The Whistle - Brian Martin...THE WHISTLE, #36, JANUARY 2004 PAGE 3 Articles and discussion Uni...

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

TheWhistle NO. 36, JANUARY 2004

Newsletter of Whistleblowers AustraliaPO Box U129, Wollongong NSW 2500

Debbie Locke with NSW Police Commissioner Ken Moroney after being presented with aspecial certificate of merit for outstanding integrity and ethics in blowing the whistle ongraft and victimisation in the police force, 18 December 2003. Picture: Derek Maitland

THE WHISTLE, #36, JANUARY 2004

Media watch

Those who blow thewhistle are unprotected

Kim SawyerAustralian Financial Review,

16 October 2003, p. 63

Phillip Bowman, the whistleblower onthe Coles Myer-Yannon transaction,recently observed that Australia’ssmall and tight-knit businesscommunity poses a particular govern-ance risk (AFR, June 7-9). Bowman’sobservation amplifies the risks of tightnetworks. While such networks reducetransactions costs, they usually reducetransparency as they cover up toprotect their weakest links. In theSenate Inquiry into Public InterestWhistleblowing in 1994, the mostcommon complaint of whistleblowerswas the lack of independence of thosewho heard whistleblowing allegations.Too often regulators protect poorlygoverned networks. The HIH RoyalCommission, for example, heardevidence that the Australian PrudentialRegulation Authority failed to act onclaims by a whistleblowing accountantwho reported to APRA on theaccounting practices of HIH. In such aworld, whistleblowers become inde-pendent regulators. But their messageis rarely heard until after a catastrophe.And they are rarely protected.

The proposed change to theCorporations Act under CLERP 9 isthe most recent addition to Australianwhistleblowing legislation. This wouldextend some shelter to whistleblowersin the private sector. It’s welcome butbarely goes far enough.

Australian whistleblowing actshave one common factor. There hasnot been a single prosecution for thevictimisation of a whistleblower underany Australian act. Indeed, those whoadminister the acts do not see it as theirresponsibility to protect the whistle-blower from victimisation.

Just as Australian laws fail toprotect whistleblowers, they fail tocollect and publish statistics onwhistleblowing. An importantrecommendation of the 1994 Senateinquiry was to establish a PublicInterest Disclosure Agency, whichwould arrange for the investigation of

whistleblower complaints, protectwhistleblowers, and publish statisticson these investigations. Such anagency has not been established andstatistics are not collected nationally.International surveys of fraud, such asby KPMG, consistently show thatwhistleblowers are pivotal in thedetection of fraud.

The most powerful act in theUnited States to protect whistleblowersis the False Claims Act, which wasenabled in the Civil War and amendedin 1986. Under the False Claims Act, awhistleblower can initiate a lawsuitagainst a fraudulent claimant on thegovernment. The penalties under theFalse Claims Act are severe. Animportant provision of the FalseClaims Act entitles the whistleblowerto share between 15 per cent and 30per cent of the funds recovered by thegovernment. The whistleblower is alsoentitled to protection from retaliation.The amendments of 1986 restored thenormal preponderance of the evidencestandard of proof, so that more onus isplaced on respondents.

The False Claims Act worksbecause it is credible and it detersfraudulent claimants. Existing whistle-blowing legislation in Australia is notcredible. The only people it deters arethe whistleblowers.

Hospital deaths: too manycover-ups

Editorial, Sydney Morning Herald,12 December 2003, p. 12

It started with the courage and persis-tence of seven nurses working atCamden and Campbelltown hospitalswho complained to management aboutshoddy care there. Managementfobbed them off. Last November fourwent to then health minister CraigKnowles who, they say, threatened oneof the women, saying she could loseher home and career over her “slander-ous allegations”. The Health CareComplaints Commission investigated,but by February it proclaimed all waswell. The nurses continued to complain

and the commission reopened itsinvestigation.

What it revealed in the MacarthurHealth Service is shocking. Seriousillnesses were missed and wrongoperations performed. Nineteen deathshave been referred to the Coroner.Hospitals are dangerous places, full ofailing people and high-risk procedures.But the commission’s report showsCamden Hospital as more dangerousthan most. It had too few doctors andnurses, not enough specialists, and notenough skilled in emergency work andintensive care. It had poor protocolsand procedures to prevent mistakes.And it had a culture in which thenurses who complained of poor carewere investigated, bullied and, in somecases, sacked. The management of thehospital and its oversight by the StateGovernment were appalling. […]

The State Government has called aspecial commission of inquiry. Itsterms of reference appear to be limitedto the allegations made by the nurses,but it is likely to encompass questionsabout the Government’s managementof those allegations.

There are questions which may notbe covered by the inquiry, but arisejust as clearly. How will these revela-tions of poor care and mismanagementaffect those treated at Camden Hospi-tal over the past decade? How will theGovernment compensate those whosuffered at Camden? What will theGovernment do to restore the careersand reputations of the whistleblowers?What will it do to thank them for theirbravery in coming forward, which willsurely lead to better care for futurepatients of the region? And what ofCraig Knowles, often touted as premiermaterial? What was his role in thisdisaster? The guillotine has been busy,but there are still heads to roll.

Due to the many articles received, anumber of media items have been heldover for the next issue — editor.

THE WHISTLE, #36, JANUARY 2004 PAGE 3

Articles and discussion

Uni bullying, cronyism,malpractice, etc.

Derek Maitland

During the years 1999 to 2001, therewere many times when Margaret Love,a Glasgow-born educationist workingat the University of New South Wales,could have been forgiven for thinkingshe’d slipped somehow into acompletely different reality.

In fact, if you look back at herharrowing experience now, it’s almostas if she’d been transported on to theset of the top-rating US televisionseries The Sopranos.

With an MBA to her credit and atotal 12 years at UNSW, nine of themas head of the Department of Englishas a Second Language, Margaret wasan accomplished, highly-trained, level-headed woman. Yet as she lookedaround her in her job as commercialprojects manager in the burgeoningEducational Testing Centre (ETC), adepartment spearheading the univer-sity’s move to commercialise itsactivities, she could see she was in themiddle of a lot of things that wereterribly, almost surrealistically, wrong.

First, for a centre employing 60full-time and over 1,000 part-timestaff, with contracts for primary andsecondary school exams and assess-ments in 27 countries, with a $13million dollar annual turnover and withheavyweight corporate clients likeMcDonald’s, the Securities Institute,Caltex, Optus and the lucrative andprestigious Australian SchoolsCompetition on its books, why wasn’tit making anything even approaching aprofit?

Of the 27 overseas contracts, whywere only two of them making money?Of the money that was coming in, whywere amounts ranging from $600,000to something like one million dollarsin, for example, “bad debts,” movingmysteriously from one column toanother in the monthly accounts, orsimply disappearing into thin air?

Even more mysteriously, why weresome 20 of the 60 full-time staff,including all but three of the managers,sharing the same surnames and appar-

ently related to each other? Forinstance, why were the marketingmanager’s son and sister-in-law on thestaff books? Indeed, why was thecentre’s Director, Associate ProfessorJim Tognolini, employing in variouspositions within the company his wife,his two sons, his father-in-law, hisbrother and another non-related butclosely acquainted female associate?

Not surprisingly, the centresuffered from a chronic 50 percentannual turnover in staff.

When Margaret asked any pertinentquestions about the worrying state ofaffairs, particularly the accounts,Tognolini or his lieutenants turned onher, bullying her, humiliating her — ahigh-profile department head andMBA — with things like “Remember,you’re here because you can’t get a jobelsewhere.”

“The whole place, from the directordown, operated in a climate of bully-ing,” Margaret recalls. “There was agang of managers, including theprofessor’s sons, who closed rankswith him against anyone whocomplained or asked embarrassingquestions.

“One of the sons used to sit at hisdesk with a whisky bottle in front ofhim, yet if you criticised anything, oranyone, you were called in by thedirector and blasted. He did that to meonce just for allegedly ignoring hiswife in a shopping centre.

“I saw people with PhDs in tearsfrom the constant bullying andharassment. People were beingdestroyed internally, me included. Itwas terrible, what went on, and that’sfrom someone who grew up inGlasgow.”

And if the reference to T h eSopranos seems a little over the top,the cabal openly joked about them-selves as “the Mafia.”

When Margaret finally reported thesituation to university management,she was told “Bullying is a grey area,”and that meant of course that nothingwas going to be done. So she went tothe Auditor-General’s Departmentwith an umbrella complaint on theworkplace bullying, the apparentmaladministration and the flagrantnepotism and cronyism within the

centre. The file of complaints was inturn referred to the NSW IndependentCommission Against Corruption(ICAC) and the NSW Ombudsman.Like the university itself, ICAC didnothing.

