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

TheWhistle NO. 37, APRIL 2004

Newsletter of Whistleblowers AustraliaPO Box U129, Wollongong NSW 2500

Julie Gilbert, Queensland Whistleblower Supporter of the Year, 2003

PAGE 2 THE WHISTLE, #37, APRIL 2004

Media watch

Support for peoplewho speak out

EditorialAustralian, 8 January 2004, p. 10

When any organisation has a legal orethical problem the universal bureau-cratic instincts of self-preservation takeover. People shut up, sit tight and hopethe dangerous documents that give thegame away never find their way to theoutside world. The worse fate that canbefall a company or public-sectoragency with something to hide is tohave an enemy within — a whistle-blower. But what is bad for peoplewho are trying to hide serious mistakesor plain wrong-doing is very good forthe community at large. The scandal-ously poor standards in southwestSydney hospitals — 19 possiblyneedless deaths are now with thecoroner for investigation — onlybecame public because five nurses hadthe courage and determination to keepcomplaining. And when their com-plaints and warnings were ignored theybroke ranks with their colleagues andspoke publicly.

But doing the right thing andblowing the whistle is never easy.Whistleblowers are rarely thanked bytheir organisations. More often theyare punished or left in limbo. Univer-sity of New South Wales academicBruce Hall has been able to strenu-ously defend his reputation against theconclusion of an inquiry that he usedfalse data in research — and remainsemployed at the university. But someof the junior staff who spoke outagainst him fear their careers are injeopardy. In the case of the Sydneynurses, their reward for breaking ranksagainst their hospital colleagues was tobe vilified and forced to find new jobs.

Certainly there are state and federalagencies charged with regulatinggovernment and industry in thebusiness of investigating complaintsfrom whistleblowers. But as theSydney nurses discovered, it is oftenhard to get powerful people to takeallegations seriously. The HealthComplaints Commission turned out tobe part of the problem, not the solu-tion, largely whitewashing the hospital

management. Which means the mediahas a necessary role to play in assistingwhistleblowers when systems fail andthey are variously ignored or perse-cuted for speaking out. Inevitably, notevery person who rings a journalistwith amazing allegations of corruptionand cover-ups acts in good faith. Butfor those who do, the media can helpensure their questions are answered. Itis an important support for people whoplay an essential social role. Whistle-blowers like the Sydney nurses knowthat speaking out might ruin them —and do it anyway.

How Australia shouldfight white-collar crime

We need whistleblower legislation —it could save governments billions,

writes Kim Sawyer.The Age, 21 January 2004

An unidentified employee put a stop tothe losses recently incurred by theNational Australia Bank by informingmanagement of the unauthorisedtrades.

Whether the company is Enron,WorldCom, Parmalat or NAB, it oftenrequires a whistleblower to identifycorporate malfeasance. Whistleblowershave become the independent regula-tors, the eyes and ears of the share-holders.

One of the main reasons for this isthat our systems are so complex thatonly an insider can identify wrong-doing. A second reason is that regula-tors are often too risk-averse to act. Awhistleblower testified before the HIHroyal commission that his advice to theAustralian Prudential RegulatoryAuthority that the net assets of HIHcould be at risk was ignored. As HIHshowed, substantial losses can beincurred when whistleblowers areignored.

In Australia, whistleblowers areeven more important than in othercountries because of our small busi-ness network. When regulators andthose they regulate are too close, thereare governance risks. There is a finalreason: many of our former public

institutions, such as universities, havebecome semi-private. But there are noshareholders, and there are no marketanalysts assessing their accounts. As aconsequence, there is often less trans-parency than for a publicly listedcorporation.

Whistleblowers are rarely pro-tected. Yet a survey on global fraud byErnst and Young identifies whistle-blowing as the second-most importantcontrol of fraud behind internalcontrols, and more likely to detectfraud than internal and external audits.The OECD, in its latest report oncorporate governance, lists the protec-tion and encouragement of whistle-blowers as one of the most importantprinciples of corporate governance.They recommend a confidentialcontact on the boards of companies towhom whistleblowers can report.

In the United States, the mostpowerful act to protect whistleblowersis the False Claims Act, which allowswhistleblowers to initiate lawsuitsagainst fraudulent claimants on thegovernment. This act is used to combatmany types of fraud, includingMedicare fraud and computer-basedfraud. A fraudulent claimant may beliable for three times the loss sufferedby the government in addition to civilfines. Importantly, the act not onlyentitles the whistleblower to protec-tion, but to share between 15 and 30per cent of the money recovered by thegovernment.

