatic.
In the seven years he’s been commis-
would be derailed — that they’d be “Paying people for information is a
sioner — and during his time as deputy
no-brainer. Otherwise, witnesses who
The Whistle, #113, January 2023 9
are at risk of retaliation are forced to wards were used for many things in If a whistleblower has a financial
remain silent,” said Nyreröd, who has England. They applied to a broad swath motivation, this can represent a threat in
published many journal articles and of the population,” he said. the mind of the crook,” he said.
policy papers on whistleblower protec- Reporting all manner of crimes in This economic benefit, he said,
tion and reward programs. “Many England could fetch a reward, including should be based on the scale of the
people need something more than just customs violations, illegal alcohol sales crime itself. Typical whistleblower
the personal satisfaction of doing the and breaking such laws as the White protection laws treat everyone the
right thing. They need an incentive.” Herring Fisheries Act of 1771. same: a person doesn’t get “more”
“Citizens were the eyes and ears,” said protection if he or she reveals a huge
Nyreröd. “It was almost like a profes- corruption case. Rewards can add
sion, especially in communities that proportionality: the larger the fines that
didn’t have a police department.” violators have to pay, the larger the
The system was abolished in 1951 by reward the whistleblower receives. “In-
the so-called Common Informers Act. formation has an economic value,” says
But the UK has since brought back Nyreröd. “The reward should be based
whistleblower rewards. The Revenue on the seriousness of the crime.”
and Customs agency pays people based Nyreröd points out a key discrep-
on the value of the evidence they ancy between white-collar corruption,
provide: the amount of taxes recovered, which often gets little attention, and
the value of loss prevented, and time violent crime, which is high-profile and
saved to investigate cases. shocking. For centuries, police have
Today, at least 16 countries in dangled rewards as an incentive for
Theo Nyreröd
Europe, the Americas, Africa and Asia citizens to turn in murderers, robbers
have some sort of reward program in and drug dealers. There is no contro-
Regulators and law enforcement also
place. The US has by far the most versy here. “The damage is obvious.
need all the help they can get, Nyreröd
reward laws and programs, including We can see it,” he says.
says, particularly when it comes to
the Foreign Corrupt Practice Act, False On the other hand, because financial
detecting and prosecuting white-collar
Claims Act, Dodd-Frank Act, and the crimes are more subtle, the public
crime. Any reasonable tool to fight
Commodity Exchange Act. typically doesn’t respond as viscerally.
corruption should be considered. “We
“These are ‘boring’ crimes that we
have to shake things up,” he said.
don’t really get engaged with. The
Overcoming societal opposition to
consequences are not as obvious.”
paying whistleblowers — “We don’t
Therefore, Nyreröd said, the idea of
pay snitches” — is difficult. In a paper
paying rewards is less convincing. “The
he co-authored, Nyreröd explains that
reality is that the damage caused by
Europe’s opposition to rewards is
white-collar crimes can be much more
linked to “path dependence” — what he
serious than we think.” Paying rewards
calls “the persistent effects of its history
to corruption whistleblowers, he said,
on legal and social culture and tradi-
can help expose the real harm caused by
tions.” He cites Nazi Germany and
white-collar criminals.
Soviet Russia dictatorships that “relied
heavily on citizens reporting on one
another.” This may explain why most The economic value of information
Europeans “view mechanisms that In researching his Ph.D. thesis on the Organizational dynamics
incentivize reporting with suspicion.” design and performance of whistle-
blower laws, Nyreröd has explored influence whether workers
“Eyes and ears” many arguments in favor of rewards. blow the whistle
The idea of whistleblower rewards is as On top of the obvious benefit of Carnegie Mellon University
old as democracy itself. The concept compensating people who are punished News release, 3 November 2022
goes back at least to ancient Rome, for no fault of their own, rewards have
which had a type of “private law a strong symbolic value. Nyreröd WRONGDOING is endemic to organiza-
enforcement” that paid witnesses a makes the philosophical point that tions, costing U.S. firms billions of
percentage of recovered funds. “This rewards “can turn capitalism on its dollars in fraud. The primary way
system is very old,” Nyreröd said. head, by turning the toxic part of wrongdoing is caught is through whis-
It’s also been dated to 7th century capitalism against itself.” tleblowers, who have long been thought
England. Later, following The Plague Related to this, Nyreröd said crooked to act out of a desire to help or improve
in the 14th century, British citizens politicians and company executives their organization.