She then laid a second complaintwith the NSW Auditor-General’sDepartment, this time under theProtected Disclosures Act. Thisprompted the university to launch itsown “internal audit” of the centre, butbefore it did so the administrationproceeded to apparently do what itcould to compromise Margaret’sanonymity — the very thing the act issupposed to safeguard — by doing alot of its investigative work by e-mail,and contacting her directly, “so thateveryone could see it was me who’dblown the whistle.”

During the audit, the universityinterviewed Jim Tognolini and hismanagers, but not Margaret. Mean-while, the word was out in the centrethat Margaret was the whistleblower.The management ranks closed, and theharassment and spitefulness began,with the university hierarchy doingnothing to stop it.

“There would be pointed remarksabout ‘that gutless wonder’ in meet-ings, with all eyes on me,” she recalls.“The director’s son would bark like adog behind my back while I wastalking with other employees.” Whenshe became so stressed that she had totake a couple of days off work, theuniversity solicitor told her to takeanother two weeks special leave. Whenshe returned from that, Jim Tognolinicastigated her for her “unexplainedabsence, “ but then told her “any timeyou want time off, just don’t come in.”

Margaret was being effectivelyisolated and sidelined. Meantime, theuniversity management completed its“audit” but wouldn’t let her see thefindings. And it was obvious thatnothing was really going to be done:the faculty’s reply, for instance, to hercharge that “people are being de-stroyed internally, including me,” wasthat “bullying is a grey area.” OnDecember 12, 2000, Margaret decidedto take the whole affair back to theNSW Ombudsman.


By the end of March 2001, therewere two independent investigationsgoing on into Margaret’s allegations,the Auditor-General dealing with“management and waste” in ETC andthe Ombudsman’s office examiningthe university’s mistreatment of herrights under protected disclosure, itshandling of her complaints generally,and the nepotism in the unit.

One might expect that an institu-tion as prestigious as UNSW wouldhave not just been as determined as thetwo government watchdogs to get atthe truth, but would have moved toprotect Margaret, as well as its ownreputation and dignity, while theinvestigations were under way. Not so.Among other things, ETC was able tochange her job description, effectivelydemoting her from management, thenmove her from the top-floor executivesuite to a new workplace next to theground-floor warehouse, “among thepacking cases,” even while the inquir-ies were going on.

In another incident, two ofTognolini’s assistant directors, “twostrapping six-foot men,” as Margaretdescribes them, accosted her one dayoutside the warehouse. They intimi-dated her so fiercely, she says, that“they did everything but beat me up.”

It should come as no surprise at allthat the reports of the Ombudsman andAuditor-General, issued in early 2002,not only found that the university hadfailed its duty to safeguard Margaretunder the Protected Disclosures Actbut upheld just about every complaintthat she had made.

The Ombudsman’s report notedthat while the university had aprotected disclosure procedure called“Guidelines for the Reporting ofKnown (or Suspected) Criminal orCorrupt Conduct, Maladministration orWaste,” none of the senior manage-ment it interviewed really knewanything about it, yet they were theofficers who were supposed to handleprotected disclosure investigations.And the report included an interestingcomment by Chris Lidbury, theuniversity’s chief financial officer, thatthe issue of conflict of interest throughnepotism or cronyism was not fullyappreciated at the university. Headded: “It’s a culture that pervades thewhole place.”

Margaret had won, if indeed therecan be any sense of victory or triumphin the reprisals that whistleblowershave to suffer. But by now, she wasnot just exhausted but was havingcounselling to deal with the intensestress that the whole affair had put herunder, and with union help she negoti-ated a severance package.

Margaret Love’s case isn’t anisolated one at UNSW. There are atleast five other known cases in whichstaff whistleblowers have madecomplaints about malpractice, fraud ormisconduct within the Physics,Engineering, Biomedical andOphthalmology departments. Three ofthese cases have one disturbing thingin common: they show not only amarked reluctance by the university tohave the cases independently investi-gated, but also a clear campaign ofisolation, harassment, intimidationagainst the complainants, and, in twocases, unfair dismissal.

Whistleblowers may remember thecase of David Miller and MarleneReid, the husband and wife teamworking as lecturers in the PhysicsDepartment five years ago. Marlenemade a complaint under the ProtectedDisclosures Act of managementbullying, harassment and othermalpractices and it was her husbandDavid who apparently paid for it. Hewas charged with “misconduct” andsummarily dismissed by the Vice-Chancellor for refusing to do a job thatwould have effectively demoted him.

The most current big clash involvesProfessor Bruce Hall, charged by threeof his assistants with falsifyingresearch, or, more to the point, failingto conduct research that he claimed hedid. When the first complaints weremade, the university conducted aninternal inquiry which found Hall haddone nothing wrong. The threewhistleblowers then found themselvesundergoing the standard isolation andintimidation that complainants seem tosuffer at UNSW.

But there’s since been a secondmore searching inquiry conducted by ateam of eminent independent academ-ics, including one from OxfordUniversity, that is said to be“damning” in its criticism of Hall’sconduct. Hall has waged a legalcampaign to have the report’s findingssuppressed. The university has notably

done nothing to dissuade him. It’sunderstood that federal police are nowconducting an inquiry. Meantime, thethree whistleblowers continue to betreated as though they’re the damned,not Bruce Hall.

The university administration hassuch an unblemished record forinaction and intimidation over fraud,mismanagement and malpracticecomplaints that WhistleblowersAustralia sees the urgent need for asearching and independent publicinquiry into UNSW’s administrationand management practices.

Whistleblowers Australia presidentJean Lennane says there’ve beensimilar complaints from a number ofuniversities, but “the record at UNSWhas been strikingly and dramaticallyworse than anywhere else. With thenumber of cases, all from differentdepartments, that have been verifiedbeyond doubt by independent investi-gators, one has to start asking about therole of top management.

“It would seem that those seniorstaff, usually heads of departments,indulging in malpractice, were(correctly) under the impression thatthe university would do nothing aboutit. How come? The Vice-Chancellor,as the person responsible for UNSW,must be asked to explain how and whyhe has allowed this to go on so long.”

Quite apart from the cases citedabove, the footnotes to MargaretLove’s experience at ETC warrant awide-ranging public inquiry.

After the findings of the Ombuds-man and Auditor-General, JimTognolini resigned from ETC — andeffectively switched horses inmidstream to become director of theopposition, the Australian Council forEducational Research, ETC’s mainprivate sector competitor. Thingsapparently did not improve much atETC in his absence. Tognolini’ssuccessor resigned and departedsuddenly in November, citing“personal problems,” and there havebeen further complaints by staff ofcontinuing cronyism, harassment andmanagement malpractice.

Now, it’s understood the NSWOmbudsman has been asked toinvestigate ETC’s new managementand to determine why nothing wasreally done by the university admini-stration, in the face of the findings of


two official government inquiries, toredress the problems at the centre afterJim Tognolini’s departure.

As for Margaret, unable to workany longer at the centre, she’s nowback to where she started as an ordi-nary teacher operating her own smallEnglish school near Sydney Airport.She’s managed to pick up the pieces ofher life and start again, but like mostwhistleblowers who’ve been treatedparticularly shabbily, her faith,confidence and self-esteem have beenseverely damaged. And this, as we’reall well aware, simply should not beso.

My whistle-stop book tour

Deborah Locke

In September 2002 I completed mybook titled Watching the Detectives. Itwas published by ABC Books last yearafter significant editing upon legaladvice. Originally 110,000 words, itwas cut down to 73,000 after beingtold much of it was too shocking in itsdescription of real events. My onlyreply to that was “my life has beengross.” Growing up in an alcoholichousehold was not my idea of a goodtime. Things however were only to getworse when I joined the New SouthWales Police Force in 1984.

In the first wave of police womenwho were operational, I was later tofind myself as the only girlie at theGaming Squad and one of two at theFraud Squad. You have to read thebook to learn of my adventures at theDrug Squad and other undercoveroperations. Senior Constable PhilArantz was the only whistleblower Iknew of in the cops, and for his effortshe was scheduled and thrown in amental institution. This was a timewhen Detective Senior ConstableMichael Drury was shot through hiskitchen window. The 1980s and 1990swere amazing and wild times amongSydney detectives.

An important date in my journeywas 9 September 2003. The launch ofWatching the Detectives was held inthe Balmain Presbyterian Church Hallwhere our meetings of WhistleblowersAustralia are held in Sydney. This is aspecial hall for me. Much of my early

healing was achieved there attendingAlanon, and being a member of thecongregation for many years. It wastime of celebration with balloons andchampagne, something I haven’t hadfor over a decade. (No, not theballoons, the other stuff with bubbles.)

