WHISTLEBLOWING THE EXPOSURE BY PEOPLE WITHIN AN ORGANISATION

WHISTLEBLOWING THE EXPOSURE, BY PEOPLE WITHIN AN ORGANISATION, OF ILLEGAL OR UNETHICAL ACTIVITY, OR n SIGNIFICANT MALADMINISTRATION n

IT IS NOT ACTIVITIES THAT THE WHISTLEBLOWER BELIEVES n ARE INCOMPETENTLY MANAGED, or n THAT THE ORGANISATION SHOULD BE PURSUING, Unless a breach of clearly agreed objectives or documented procedures are evident.

EXAMPLES: UNITED STATES: [MOVIES] n n n THE INSIDER: Russell Crowe as Jeffrey Wigand, VP Research and Development, Brown and Williamson tobacco, SILKWOOD: Meryl Streep as Karen Silkwood, chemical technician at Kerr. Mcgee's plutonium plant (oklahoma): ERIN BROKOVICH: Julia Roberts v’s Pacific Gas & Electricity. toxic wastes in Hinkley, Ca. TIME MAGAZINE, 30/12/02: Enron (Sherron Watkins), FBI (Coleen Rowley), Worldcom (Cynthia Cooper). Persons of the Year. ISRAEL: MORDECAI VANUNU. 1987 Told of Israel’s nuclear arsenal to the Sunday Times in 1987 - First eleven years spent in solitary confinement. Due out 2004. AUSTRALIA DR PHIL VARDY & Dr. William Mc. Bride: Thalidomide & research fraud MARGARET LOVE & the Educational Testing Centre at Univ. NSW - nepotism, fraud, PHILP ARANTZ & The NSW police: Bogus crime statistics.

REASONS FOR WHISLEBLOWING IDEALISTIC…… Honesty Efficiency, Correctness Support for ‘Victim’ (of fraud) DEFENSIVE……. Against being associated with an illegal act NEGATIVE……. Dislike of supervisor. Paranoia (WB’er is the victim) Loud Mouth To avoid censure. AND POSSIBLY SEVERAL REASONS MIXED TOGETHER

RETRIBUTION WHISTLEBLOWING GENERATES CONSIDERABLE HOSTILITY from the people targetted by the whistleblower and by the organisation generally. REASONS FOR HOSTILITY: n is n n A BELIEF THAT THE WHISTLEBLOWER IS DISLOYAL, Acting against basic instincts of solidarity and mutual protection (“tribal” instincts), Destroying security (jobs & income) of colleagues, “Stealing “ information (unfortunately necessary to prove accusations), Is a “dobber. ”

RESULTS OF WHISTLEBLOWING n n n n JEFFREY WIGAND Now a school teacher ( was a Vice President). KAREN SILKWOOD IS DEAD. Under mysterious circumstances. ERIN BROKOVICH Was not a whistleblower, but an activist Now widely sought after as a speaker on corporate environmental issues. MORDECAI VANUNU Still in prison PHIL VARDY went through a difficult period, with a marriage break-up, and immense career difficulties. Still bears the scars, but has recovered. Has almost completed his retraining as a lawyer. MARGARET LOVE spent two years in and out of work. Has now successfully started up her own English Language Coaching College. The Head of ETS is now General Manager of the Australian Council for Educational Research. PHILIP ARANTZ was immediately dismissed. (Compensated 14 years later but never reinstated) ).

Reactions to TIME article From Letters to the Editor: n n n On Rowley: “True whistle blowers blow beforehand, ” “self -serving, ” “a woman in mid-life crisis, ” “bid for publicity”, “smart in hindsight”. Cooper: “an internal auditor-only doing her job” Watkins: “ wrote only to her boss. Did not go public” All three: “traitors to their organizations”. +ve: “proved that women are more courageous than men”, “time for a woman US President”

Australian Government National Gallery of Australia, HR Dept circular to staff: Should not “ communicate gallery information or express. . views about gallery operations to. . media w/o express permission of director” n Reminded that penalty was two years jail under s. 70 of Crimes Act by which Commonwealth Officers are bound. (SMH…May 26, 2003)

WHISTLEBLOWER LEGISLATION n UNITED STATES: False Claims Act: n GREAT BRITAIN: The Public Interest Disclosure Act, July 1999. . n NEW ZEALAND: Protected Disclosure Act, Jan 2001. n NSW: Protected Disclosures Act, 1994. . n VICTORIA: Whistleblowers Protection Act, 2001. n QUEENSLAND & SO. AUSTRALIA n AUSTRALIA: Democrats proposal before the Senate. n CANADA: Common Law: wrongful dismissal only.