The act is a credible deterrentbecause the penalties are severe, thestatistics on fraud recovery are widelypublished, and the onus of proof fallson the respondent as well as thewhistleblower. Since 1986, more than$6 billion has been recovered, theaverage recovery per case has beenmore than $7 million, and the averageamount to whistleblowers 18 per centof the cost recovery.

In Australia, where there is no falseclaims legislation, estimates of fraudvary. A recent inquiry into fraud andelectronic commerce in Victoria, forexample, estimated losses between$200 million and $1.2 billion. Butsome estimates put the annual cost of

THE WHISTLE, #37, APRIL 2004 PAGE 3

fraud to all types of government inAustralia as high as $20 billion.

White-collar crime is an importanteconomic problem. It is time Australiaalso had effective laws to combat it.

Kim Sawyer is an associate professorat the University of Melbourne [and along-standing member of Whistleblow-ers Australia].

Protect, not pay,whistleblowers

Inside information can be the key tofinding and fighting collective wrong-

doing.Editorial, The Age, 23 January 2004

Inside information is often the mosteffective weapon against collectivewrongdoing, from corporate miscon-duct to organised crime. It mayproduce the first warning that some-thing is seriously amiss, as in breachesof corporate governance that lead tohidden losses of staggering magnitude.It also may be the best means ofobtaining evidence admissible in courtif investigators are otherwise con-fronted by a conspiracy of silence.Law enforcement agencies can procureinside information in three ways:relying on a whistleblower or insideinformant, infiltrating the suspectorganisation with an undercover agent,or gathering evidence through elec-tronic surveillance. The first is usuallythe most effective. In the UnitedStates, the Federal Bureau of Investi-gation has used all three means,backed by controversial anti-racket-eering legislation, to cripple the once-impenetrable Mafia.

In Australia, “dobbing in” wrong-doers has long been regarded either asnot the done thing or as too hazardousto venture. But the tide of opinion ischanging; witness the growing successof police “crime-stoppers” and TaxOffice anonymous “tip-off” programs.When more serious criminal or civilwrongdoing is involved, the value ofthe whistleblower is exponentiallyhigher. In such cases, conscience andcourage may not be sufficient motiva-tion, especially if the whistleblower’sidentity cannot be concealed or if he orshe has to be a witness for theprosecution. Legislation to protect

informants against retribution — fromostracism or dismissal to intimidationor extreme violence — has not beensufficiently effective. It needs to becomprehensively strengthened andmore rigorously enforced.

More controversial is the questionof pecuniary incentive for whistle-blowers. Police are not above usinginducements in cash or kind, fromprivately subsidising their “snouts” topublicly posting big rewards forinformation leading to convictionwhen stumped in a major murderinquiry. In the United States, the FalseClaims Act, which has been remark-ably successful in combating large-scale fraud, not only protects whistle-blowers but allows them to share in themoney recovered by the government.This statute reinforces the draconianRICO (Racketeer-Influenced andCorrupt Organisations) Act, which alsomakes it easier to procure convictionsand provides for crushing criminal andcivil penalties.

Enticing whistleblowers bymonetary rewards seems morallyrepugnant and runs the risk of attract-ing maliciously based information ortainted evidence of suspect credibility.It would be better to try to counter theanti-dobbing culture ingrained in manyorganisations and offer effectiveprotection to whistleblowers whovolunteer vital information in cases ofcorporate malfeasance, official corrup-tion or criminal conspiracy.

Whistleblowersstill out in cold

The exposure of unauthorised tradingat the NAB has highlighted the risks

taken by whistleblowers, writesAnnabel Hepworth

Australian Financial Review,17-18 January 2004, p. 4

When the National Australia Bankintroduced its upgraded whistleblowerpolicy last August it probably didn’tenvisage starring in a home-grownversion of the film Rogue Trader.

The unauthorised trading that haslost NAB up to $180 million wasinitially exposed by a staff member onthe trading desk in Melbourne,according to reports.

The informant can take somecomfort from NAB’s policy, whichaccording to the bank protects whistle-blowers from harassment, discrimina-tion or dismissal.