I was very honoured that CynthiaKardell was kind enough to be MC forthe night, and a fantastic job she did.Dr Jean Lennane, Rev Ivan Ransom,Michael Drury, Morgan Ogg, StuartNeil and Quentin Dempster all spokeon the night and I thank them for theirsupport and kindness. The hall waspacked to the rafters; it was so inspir-ing to see such a turn out in support ofwhistleblowing.

The next day it was off on a twoweek national promotional tour withmy long-suffering husband Greg. He isan ex-copper who kept being told,“Can’t you control your bloody wife?”His career was ruined through associa-tion. Does this sound familiar?

First port of call was Victoriawhere I was given much support fromWhistleblowers Victoria. Christina isan amazing person who was inconstant contact with me via telephoneand email before my arrival. Awonderful supper was put on by thegroup and a lively night was had withadded speakers such as Kim Sawyerand Mervyn Vogt. Some Melbournedetectives made it known to me thatthey were not amused. People writeabout the police, but this was some-thing from the inside. I wonder if mybeing a woman also adds to theiranxiety. It was a fantastic experienceto be welcomed by all the membersfrom the Victorian chapter, and to beable to put faces to voices over thephone. Thanks Raymond for the liftback to our motel room.

Tasmania was an experience. I felta little scared through the isolation,after the reaction from some Victorianpolice. However I had Isla MacGregorto make me feel at home. The Italiandinner and talk was fantastic. I met somany amazing and interesting people. Ikept saying to Greg, “This is the trip ofa lifetime. How often do you get thechance to travel around Australia andmeet and celebrate with each group?”

Matilda in South Australia is astrong woman whom I admire. She isfocussed and dedicated to the cause.We had a beautiful dinner and then

“Whistleblowing in the Pub” (probablya first). What a great night and I madesome friends who I can’t wait to meetagain.

Neil Winser was another friend Imade, feeling like I already knew himbefore arriving in Western Australiaafter all our emails and telephoneconversations. He showed us aroundtown and I even spoke at the RoyalPerth Yacht Club. It was so good tohave met Frank Scott, another cop whohad been given the treatment. AvonLovell was full of good advice andsupport. Feliks gave me lots of advicebefore I hit north. I was very impressedwith Queensland and the professional-ism of the Whistleblowers ActionGroup. Greg McMahon has a goodshow and I was so impressed to be atthe University of Queensland and wasmoved by the bravery of this year’srecipient Julie Gilbert. She certainlydeserved her award of Whistleblowerof the Year. (The silver trophy she waspresented with was also very impres-sive.) Media coverage was also verygood for this event. The need forpositive media coverage of whistle-blowing is essential. People need toknow they are not alone and havesomewhere to go for support. GordonHarris, another cop we had the pleas-ure of meeting, is a wonderful exampleof life after whistleblowing. On theride back to our hotel after the presen-tation he detailed how through courageand determination he has rebuilt hislife after his trauma. I believe thebastards win if you go under. Years ofstress and pressure take their toll, andmany of us suffer with post traumaticstress, but you can’t let your whistle-blowing experience be the end of yourlife. You need to pick yourself up, dustyourself off and keep going. Part of thehealing process seems to be in sharingyour experiences with the newcomer. What an amazing whirlwind tour.Greg and I were speechless (which isvery rare) at the strength of thiswonderful fellowship that we enjoy.To have gone to each state I knew atthe time was a very special experience.I was blown away with the amazingpeople we met. All whistleblowershave a book inside them that needs tobe written. The more books we getpublished about our experiences thebetter. We need the general public to


understand that blowing the whistle ispositive for our society. They also helpnewcomers from making our mistakeson their difficult journeys. Australia is a big place, but theworld is getting smaller with moderntransport and communication. I thankeveryone for their kindness andsupport. Every state was fantastic andwelcomed us with a variety of events.It was the experience of a lifetime. Weneed to all stick together and supporteach other; our strength is in our unity.Thank you all.

Whistleblowing andwhistleblower protection

becoming theinternational flavour of

the month?

Jean Lennane

I was recently invited, as NationalPresident of WBA, to attend the 4thAsia-Pacific Conference AgainstCorruption in Kuala Lumpur from 3-5December 2003. This was the firsttime we’d been invited — or evenheard of it. The conferences, whichproduced an anti-corruption actionplan two years ago, are run by theOECD and the Asia DevelopmentBank. Most other Asia-Pacific coun-tries had signed the action plan, but notAustralia, until the government rathersuddenly did so on 1 December. It isalso apparently going to sign the UNConvention Against Corruption inMexico with 124 other nations later inDecember — something that couldhave its embarrassing moments later,as the convention includes clausesabout transparency of politicaldonations and outlawing the tax-deductibility of bribes. However if theAustralian public is never told about it— which seems to be the intention —presumably it will be business as usualin our democratic processes.

The conference was opened by thenew Malaysian PM, Badawi, whospoke very frankly about the scourgeof corruption and the need to combatit. (Whether and how that translatesinto action, of course, remains to beseen.) I found the attitude of delegatesfrom developing countries generally

very refreshing in their admission ofthe size and seriousness of theproblem, but sad in that they appearedto believe it’s different in developedcountries like Australia. I did what Icould to enlighten them; but of courseAustralia’s official delegate, a womanbrought in at the last minute fromAusAid, produced bland assurancesabout watchdogs, CLERP and othermeasures that have eliminated corrup-tion in the unlikely event that we’veever had any. (I asked her where shegot that misinformation from — shesaid it came from the Attorney-General’s department.)

The reason WBA was invited to theconference was because of its empha-sis on the importance of whistleblow-ers in combating corruption, and theneed to protect them. The attitude ofspeakers from Hong Kong’s ICAC andKorea’s new KICAC to whistleblowerscould not have been more differentfrom that of NSW’s IndependentCommission Against Corruption; andthere was considerable use of the quitam approach (exemplified in theUSA’s False Claims Act) of quantify-ing the amount of taxpayers’ moneysaved by whistleblowing on a particu-lar rort, and awarding a percentage tothe whistleblower(s). This wouldn’tapply to a lot of our members’ cases,but would send a useful message — aswell as providing compensation — inthose where it did.

An extremely interesting aspect ofthe conference came from an ex-prosecutor-general from Geneva, whoapparently has quite a reputation therefor chasing and catching money-launderers. It seems the days of heavycrooks (and terrorists) being able tomove their millions around Swissbanks with impunity have gone, thenew philosophy seeming to be (as onecynic puts it) “be zealous in dobbing inthe real crooks, in order to ensure thatrun-of-the-mill tax and alimonyavoiders are kept safe and happy.” Sowhile the Aussie corruption shopremains safely closed at home, it doesseem it may come under increasingpressure from developments abroad.

Medical whistleblowing

John [email protected]

Whistleblowing by doctors has certainpeculiar aspects:

• It is infrequent but usually of longduration before response.

• Community support for doctors mayintimidate management.

• Retaliation must be swift and severeto protect institutions.

• Inquiries are usually in-house andconfidential.

• Doctors’ “social power” mandatesspecially selected “peer” opinions.

• The employer selects “peers” buttheir opinions may be ignored.

• Governments base their responses onthe employers’ reports.

• Doctors fear legal (“negligence”)responses after publicity.

• Therefore, doctors want publicity tobe brief and low key.

• Employers (hospitals) want to beseen as having sound governance.

• Employers’ use of psychiatricevaluation of medical critics is rare.

• Any form of reinstatement orrecovery for a doctor isexceptionally rare.

• Any changes in institutional practiceafter criticism are transient andtrivial.

Last year I spoke with a cardiologistand a surgeon in different states whohad been stood down or sent on leavefrom public hospital posts pendingdecisions about their termination. Bothhad gone public about their percep-tions of inferior clinical performancein their workplaces. Both recognisedthat their hospitals’ actions mightrender them unemployable in theirspecialties in future.

Given the endless media publicityabout the appalling standard of statehospital services (not necessarily orclearly related to lack of funds), it isuseful to examine these doctors’situations in the light of my ownexperience. I allowed my services tobe terminated after 25 years of headinga major surgical department withprofessorial rank. The hospital’sprocedures then seem to have becomea template for in-house enquiries suchas those presently evolving for both


doctors recently publicised. (See BrianMartin’s website under “Suppressionof Dissent: Documents, Health.”)

According to the media, a seniorcolleague described one of the doctorsas follows: “… a very able, very ener-getic, aggressive, opinionated and pas-sionate individual. Some individualswho have those sort(s) of characteris-tics do have difficulties maintainingcomfortable relationships within ateam.” The other doctor was describedsimilarly in a different context. Bothhad wide community support as theyawaited the results of investigations oftheir conduct.

State health ministers haverefrained from intervening untilhospital-based enquiries and reportsare completed. The constitution ofmedical committees involved in theevaluation of these issues is presentlyunknown, as well as the pre-existingpersonal views of those “peers” whowill judge the doctors’ suitability toreturn to their normal work.