were rewarded for reporting violations tend to project their own financial A new study considered a different
of a regulation that banned people from motivations onto the people around angle, looking at individuals as
being paid more than what they earned them. Rewards thus can serve as a members of organizations as well as
before the outbreak. “Eventually re- deterrent. “They think a whistleblower members of social groups to understand
also might be after an economic benefit. how group affiliations affect the likeli-
10 The Whistle, #113, January 2023hood of whistleblowing. The study The study found that when a wrong- Management at the Paul Merage School
found that group cohesion reduced indi- doer was affiliated with a potential of Business at UCI, who led the study.
viduals’ tendencies to blow the whistle whistleblower’s group, higher group “As such, we encourage organizations
on wrongdoers inside their group but cohesion decreased the likelihood of to look at more than organizational-
increased their tendency to do the same blowing the whistle, due to the potential level factors and consider a new focus
on wrongdoers outside of their group. whistleblower’s greater loyalties to on relational dynamics.”
group members and a desire to protect
the reputation of the group. When a
wrongdoer was not affiliated with a
potential whistleblower’s group, higher
Government credibility
group cohesion increased the likelihood on the line amid Boyle
of blowing the whistle because poten- and McBride trials
tial whistleblowers felt they had the Rex Patrick
support of fellow group members, Michael West Media
lessening fears of retaliation. 22 November 2022
The authors note that their study
The study, by researchers at Carne- features several limitations. While RELENTLESS PROSECUTION of whistle-
gie Mellon University (CMU) and the research has shown that individuals’ blowers David McBride and Richard
University of California, Irvine (UCI), morality and perceptions of wrongdo- Boyle may damage the credibility of
is titled “Whistleblowing and group ing can be influenced by social dynam- Australia’s government on the world
affiliation: the role of group cohesion ics and group membership, this study stage. Whistleblower protection laws
and the locus of the wrongdoer in did not assess whether individuals need urgent reform.
reporting decisions” and published in interpret differently what behaviors “We are committed to ensuring that
the journal Organization Science. constitute wrongdoing. The study also Australia has effective protections for
“Understanding the effects of group did not address issues related to whistleblowers”, the Attorney-General
dynamics on whistleblowing can in- overlapping group memberships and to Mark Dreyfus KC proclaimed at an
form organizational interventions to de- differences in voluntary versus manda- Australian Public Sector Anti-Corrup-
tect and prevent wrongdoing,” explains tory groups. Finally, the study did not tion Conference in Sydney a week ago.
Brandy Aven, Associate Professor of distinguish which acts of wrongdoing With the skill of a seasoned politician,
Organizational Theory, Strategy, and harmed victims (e.g., harassment, dis- he did so with a straight face.
Entrepreneurship at CMU’s Tepper crimination) and which harmed just the Dreyfus pledged his support for the
School of Business, who co-authored organization. protections knowing full well that the
the study. “By understanding how indi- prosecutions of whistleblowers Richard
viduals identify and associate with each Boyle and David McBride, by the
other, we can determine the impact of organisations they blew the whistle on,
social structure on responses to continue relentlessly.
wrongdoing.” Boyle is in the courts facing criminal
Seeing whistleblowers as individuals charges related to his disclosure of Tax
who act for the organization’s benefit Office abuse of garnishee powers.
neglects the fact that these individuals Enduring garnishee notices issued by
are not only members of the organiza- ATO allow the Tax Commissioner to
tion but also members of internal social unilaterally and completely strip the
groups that may form along various bank accounts of businesses, leaving
dimensions (e.g., work groups, de- Contrary to prevailing views of them unable to pay employee wages,
mographics, rank, geography, hobbies). whistleblowing, the study’s findings superannuation, or supplier. It’s a death
These social groups affect individuals’ suggest that individuals are strongly warrant.
behavior and decision-making. influenced by group dynamics within After Boyle blew the whistle through
In this study, researchers used data the organization, perhaps more so than the ABC’s 4 Corners, the Inspector-
from the 2010 Merit Principles Survey, by concerns about the organization General of Taxation (IGT) conducted a
which asked federal employees in two itself. Thus, while group cohesion may review into the ATO’s use of garnishee
dozen U.S. departments and agencies lead to whistleblowing in one part of the notices and found anomalies in the
about observed and hypothetical organization (i.e., outside the group), it ATO’s Adelaide office, where Boyle
wrongdoing; the study’s sample in- can lead employees to shield wrongdo- had worked. The irony in the review is,
cluded nearly 3,000 federal employees ers in another part of the organization after a botched investigation by the
with knowledge of wrongdoing by (i.e., inside of the group). ATO into his initial public interest
another government employee who “By showing how group affiliations disclosure, Boyle went to the IGT —
either blew the whistle or did not report inform whistleblowing decisions, we who did nothing.