PROTECTED DISCLOSURES ACT, NSW, 1996 TO FACILITATE DISCLOSURE IN THE PUBLIC INTEREST, of corrupt conduct, maladministration, or substantial waste. BY n n n ESTABLISHING PROCEDURES FOR MAKING DISCLOSURES PROTECTING PERSONS FROM REPRISAL PROVIDING FOR THE DISCLOSURES TO BE PROPERLY INVESTIGATED. Does not cover the private sector, Covers inaction as well as action Covers bullying, sexual harassment, product safety, occupational health and safety, & the environment only to the extent of the law.

THE DISCLOSURE must be Made by a public official, to An investigating authority n Official in the authority to which the WB belongs, If not successful, to n a member of Parliament or n a journalist, n in accordance with prescribed methods: 1. Corrupt conduct to ICAC, 2. Maladministration to Ombudsman, 3. Serious & substantial waste to Auditor General.

CORRUPT CONDUCT n n n “The dishonest or partial exercise of…official functions” Attempts to prevent “the honest & impartial exercise of official functions” “. . a breach of public trust” “misuse of information or material” Conduct involving bribery, blackmail, secret commissions, fraud, theft, tax & revenue evasions and many similar. [From the ICAC Act]

MALADMINISTRATION n n n Contrary to law, Unreasonable, unjust, oppressive or improperly discriminatory, Based wholly or partially on improper motives. [Ombudsman Act of 1974. ] SERIOUS & SUBSTANTIAL WASTE n of public money, [Public Finance & Audit Act, 1974]. Complaints can also be made under [Police Integrity Commission Act, 1996] [Local Government Act, 1993]

UK PUBLIC INTEREST DISCLOSURE ACT, 1998 n n n n Covers all people at work Disclose to Prescribed Regulators – audit agencies, friendly societies, trade union registrars, Dir Gen. Fair Trading, certain public authorities, NGOs, etc. Can seek legal advice through Public Concern at Work, Overrides gagging clauses, Covers civil, criminal, regulatory or administrative law, miscarriage of justice, danger to health, safety and the environment. Also attempted cover-ups of these. Encourages internal procedures Injunctions against dismissal.

Background to UK Act FINDINGS from ENQUIRIES Clapham Rail disaster -Problem noticed beforehand n Piper Alpha – fear of losing job, n BCCI – nobody spoke out n Zeebrugge Ferry – five complaints beforehand, n Bristol Royal Infirmary – Child deaths, doctor’s warnings, finally quit his job, n Children in Care – 30 reports of same sex abuser ignored, n Arms to Iraq enquiry. Was reported beforehand.

Before you blow: IN NSW: n Read the Act, seek legal advice, other advice, n Make sure you have all facts and if possible, proof, n If a closed industry, think twice, n Be prepared to be ignored, even victimised, n KEEP YOUR COOL [at all times] n Whistleblow anonymously if possible, n Remember – you are the one behaving ethically.

SOME QUESTIONS n n n Are whistleblowers more ethical than the rest of us? Why then do think they are usually treated badly? Do you think a whistleblower would face difficulties in any organisation you know? If yes, what could prevent unpleasant treatment? Some organisations require the company or agency to have an internal whistleblower system. Would it work generally? In organisations you know? Are there organisations where the problem is the senior staff? Some people argue that autocratic, uncommunicative or uncommitted senior staff are often the reason behind inadequate provision of many public services, often a whistleblowing cause. Others, both believe it is a wider problem, apparent in many private and public organisations. . Was Modecai Vanunu a whistleblower? Should a private sector bill be introduced? What transgressions should it cover?