Work colleagues are said to have“unprecedented anguish and concern”at the atmosphere in their departments.A chief executive has commentedpublicly that “… the stress levels bothof the individual (doctor) concernedand also of the team … are now sohigh that a (patient) undergoingsurgery … may be under serious risk.”

Most medical whistleblowers havesincere passions about what they see asdangerous practices in their hospitals,complicated by bureaucratic ignoranceand deliberate inertia. Frustrated,impatient for improvement and fearfulof being caught up in medical catastro-phes they consider avoidable, they lashout. Amongst all parties involved inwhistleblowing, the solitary doctor isvulnerable to claims of personalnegligence regardless of his or heractions. The doctor may be declaredunsafe or even dangerous in the guiseof ominous terms such as “lack ofconfidence.”

Whatever the particular circum-stances, there are predictable manage-ment algorithms employed by medicalbureaucracies in most cases. Thewhistleblower is now in conflict with aself-protective, defensive corporatebody of infinite memory. Once themachinery of disciplinary retaliation isengaged, the whistleblower’s status isseriously damaged.

The ingredients of the process ofdamaging a doctor’s credibility includesome or all of the same elements as inother work situations. A warning isgiven not to “wave shrouds” at theadministration. Some restriction ofpractice conditions soon follows.There are implicit financial threats andsudden counter claims of the doctor’sperformance deficits. Accusations ofdisharmonious behaviour are invari-able, often with those chosen asreferees in enquiries. Suggestions ofincompetence, dishonesty, disloyalty,drug abuse and even immoralitycomplete the destruction of reputation.

The ultimate tool for humiliation isan inference of psychological“unsoundness” by requiring psychiat-ric examination of the whistleblower.This may masquerade as sympathy forthe well being of the doctor. While it isremarkable that a psychiatrist mightaccept such involvement with acolleague, coercion by fears ofrecrimination by management is oftenoverwhelming.

At the end of the day, the whistle-blower must survive. Alternativeemployment has to be found despitehaving a tainted record. Self-esteemhas to be regained. Family moralemust be maintained and shunning bypast colleagues must be endured. Thelatter want to shrug off the unseemlyconflict within their institutions.Complaining and passion are just notworthwhile. Professional ranks areclosed and those colleagues now go onwith more careful, defensive lives.

Almost certainly, the best strategyfor the defeated whistleblower is tomaintain maximum, continuingexposure of the details of his or hercomplaints and the employer’s totalresponse to them. Ultimately, govern-ments must correct the absurd situationwhere a seriously criticised hospitalmay conduct a private enquiry into itsown actions, with no necessary obliga-tion to explain itself, its procedure, itsdecisions or even to make amends. Adirector-general of health recentlyadvised me that such things “couldnever occur nowadays.” Obviously,they can and do.

Dealing with systemsfailure in WorkCover

saga

Muriel V. Dekker

Whistleblowing is often involved inwork injury cases in terms of revealingunsafe practices in the workplace andlack of duty of care by the employer.Then when the employer or theirofficers try to cover up unsafe prac-tices that caused injury andWorkCover fails to apply their“Statutory Claims Procedures,”compensation is withheld fromgenuine injured workers.

These nefarious actions haveserious costs to injured workers andtheir families. Some injured workerswrongly denied compensation losetheir jobs, lose their homes, becomesuicidal. Some families break up fromthe strain of struggling for deservedworkers’ compensation.

How does this happen? From myown case and from letters and discus-sions with other injured workers andtheir families I became aware ofanomalies in the workers’ compensa-tion system. The first wall causingprejudice and setting injured workersup for injustice happens when theemployer fails to record workers’accidents, injuries or reports aboutadverse effects.

The next anomaly follows whenthe employer writes incorrectly on theform for WorkCover (Workers’Compensation Office) that they haveno knowledge of the injury. Work thatthe worker performed can also beprejudicially withheld or wronglydenied.

When these kinds of contradictionsoccur there is a procedure in place thatis supposed to rectify them. As a letterfrom parliamentarian Santo Santoroexplains: there are “Statutory ClaimsProcedures” that WorkCover isrequired to apply to all claims. Inparticular when others contradict theinjured worker, then WorkCover issupposed to give natural justice byinforming the injured worker. Furtherthe Supreme Court says that it is thejob of WorkCover to get the evidenceand therefore to know what evidence iswrong or missing. But whenWorkCover fails to apply its statutory


procedures, then the breaches of law,such as the employer not informingWorkCover about a report of workinjury, and other mistakes remainunfairly uncorrected with the resultthat the injured worker is deniedcompensation.

In Queensland and some otherstates in Australia, WorkCover maysend chosen injured workers before itsmedical tribunals. Then WorkCoverputs the evidence it obtains (or fails toobtain) before its medical tribunal. Butthe medical tribunal can also denynatural justice by not informing theinjured worker about the contradictionsof others that can prejudice their case.To add insult to injury there is noappeal from medical tribunals to aproperly constituted court.

Recently, in Queensland, Q-Compwas set up as an avenue of appeal. Butan injured worker complained thatwhen Q-Comp ruled in his favouragainst the medical tribunal, on thebasis that his doctors’ evidence carriedmore weight because they treated theinjury, WorkCover then sent himbefore another medical tribunal thatWorkCover pays, which again deniedhim compensation. Barrister Dr PaulGerber in an article in the MedicalJournal of Australia wrote about themedical tribunals as follows: “TheMedical Tribunals are a Kafka-likenightmare where the injured workerhas to try to prove himself innocent ofa crime that they may never havecommitted without prosecutor orcourt.”

This example highlights the lack offairness of the medical tribunal systemof WorkCover. In what other arena cana person virtually be on trial butwithout knowing the charge? It alsohighlights the imbalance of the overemphasis on doctors’ opinions incontrast to the crucial factual evidenceabout what work was performed,reports about work injury or com-plaints about adverse effects when it isa cumulative work injury not an instantinjury, and witnesses’ statements. Inrespect to expert witnesses: a workerwho sees the injury happen is a betterwitness than doctors who were not atthe workplace when the injuryhappened.

An article in the Courier Mail,titled “Thousands of injured workersgiven injustice,” said that there is a

need to disband the medical tribunalsof WorkCover. The article wasinitiated from EARC (Electoral andAdministrative Review Commission)recommending in the late 1990s todisband the medical tribunals. WhenTerry Gygar was a parliamentarian hesaid, “I don’t like the MedicalTribunals system of hearing injuredworkers’ cases. They take us awayfrom legal protections built up overcenturies of law.”

But the problem is not only theoriginal failure to apply proceduresand laws, it is also the perpetuation ofinjustice despite Parliament givingavenues to redress injustice. InQueensland those avenues include theOmbudsman and the CJC, now calledthe CMC (Crime and MisconductCommission). I was appalled andsickened by my personal experience ofpetitioning these government offices,but after a long struggle to get past theombudsman’s offices (who in myopinion made several maladministra-tions), I managed over some years tofinally get through to two ombudsmen.These two ombudsmen on receivingdocumentary evidence from mepersonally began to vindicate my case,writing, in effect, that the case has notbeen heard properly. One ombudsmanrecommended the only avenue that it isreasonable to expect me to take giventhe lack of natural justice of themedical tribunal system in practice andthe intransigence of WorkCover. Thatrecommendation was for an ex-gratiapayment.

Since then, twice I personallyhanded the ombudsman’s letter ofrecommendation to the Premier ofQueensland, the Honourable PeterBeattie MP. The last time was in 2003at the Community Cabinet Meeting, atAspley State School. These meetingsare an interesting concept of thepremier that allows the public to speakto the premier or ministers, to askquestions or complain about an issue— a democratic process, or so it wouldseem. Now the premier is on the publicrecord speaking on radio and televisionsaying that, “I will not tolerate anyattempt at wrong-doing by thoseentrusted to serve the community.” Butthe premier sent the ombudsman’sletter — recommendating an ex-gratiapayment because there is a work injury— to the Minister for Industrial

Relations. Then Beattie wrote to methat he would let the minister reply tome. That was chilling, despite hisotherwise charmingly polite letter,because where is the accountability forthe minister? The minister wrote to mesaying, “that your worker’s compensa-tion concerns have been extensivelyinvestigated over the last 30 years andthere is nothing further that can beoffered to you.”

Obviously the Minister ignores thefact that the ombudsman shows thatthere is an injustice requiring rectifica-tion. The late Professor Leymann ofSweden wrote and lectured about thisissue. He said, “all around the worldpeople are starting to stand up aboutthe injustice of being allowed to godown the avenues asking for correctionof injustice but without a substantiveoutcome.” Who will implement thedecision of the High Court of Austra-lia? The High Court, in the decision ofAinsworth vs the Criminal JusticeCommission, declared that proceduralfairness must be observed.