the wrongdoing. The researchers also reveal how variation in social structure McBride is also in the courts facing
conducted a vignette experiment using leads to heterogeneity in responses to criminal charges for blowing the
a separate sample of nearly 300 online wrongdoing,” says Patrick Bergemann, whistle on war crimes committed by a
respondents in the United States. Assistant Professor of Organization and small group of Australian troops in
The Whistle, #113, January 2023 11Afghanistan. Although what he alleged ultimate responsibility to Parliament ceeds to prosecute and imprison
was occurring would be embarrassing and to the people for the conduct of the public officials who speak up about
to the Army’s higher command, it’s not prosecution process. government wrongdoing, it will lose
as though he was making things up. credibility on the world stage when it
Since he blew the whistle the Brereton comes to transparency and account-
Review found of operations in Af- ability.
ghanistan:
Reform is essential.
There is credible information of 23 Mr Dreyfus has foreshadowed the
incidents in which one or more non- introduction of a new Bill to offer
combatants or persons hors-de- greater protection to whistleblowers.
combat were unlawfully killed by or But will those protections be enough?
at the direction of members of the In what can only be described as a
Special Operations Task Group in well-timed release, the Centre for
circumstances which, if accepted by Governance and Public Policy at
a jury, would be the war crime of Griffith University, the Human Rights
murder, and a further two incidents Law Centre and Transparency Interna-
in which a non-combatant or person tional Australia have unveiled a Federal
hors-de-combat was mistreated in Roadmap for Protecting Australia’s
circumstances which, if so accepted, Richard Boyle Whistleblowers.
would be the war crime of cruel The report is short, but informative
treatment. Dreyfus used this power in relation and punchy. It will serve as a baseline
to whistleblower Bernard Collaery, against which politicians, the media and
who blew the whistle on the Howard the public can judge the legislation that
Government’s defrauding of Timor- Dreyfus is about to table. Key recom-
Leste of its oil and gas resources — mendations include:
through spying on Timor’s sea bound- • the establishment of a Whistle-
ary negotiating team in 2004. No-one blower Protection Authority to guide
should mistake the use of his powers to and support people through the
stop Collaery’s prosecution as an act to whistleblowing process,
protect a whistleblower, rather it was • better training for government
used because a failure to do so would officials,
David McBride have significantly complicated Aus- • consistency for all whistleblowers,
tralia’s ongoing relationship with whether they work in the private or
Last month, at the start of what was
Timor-Leste. public sector,
to be a four-day hearing of McBride’s
Earlier this month the International • ensuring whistleblower protection
whistleblowing defence, the govern-
Whistleblower Network, a coalition of exists against all but ‘self-standing’,
ment sprung a public interest immunity
national and international whistle- entirely unrelated offences,
(PII) claim over parts of McBride’s
blower protection experts, wrote to Mr • enforcing a positive duty to protect
evidence. The PII claim was made on
Dreyfus. In comparing Boyle and whistleblowers,
national security grounds and has made
McBride to Collaery’s case, they stated: • simplifying and upgrading proof
it impossible for McBride to effectively
argue his whistleblowing defence. The cases of whistleblowers Mr requirements of remedies to detri-
That’s right, the same government Boyle and Mr McBride are equally ment.
that expects us to believe the Govern- exceptional and important. … De- Let’s just hope Dreyfus reads the
ment is committed to ensuring that spite raising matters of serious pub- report and takes heed of its recommen-
Australia has effective protections for lic concern — since vindicated by dations.
whistleblowers has emplaced an impen- independent investigations — these As he rises to the table of the House
etrable barrier in the way of McBride’s prosecutions have continued. Urgent of Representative to introduce new
whistleblower defence. intervention is needed to address the legislation and describe the road
Meanwhile, no Australian soldier injustice caused by these criminal looking forward, the Attorney-General
has yet been prosecuted for war crimes prosecutions, to minimise the might want to stop the bus and deal with
in Afghanistan. Only the whistleblower chilling effect of these cases and to the carnage in the rear-view mirror
has been targeted. fix Australia’s whistleblowing law to caused by his own flawed 2013 Bill and
Attorney-General Mark Dreyfus ensure such cases can never happen a lack of attendance to grossly improper
could, at the stroke of a pen, end the again. prosecutions that are still happening.
persecution of Boyle and McBride. The Attorney-General’s credibility,
They went on to warn:
Section 71 of the Judiciary Act grants and that of the Government, is at stake
him a power to decline to proceed Around the world, we once looked to here.
further in indictable prosecutions. The Australia as a beacon in protecting
power is provided to ensure the and empowering public interest Rex Patrick is a former Senator for
Attorney-General can discharge his whistleblowers. If Australia pro- South Australia.
12 The Whistle, #113, January 2023You can also read