Who is responsible when despitethe ombudsman writing that there is awork injury and recommending the ex-gratia payment I remain in a torturouslimbo of injustice?

This raises the question: Why is itthat now that the ombudsman hasgiven a reasonable avenue for redressof the injustice that a genuine injuredworker is still left to suffer injustice,when parliament passed the law givingus the Ombudsman’s Act — an Actthat specifically states that the thrust ofthe Act is to alleviate the effects ofinjustice ?

I am interested to get feedbackfrom others experiencing similaranomalies and issues and would askothers to contact me: Muriel Dekker,30 Allowrie Street, Stafford, Qld 4053;phone 07 3350 1741.

Comments onwhistleblowing

Ivan Ransom

I was fascinated by the exchange onthe nature of whistleblowing in theOctober issue. What really motivates aperson to hazard reputation, security,emotional well-being and, indeed their


very life, opposing, often singlehand-edly, vast organisational machineswith limitless resources and minimalmoral restraints? I think that it is morethan the desire to protest or present analternative point of view. JeanLennane’s paper (“What happens towhistleblowers and why”) touches thecore issue, but does not clarify it.

The core issue, I think, is theimplied social contract entered into byparticipating in society. There is theexpectation on the part of anemployee, for instance, that theemployer will not require engaging inactivity against the norms of society orto hazard personal safety withoutsubstantial and commensurate reward.On the part of the employer there is theexpectation that the employee willrender fair and honest service (notickling the till or doing “foreignorders”). This employment contractdescends into outright betrayal wherean employer does not disclose andremunerate extraordinary demands “upfront” or an employee exploits theemployer in a manner calculated tounjustly defraud. In most such scenar-ios, the “whistle” is blown to the unionor Workcover or the police and there isa process of retribution and restitutionat law. Presumably there is no whistle-blowing if there is no perception ofbeing defrauded. The employer maytolerate “foreign orders” as a way offilling excess production capacity andproviding “free” advertising. Anemployee may happily conspire with ashady entrepreneur so long as there is a“fair cut.” What brings on classicwhistleblowing is transgression of thefine line between the tolerable and theintolerable. The employer has thepower of dismissal and substantialmeans to protect his/her perceivedreputation. The employee has onlylimited means apart from protectiveinstitutions.

It is victimhood, the imbalance ofpower, which is inherent to the classicwhistleblower. Victimhood occurswhere the mechanisms of a civilsociety break down and there is nosystemic redress for betrayal apartfrom embarrassment, harassment andsabotage. Many actions of trade unionsare, therefore, theoretically a form ofwhistleblowing. The Department ofCommunity Services, the NSW Policehotline, the RSPCA and the Australian

Consumers’ Association are examplesof institutionalised whistleblowing.Just as many powerful offenders,emboldened by a psychosis of denialand a sense of betrayal by lessermortals, will seek to silence tormentorsby any means at their disposal, so thewhistleblower is also driven by a senseof moral outrage and will often feelcompelled to “win at any cost.” This isthe classic whistleblower conflict.

In government instrumentalities,the mediators of power are supposed tobe accountable to “the public,” repre-sented by the processes of government.These processes can break down,leaving public servants and the publicthey want to serve at the mercy of thenot-so-high-minded. The process ismuch the same as in industry exceptthat the “public good” may be ex-pressed through the political process.The wielders of power in public life,by defending their “turf,” create evenmore victims who complain all themore. Again, these are whistleblowers,the otherwise disempowered. Appealto the derailed processes of govern-ment is manifestly pointless to them.The classic conflict of the whistle-blower is played out again as a massmovement.

Responsible organisations seek todefuse this conflict by providing a“whistleblower mechanism” whichprotects the informer while ensuringthat the complaint is constructively andquietly dealt with. Often, however, thisis just a ploy to get the whistleblowerout in the open where the whistle-blower and not the problem can bedealt with.

There is one kind of governmentinstrumentality where the whistle-blower is in a truly problematicsituation: defence. Serving the militaryinherently involves compromise of“commonly held community values”and personal risk at a level not accept-able in the general community. Armedforces personnel commit to kill oncommand. They are trained not toquestion orders and to respect the“chain of command.” Conversely theleadership of the military is not subjectto conventional accountabilities.Blowing the whistle on the military (orfor that matter any related “securityagency”) can easily lead to convictionfor treason or even fully authoriseddeadly retaliation (Breaker Morant).

Do we need to detail the ins-and-outsof the “Children Overboard,” the trialsof Andrew Wilkie and the suffering ofMordecai Vanunu? A would-bewhistleblower in the military is alreadycompromised before he opens hismouth. Dissent against the militarygenerally cannot succeed as individualwhistleblowing. It has to be asorganised mass protest and politicalagitation. Attempts to apply conven-tional whistleblowing to nationalsecurity issues are doomed before theystart.

A whistleblower, then, is anindividual appealing to a standard ofmorality. He/she is dependant on whatis essentially a conservative view of“right and wrong” in conflict withindividuals and organisations “pushingthe boundaries” beyond the acceptable.Where the communal sense ofpropriety falls apart, whistleblowing isnonsensical. In a community of piratesone cannot blow the whistle onprivateering. Among the FrenchResistance there were no whistleblow-ers on cruelty to Nazis. It was histori-ans, not Bolsheviks, who disclosed theliquidation of the kulaks. The whistle-blower needs allies who hold the samevalues to which he/she appeals.Without substantial allies he/she ismerely a dissident or a mole. Substan-tial alliances flow from a perception bythe vast majority that the case putforward by the whistleblower is justand right. Opposition to the whistle-blower is built around fostering thecontrary perception.

Perhaps whistleblowing should becalled “ethical assertion.”

I know I haven’t covered all thebases but that’s my two-bob’s worth tomuddy the waters and mix metaphors.

Comments on the GaryLee-Rogers inquest

Edward John Regan

Having attended the first three days ofthe ongoing Coroner’s Inquest [3-5November 2003] into the suspiciousdeath of fellow Australian ProtectiveServices Officer Gary Lee-Rogers, itseems that my original doubts andconcerns appear to have been wellfounded given some extremely dodgy


evidence witnessed thus far. I continueto be disappointed and saddened forGary and his family, in particular hismother Aileen, whom I first met inVictoria in early March 2003.

Gary first rang me around the timeof the 2000 Sydney Olympics in a verydistressed state and in several ensuingcalls would occasionally burst intotears as he recounted the despicabletreatment meted out to him by severalapparently corrupt senior APS officers.Gary obtained my details fromWhistleblowers Australia who havecontinued a longstanding interest in thematter and several members haveprovided emotional support to Gary’sgrieving mother in her time of need.

As a fellow APS officer oncontinuous stress leave since late 1998,my own difficulties commenced in late1994 when I challenged a questionablemanagement decision and involved theintelligent input of a Sydney barristerwho solved the “vulgar impasse,” butas it turned out, not to the satisfactionof certain sections of the managementstrata.

As recriminative payback, I wascharged over the escape of anunauthorised non citizen (UNC) in asomewhat history making event, as Iwas the first (and last) and essentiallythe only officer ever charged over theescape of a UNC in the history of theformer Commonwealth Police, theAustralian Federal Police and theAustralian Protective Service, whichhad its beginnings in October 1984.

Despite the fact that there havebeen literally hundreds of escapes ofUNCs, alleged evidence of similardisciplinary action against othermythical officers, which was called forproduction at my AdministrativeAppeals Tribunal hearing in Sydney on4 April, was not forthcoming and infact, on the balance of probabilities,does not exist, contrary to the asser-tions of several former senior APSmanagement personnel.

In Sydney’s Daily Telegraph dated6 November (co-incidentally my owngreat escape occurred on 6 November1996), a tribute to legendary Australianbushman R. M. Williams was featuredand a particular part, so appropriate yetso absent in today’s world, caught myeye: “But one thing he knew instinc-tively — and that was how to be agood man, a man who was reliable, a

man in whom trust was never mis-placed.”

Had corrupt senior APS personnelbeen of the same exemplary goodcharacter, the number of similarlyaffected APS officers, along with Garyand myself, may never have had tosuffer the unbridled spite and basicvoid of common decency so sadlylacking in those higher up the tree thanourselves and with whom we unfortu-nately had the misfortune to crosspaths.

Report on the Inquest onGary Lee-Rogers

Jean Lennane9 November 2003

Gary worked for the AustralianProtective Service (APS), a branch ofthe Australian Federal Police (AFP), asa training officer. He was in email andother contact with WhistleblowersAustralia for about a year before hedied, as a whistleblower who wasbeing victimised and threatened in theusual way for law enforcement officerwhistleblowers, including beingcharged with criminal offences, andthreats to his life. His criminal casewas listed for the first week inNovember 2002. He was found dead inhis flat in Queanbeyan [a town nearCanberra] on 1 October 2002, havingbeen dead several days. He was lastseen alive late on 26 September. Hehad made a complaint of beingassaulted by an AFP officer, AnthonyMaguire, in the early hours of 26September.

Gary was in poor physical health,with severe recurrent pancreatitiswhich had led to his requiring insulinin varying amounts for several months,although after his discharge fromhospital on 21 September, having hadhis gallbladder removed on 17th, hemay not have required any. He wasalso in poor mental health, trying tocope with multiple losses and stresses,and his last hospital admission, from 5-21 September, was precipitated by asuicide attempt of sorts. Because ofthis, and his still being stressed anddepressed when he was discharged, hewas to be followed up with daily homevisits by the mental health team. These

of course did not occur, the only visitbeing on 27 September, when theworker, unable to raise Gary by phoneor at the door, simply left his card andwent away. Had he done what onewould hope would be expected in suchcircumstances, and called the police tobreak in, Gary would possibly havebeen found unconscious but still alive;or if dead, with his body in a muchmore favourable condition fordetermining the cause of death — thecause at this stage being still unknown.

There are four main possibilities inthis case: homicide, suicide, accidentor illness, or some combination of oneor more of these. It now seems clearthat unless it was homicide, in whichcase of course the perpetrator(s) knowswhat happened, there is now no waywe can ever know for sure.

The inquest ran from Monday toFriday, 3-7 November 2003 and is toresume for another week startingMonday 19 April 2004. I was presentfor the late morning and afternoon ofThursday and the entire proceedingson Friday 7th.

I had supplied a critique of theautopsy report, which was done by aDr Michael Burke from the VictorianInstitute of Forensic Medicine.Unfortunately he gave evidence on 5November, before I got there, andapparently answered some of mycriticisms. Whether his answers weresatisfactory I won’t know until I getthe full transcript of proceedings thatthe Coroner promised me.

It’s an expensive exercise for thetaxpayer, with eight lawyers at the bartable: 4 pairs of barrister and solicitor,representing Gary’s family; the CrownSolicitor’s office (who althoughtheoretically neutral, made theFreudian slip when talking to me ofreferring to the family’s lawyers as‘the defence’); NSW Police; and theAPS/AFP.

NSW Health is not represented, butit is noteworthy that if their worker haddone his job, in all probability therewould have been no need for aninquest.

The comments that follow arenecessarily preliminary and incom-plete. However there is enough alreadyknown to give rise to considerableconcern. On what I’ve now seen, Iagree with the psychological profilerwhose opinion, included in the


Commonwealth Ombudsman’s report,was that suicide was unlikely.

1. NSW Police investigation1.1 This was allocated to a juniorofficer in Queanbeyan, DetectiveSenior Constable John Moore. WBAexpressed concern to a NSW PoliceAssistant Commissioner about this atthe time, pointing out that it put Moorein an impossible position, as there wasa question of homicide by an AFPofficer. I was told then that it had beenallocated therefore to a more seniordetective, but when I checked withhim, he was simply supervising in thenormal way. Moore’s junior status hassince been remedied by his promotionto sergeant — hardly adequate; manywhistleblowers might have their owninterpretation of a promotion in suchcircumstances.

His investigation seems to havebeen far from ideal, and appeared tocause the Coroner some concern.Whether a more senior/experiencedofficer would have done any better, orwhether this is the normal standard ofhomicide investigations in NSW, isn’tclear. Particular concerns so far are:

1.2 Destruction of Gary’s mobilephone. This phone, which could havecontained important evidence of theharassment (text messages, etc.) thatGary was complaining of, was listedby Moore at the Queanbeyan policestation as lost property instead of anexhibit in the case. As such, after beingunclaimed by its (dead) owner forseveral weeks, it was routinelydestroyed. (We trust it won’t turn upagain at a later date, miraculouslyrestored to life, like the unlicensedfirearm in Mick Skrijel’s case.)Moore’s explanation apparently wasthat this was an unfortunate accident.Not being in court at the time he gaveevidence, I can’t comment on this orthe ‘prosecution’ reaction in detail, butI can note that when stating that Garyhad destroyed his copies of the time-sheets involved in the fraud caseagainst him (being unaware of thecharges at the time he did so), counselassisting the Coroner made it clear thiscould only have been evidence of guilt.

1.3 The mystery of the disappearingblood.

1.4 Report of an altercation outsideGary’s flat late on 28 September.[1.3 and 1.4 are omitted here due tolack of space]

1.5 Insulin, syringes, other medica-tions. There was no mention in theinitial police report, and hence theautopsy report, of the syringe(s)necessary to administer insulin.Apparently the syringe(s) and vials ofinsulin (whereby some estimate couldpossibly have been made of the doseGary had received, if any) and othermedications were not removed andpreserved as exhibits. There arephotos, they say, showing them on thebedside table, which I haven’t yet seen.

The Coroner was not happy aboutthis omission either. ‘Prosecution’seem to have a self-administeredoverdose of insulin as their favouredcause of death, despite the unfortunatelack of evidence.

1.6 ‘Suicide’ notes. These weresubsequently found in Gary’s effectsby his ex-de facto when she went tothe flat to pick up his things. One wasundated, but was packed away withanother dated from an earlier episode,i.e. they are probably irrelevant.However it’s of interest that as well asfailing to look in the laundry tub,investigators didn’t go through Gary’sstuff, or bother to pick up the pills shesaid were on the bedroom floor.

2. Apparent bias in counsel assistingthe coroner.

Both James Shevlin (CrownSolicitor’s Office) and Saidi, free-lance barrister, were at pains to assureme of their neutrality. Unfortunatelythis was not at all evident in their lineof questioning, which appears to havecast Gary as an alcoholic Machiavel-lian (yes, Saidi did use that word!)Walter Mitty-type (shades of Dr DavidKelly) criminal fraud. This was to beexpected, as standard in whistleblowercases, but what is now somewhatalarming is that the character assassi-nation appears to be going to beextended to anyone foolish enough togive evidence in Gary’s favour,particularly regarding the fraudcharges. The only witness so far onthis, Jon Wood, found the body, sopresumably had to be called. (There

seems to be no intention to call Gary’sother defence witnesses.)

Following Wood appearing, andsticking to his guns about havingwitnessed Gary’s boss authorisingGary to use his electronic signature onhis timesheets, Saidi suggested to theambulance officer present when thebody was found that Wood had refusedto give his name and address; and tothe social worker who had befriendedGary in hospital that he and Woodwere best mates and in constantcommunication, suggesting that theywould have cooked up Wood’sevidence between them.

Gary of course, like the rest ofhumanity, wasn’t perfect, and it seemshe did indeed talk up his job experi-ences and qualifications (how rare isthat?).

He also probably did forge twomedical letters about himself. This wasin the context, both times, of a rela-tionship breakup, where he appears tohave been trying to elicit sympathyfrom his ex. On the alcoholism charge,as is common in children of an objec-tionable alcoholic, he was mostlyteetotal, with occasional short-livedepisodes of binge drinking. TheMachiavellian charge appears intendedto explain the departure of the seniorofficer whose alleged misconduct Garyhad blown the whistle on. It wasn’tbecause Gary’s allegations werejustified, but because of cunning andsinister machinations intended to coverGary’s own fraud.

3. Apparent bias in the CommonwealthOmbudsman

The Ombudsman’s report isincluded in the brief of evidence to theCoroner. Unfortunately at over 70pages it’s hard to spread around, but onmy quick reading, it is the combinedwhitewash and hatchet job we wereexpecting. I would have thought itwould be better tactically for them toat least try to be seen to be giving Garya fair go, but apparently not. Perhapshe was just too evil?

With Gary’s inquest half over,many, many unanswered questionsremain. Most may never be answered.The Coroner seems to be trying to do agood job. We need to work on thoseadvising her to get them to give herboth sides of the story.


WBA business

Draft Minutes of WBAAnnual General Meeting

Canberra ACT12noon on 7 December 2003

1. Chaired by J Lennane,President.Minutes taken by C Kardell,National Secretary.

2. There were 22 attendees,including 4 visitors. Eight (8) membersin SA and VIC attended by telephoneon a conference call for the duration ofthe meeting.

3-4 Apologies and attendance areomitted here, to preservemembers’ confidentiality.

5. Previous Minutes AGM 2002.

J Lennane referred to theprevious minutes published inthe January 2003 edition ofThe Whistle, a copy of whichhad been made available to allpresent immediately prior tothe meeting. She asked ifanyone present could movethat the previous minutes aspublished be accepted as atrue and accurate record.

Proposed: B Martin.Seconded: C Kardell. Carried.

6. Business arising.

C Kardell indicated that theGary Lee Rogers Inquestwould be dealt with underOther Business.

7. Election of Office Bearers.

J Lennane, nominee for theposition of NationalPresident, stood aside forBrian Martin to proceed asinitial returning officer.

q Position of NationalPresident

J Lennane, being the onlynominee, was electedunopposed: she served asreturning officer for theremaining positions.

q Executive Positions.

The following nominees wereelected unopposed.

Vice President: PeterBennett [ACT]Junior Vice President:Christina Schwerin [VIC]Secretary: Cynthia Kardell[NSW]Treasurer: Feliks Perera[QLD]National Director: GregMcMahon [QLD]

q National CommitteeMembers (6 of).

Eight nominations werereceived. J Lennane suggestedthat as WBA needed all thevolunteers it could get, themeeting consider moving amotion to elect the first sixunopposed and to co-opt theremaining two, as casualcommittee members.

Accordingly the followingnominees were electedunopposed on that Motion,moved by P Bennett andseconded by B Steele.Carried.

Brian Martin:International Liaison

Geoff Turner:Communications

Derek Maitland: MediaPeter Bowden:

EducationMervyn Vogt:

Committee MemberCatherine Crout-Habel:Committee Member

Matilda Bawden: CasualCommittee MemberLori O’Keefe: CasualCommittee Member

J Lennane congratulated theincoming members, notingthat the increasing number oftalented, professional andstrongly motivated memberswanting to contribute couldonly augur well for theorganisation.

She noted that J Pezy, as SAChair, was part of theCommittee.

8. Position of Public Officer.

J Lennane advised themeeting that Vince Neary wasprepared to continue in theposition of Public Officer, ifrequired. She thanked Vincefor his willingness to continuein the position.Agreed.

J Lennane asked the meetingto nominate two members tosign an authority prepared byV Neary, to lodge therequired annual fee with theNSW Department of FairTrading.

Motion moved by B Martin tonominate J Lennane and CKardell so to do.Seconded: B Steele. Carried.

9. Treasurer’s Report.

J Lennane tabled a financialstatement prepared by FPerera ending 30/6/03 andbriefly stated the details asfollows:q Income: $4,455.62

[Subscriptions,Donations and Interest]q Expenses: $4,190.69

[Whistle production,networking etc and AGMcosts]q Excess of Income over

Expenditure: $264.93

Balance Sheet at 30 June2003.


q Accumulated FundBalance: $4,606.58

q Add Surplus for year:$264.93

q Total: $4,871.51

q Assets: B Martin BookA/c $306.20

q Balance at Bank:$4,565.31

q Total: $4,871.51

J Lennane called for theTreasurer’s report to beaccepted as a true andaccurate statement ofaccounts.Moved: P BennettSeconded: B Martin. Carried.

10. REPORTS

q The President’s Report.Jean was invited to attend the AsiaPacific Forum against Corruption,which was held in Kuala Lumpur lastweek and organised by the AsianDevelopment Bank and the OECD, topromote the United NationsConvention on the Prevention AgainstCorruption signed 2 years ago.(Australia signed up the week beforethe Forum). The Treaty is to be signedin Geneva in two weeks’ time.

The Treaty describeswhistleblowers in different ways butArticle 32 is strongly supportive of theprotection of whistleblowers andrequires, for example, the protection ofwitnesses in a variety of situations. Itdoes not become law in Australiaunless it is legislated but is aninternational obligation and in timewill find its way into our laws.

Jean reported that the organisershad looked for active anti corruptionbodies in the guest countries and hadfound a surprisingly supportive andinteresting group of people. ChrisWheeler, NSW Deputy Ombudsman,and Jean were the Australiancontingent. The Forum organisersbelieved WBA to be one of a kind inthe world.

Jean thought it a worthwhileexercise in spearheading change in theAsia-Pacific region, but wasuncomfortable with the realisation thatour neighbours felt that Australia hadthe issue solved. We know different

and Jean said so, whenever she had aforum.

Jean raised the Gary Lee-RogersInquest held the first week ofNovember last, in Queanbeyan, NSW.She urged members to set aside theweek beginning 19/4/04 to attend andkeep up the public pressure when theinquest re-opens. Jean believes it wasmedia pressure and our urging whichprompted the decision to have aninquest, in the first place.

After observing the proceedings,Jean has the impression that it isknown what happened, but isconcerned that it may not come out.She is certain that the eventsdemonstrate a clear need for the reformof the investigation of homicides inwhich police officers are implicated.Nonetheless, she is encouraged by theCoroner’s decision to widen the termsof reference and to provide Jean with acopy of the transcript, for her commentand suggestion. She noted the Coronerappeared to welcome public scrutiny.

Jean has been collecting details ofunsolved suspicious deaths implicatingthe police for a number of years. Sheplans to put the details up on a newwebsite called whistleblowing.com,which is planned (by one of ourmembers) to concentrate on policematters. Anyone having anyinformation is to contact Jean.

The Corporate Law EconomicReform (CLERP 9) put out byTreasury has been broadened in itsscope since we first heard about it atAGM 2002 from our guest speakerPeter Rooke, Projects Director,Transparency International Australia.It now goes beyond ASIC andincorporates reforms, includingwhistleblower protection, applyingacross corporate Australia. Jean notedthe contribution made by membersPeter Bennett and Kim Sawyer in thisdevelopment.

Jean is keen for WBA to giveannual awards to watchdogs. She putup the “Lucy” Award, as a suggestion,based on her dog’s response to apossible intruder. She went missing,under the bed. It is a common enoughresponse.

q The Secretary’s Report.

Cynthia Kardell reported ourmembership to be a little down on last

year, at 244. A significant numberappear to have been lost due to achange in address. She urged thecommittee members to be mindful ofthe need to pass on contact details ifknown and to remind new membersthat we do not provide receipts uponjoining.

Cynthia urged members toencourage those they help to join. Shesaid that when someone asks “Howcan I pay you for what you havedone?” she replies that “helping WBA(by joining and contributing) will bethanks enough.” Try it.

Cynthia also urged members toavoid problems by making sure thatnewcomers had realistic expectations.The WBA constitution does not allowWBA to advocate or represent others.Individual members, singly or ingroups, can assist one another, but onlyas individuals (who happen to bemembers of WBA). WBA can take upthe wider reform issues, and point to awhistleblower as an example of what isrequired by reform. This can be aticklish concept to get your headaround, but you need to, if you are toavoid upset and mayhem.

q Report from Victoria.

Mervyn Vogt provided a written reporton behalf of the Victorianwhistleblowers, which was available atthe meeting. He praised officebearersC Schwerin, R. Chhibber and LO’Keeffe, who have allowed the groupto expand their operation and supportto new members.

Public health issues of damagingventilation from an unshielded furnace,asbestosis arising out of toxic indoormoulds and others prompted a formalsubmission to a government Inquiry onOccupational Health and SafetyReform. Other issues of bullying andimproper conduct in the armedservices, and public interest issues inCASA and Telstra, have kept thegroup active. Mervyn noted that he hadbeen able to get 20% of the vote, buthad been prevented by the governmentvotes from taking up a position on theTelstra Board.

The group has continued to besupportive of Mick Skrijel andRaymond Hoser in their long runningcases.


Victoria hosted a successful booklaunch for Debbie Locke’s bookWatching the Detectives.

q Report from South Australia.

John Pezy reported by telephone thattheir group continued to be busy and totake a particular interest in the generalreform of the legal profession, largelybecause of their knowledge of the AMorgan and T Grosser cases. MatildaBawden prepared a submission on thebranch’s behalf to a parliamentaryjoint commission on legal reform andwas assisting other individuals to dothe same.

South Australia hosted asuccessful book launch for DebbieLocke’s Watching the Detectives.

q Report from the ACT.

Peter Bennett has been working with agroup of academics from Canberra Unito promote a better use of the ACTwhistleblower act [called the PublicInterest Disclosure Act] by theOmbudsman and other authorities, asthe Act induces disclosures withoutaffording protection. He cited aninstance where the wrongdoer wasinterviewed by the Ombudsman, andthe whistleblower was interviewed bya junior staffer.

Peter has made a submission onthe CLERP 9 proposal (referPresident’s Report above).

He is involved with an inquiryinto the Australian SportsCommission, as an FOI requestproduced a bill of $1400 to considerwhether they should release policydocuments which did not exist. He willkeep us posted.

q Report from New South wales.

Cynthia Kardell reported the meetingswere less well attended, but that emailand telephone contacts were up. TheTuesday Caring and Sharing Meetingscontinue to be blessed by thefortnightly attendance of D Maitlandand P Bowden, who were bothinsightful and practical in theirdealings with those who came to themeetings. The weekly brigade of MZoidis, P Sandilands and D Clarke areto be commended for their unwaveringcommitment to the Tuesday night

meetings, which are convened by CKardell.

The NSW Branch had been busysupporting the current rash ofUniversity of New South Waleswhistleblowers, and police reform viaits involvement on the Internal WitnessAdvisory Council meetings. We havebeen instrumental in getting the policeto take whistleblowers back on staffand to have their courage recognised atthe annual graduation ceremony. We,like the other states, have hosted abook launch for Debbie Locke’s bookWatching the Detectives. It was aspectacular success: about 150 peopleattended. We have provided someeffective cross border support for aQueensland services whistleblower, intandem with a TI (Australia) operative.

J Lennane has made a submissionon behalf of WBA to a governmentinquiry into mental health in NSW andcontinued her assault on NRMApropriety. C Kardell made asubmission to the Police Service aboutpolice legislative reform. D Maitlandhas provided media support and haswritten up some of the whistleblowerstories. P Bowden has publishedarticles on ethics of whistleblowing.He, G Turner and C Kardell areupgrading our website.

B Martin and J Lennane havecontinued to respond to phoneenquiries, together with C Kardell. GTurner deals with incoming emailcontacts. And finally, only this week,the NSW Premier’s Departmentdecided to subscribe to The Whistle.

q Communications Report

Geoff Turner reported that hecontinues to transfer emailcommunications within the group andeducate the users where he can. Henoted that Peter Bowden has joinedhim and Cynthia in upgrading thewebsite whistleblowers.org.au, andthat we are (now), with Peter’s help,starting to make progress.

Geoff was, once again,responsible for the tele-conferencehook-up at the AGM.

q Media Report

Derek Maitland reported that, with CSchwerin’s help in Victoria andjournalist Gerard McManus in Sydney,

we were able to publicise the GaryLee-Rogers matter with some effect.And with C Kardell on the telephonesand him on the case, we were able tomobilise the print media and ABCFour Corners to publicise the BruceHall matter at the University Of NewSouth Wales.

He lamented that some of thejournalists he had contacted appearedto want it too easy. But we need torealise that we have to help ourselvesget over the prejudice out there, so weshould be careful not to bombard ajournalist with a lot of detail, as it wasmostly a turn-off and unproductive,and confirmed existing bias againstwhat some see as dobbing.

q International Liaison

Brian Martin focussed on the internet,as an alternative means of getting yourstory out there and urged members touse it more. He said that the UKwhistleblowing organisation Freedomto Care is still active. He urgedmembers to reach out to individualsand organisations with shared concernsacross the globe.

He also reported as the editor ofThe Whistle. It is being publishedroutinely at three-monthly intervalsand has become a relativelystraightforward process. But he wouldwelcome more material from themembership, as he does not have thetime to go looking more widely.

11. Agenda Items.

Jean Lennane asked who was going toput up their hand for the AGM lateNovember next year.

Mervyn Vogt agreed that Victoriawould host the AGM in 2004. Heundertook to confirm date and venuefor inclusion in the July Whistle, sothat agenda items could be publishedin the October Whistle.

12. Guest Speaker: Andrew Wilkie,Office of National Assessmentswhistleblower.

Andrew Wilkie went over the history,before taking questions, some of whichare set out below. Briefly he was asystems analyst at the ONA and hadaccess to the database about Iraq. Hedecided the war was unjustified and


decided to resign and go to the mediato get support for his argument. Basedon raw intelligence he argued the warwas unethical, Iraq did not pose athreat, a war posed too manyunknowns and the government couldhave looked at other options.

Wilkie was asked why others didnot speak out. He analysed it this way.The intelligence community wasdiverse, some tend to always comply,some always agree along party lines,some fall for spin, some think theycannot change anything and mostlythey do not have the financial andpersonal security to object. Plus theintelligence community has been underincreasing pressure to comply, sinceEast Timor.

He was asked why did he decideto resign? The issue was bigger thanthe employment issue it would havebecome had he stayed on.

And did you expect thegovernment to criticise you in theway you were? Yes, it wasn’t asurprise.Were you pleased and surprised to

get the Whistleblower of the Yearaward from the UN? Yes. The awardwas prompted by a Sydney person andmay not be repeated. I hope that it isrepeated, as it is an importantrecognition for whistleblowing.

Jean Lennane wished him well onbehalf of WBA. She thanked him fortaking the time to come and speak tous, but mostly for blowing the whistleon the war in Iraq.

13. Other Business.

There being no other business, themeeting was opened for discussion ofthe items previously advised.

q Matilda Bawden (SA): TonyGrosser’s appeal failed. He wasgiven 23 years. Catherine Crout-Habel has picked up where JackKing left off, and is helping himwith his appeal to the High Court.

q Dave Berthelson: The MickSkrijel wrongful criminalprosecution case failed. Based onthe detailed analysis, photographicevidence and history over 16 yearsprovided by Dave, the judicialsystem failed Mick. Costs wereawarded against Mick and Dave,

as the lay advocate. Dave wasfortunately successful in hisdefence of the costs application.

q Jean Lennane: The Asia PacificForum (dealt with above) wasfairly posh, which was nice. ButJean did become a miteuncomfortable as part of anofficial motorcade through thecity, when the traffic lights wereswitched to red, to allow them anuninterrupted passage.

The discussions and talkswere diverse, including, forexample, the role of NGOs,reforms to the public service bythe introduction of codes ofconduct, legislation, CLERP 9initiatives and criminalisingcorruption. The organisers hopedto involve the wider Asia Pacificsociety over time (the AustralianDFAT is involved with thisaspect).

Workshops were available ontopics such as conflict of interest,drafting whistleblower laws,techniques for detectingcorruption, improving proceduresand legal assistance to allow forthe proceeds of crime to berecovered in Switzerland.

Significantly, the Hong Kongand Korean ICACs talked longand persuasively about the centralrole of whistleblowing in exposingand controlling corruption.

q Peter Bennett: The UN HumanRights Conventions have to beutilised more, in law, as they mayassist in broadening andstrengthening the right of thepublic servant to comment withoutfear of reprisal.

Peter has a Federal Courtmatter before the Full Bench, inrelation to the operation and effectof the FOI Act. It raisesConstitutional matters and maycreate a precedent in law.

His projects for 2004 are theenactment of the Democrat’sPublic Interest Disclosure Bill anda better application of theprevailing ACT whistleblower act,upon which it is modelled, and tolook at the issue of governmentgrants for particular projects, notoperational costs as such.

q Peter Bowden: Stop press! Thereis an Australian Standard forinternal whistleblowing: refer ASI8004.

Jean thanked all present for making theday a memorable one. She asked themto show their appreciation for PeterBennett and his wife, Yvonne, formaking it possible and Geoff Turnerfor the tele-conferencing facility.

Meeting closed 4.50pm.

See you in Melbourne, November2004.


Whistleblowers Australia contacts

ACT contact: Peter Bennett, phone 02 6254 1850, fax 026254 3755, [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 p.m. (or come at12:30 p.m. for lunch and discussion). The July generalmeeting is the AGM.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

VictoriaMeetings 2.00pm the first Sunday of each month, 10Gardenia Street, Frankston North.Contacts: Christina Schwerin, 03 5144 3007,[email protected]; Mervin Vogt, 03-97865308, [email protected].

Western Australian contacts: Avon Lovell, 08 9242 3999(b/h); John White, 08 9382 1919 (a/h).

WhistleBrian Martin, editor, [email protected], 02 4221 3763,02 4228 7860; Don Eldridge, Isla MacGregor, Kim Sawyer,associate editors

Comments from Ralph Nader

Ralph Nader is well known as a consumer advocate andmore recently as US Greens candidate for president. In the1960s, he wrote a book titled Unsafe at any Speed thatattacked US automobile manufacturers for making unsafecars. General Motors arranged for surveillance of Nader inan attempt to obtain information that might discredit him,but this backfired when the surveillance was revealed. Hisexperiences of speaking out and suffering reprisals ledNader to take an active interest in whistleblowing.

A reader recently forwarded an interview with RalphNader published in Time, 5 August 2002. Remember thatthis was at the height of the Enron scandal. The first twoquestions and answers are worth reproducing:

Time: Did you think there was this much corporatecorruption?

Nader: No. And isn’t it saying something that it exceededmy anticipation? It is impossible to exaggerate thesupermarket of crime. It’s greed on steroids.

Time: Why didn’t we know about it all sooner?Nader: What amazes me is that there are thousands of

people who could have been whistle-blowers, from theboards of directors to corporate insiders to the accountingfirms to the lawyers working for these firms to the credit-rating agencies. All these people! Would a despoticdictatorship have been more efficient in silencing them andproducing the perverse incentives for them all to keepquiet? The system is so efficient that there’s total silence. Imean, the Soviet Union had enough dissidents to fillGulags.

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.

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