NAB’s broadened policy wasintroduced at about the time StandardsAustralia was releasing a new standardon whistleblower protection and notlong after the US Sarbanes-Oxleygovernance rules, which requireconfidential hotlines to be madeavailable to company personnel, cameinto force.

Mechanisms for dobbing in atNAB range from reporting concerns toa senior manager to using a confiden-tial hotline and email service.

The bank’s policy has sent a “veryclear message,” although NAB haslong encouraged people who havecome forward, a spokeswoman says.

She would not comment on thespecifics of the unauthorised tradingscandal.

The bank has previously used anumber of mechanisms for dealingwith a range of disclosures andwhistleblowing protection, but theAugust policy has strengthened thatframework, she says.

NAB corporate affairs directorRobert Hadler says the bank has beenworking on a culture of openness for a“long period” and believed it hadcontributed to the actions of the personwho revealed the trades.

But while a whistleblower mighthave exposed the problems at NAB,there are a profusion of forcesconspiring against employees whowant to dob in rogue colleagues.Experts warn that whistleblowing lawsare fragmented and cosmetic, are notenforced aggressively enough and untilrecently have failed to deal withinformants. They simply do not stopsome whistleblowers from beingmarginalised.

Western Australia’s former toppoliceman and now chairman ofSTOPline, Bob Falconer, says laws donot provide adequate protection to stopstaff from being discriminated againstfor blowing the whistle. But that isonly part of the problem.

He says whistleblowers can bevictims of “psychological warfare.”Retaliation may be anonymous anduntraceable, and includes “beingfrozen out of the office subculture.”

PAGE 4 THE WHISTLE, #37, APRIL 2004

Falconer always urges whistle-blowers to keep their identities secret.He believes anonymity is the surestway to protect and encourage whistle-blowers.

Falconer, who has spent 40 yearscombating misconduct, cautions them:“Do not come out for your 15 minutesof fame because you’ll pay for the restof your career.”

Victoria has the most sweepinglegislation, which protects whistle-blowers in the public sector.

In NSW, there are laws to protectemployees of public bodies, but theydo not enable whistleblowers to stayanonymous. In Queensland there arelaws for staff in public entities, whichallow anonymity.

Legal sources say the federalgovernment’s Corporate LawEconomic Reform Program (AuditReform and Corporate Disclosure) Bill2003 will give some protection towhistleblowers who have exposedcompany breaches of the CorporationsAct.

But they will not pick up on allwhistleblowing.

Kim Sawyer, from the Universityof Melbourne’s department of finance,says whistleblowing laws have onecommon trait — they fail to lead toany prosecutions for victimisingwhistleblowers.

Experts agree that encouragingwhistleblowing needs to be part of thecorporate culture.

Westpac runs a “Concern Online”for employees to report misbehaviour,a spokeswoman says.

The national president of Whistle-blowers Australia, Jean Lennane,agrees that even when CLERP 9 isintroduced, it will not encouragewhistleblowing.

“The reality of whistleblowing isthat the retaliation that occurs in acorrupt organisation is so rapid that thewhistleblower is out on the street, losttheir job, has no money and so on,within 24 hours,” Lennane says.

“And to expect as [CLERP 9] doesand as most whistleblowing legislationdoes, that the whistleblower can thenpick themselves up, find money, find alawyer and launch some sort of legalproceedings is pretty fanciful.”

House of Reps inquiryinto destroyed docs

Susann KovacsQueensland Independent,

November 2003

THE House of Representativesinquiry into Crime in the Communitywill take evidence about Queensland’sdocument shredding scandal, theHeiner Affair, at the CommonwealthGovernment Centre in Brisbane thismonth.

Witnesses will take part in publichearings to be held by the House ofRepresentatives Standing Committeeon Legal and Constitutional Affairs.

University of Queensland journalistin residence Bruce Grundy,Queensland University of Technologysenior lecturer in law AlastairMacAdam, and prominent Heinerauthority Kevin Lindeberg will giveevidence.

The origin of the shredding scandalcentres on a decision by State Cabinetin 1990 to destroy all documentsgathered by retired magistrate NoelHeiner’s short-lived investigation intoa state-run youth detention centre.

Mr Lindeberg said he was notsurprised the Heiner affair was againthe subject of investigation.

“There is no doubt that the Heineraffair is a scandal of real nationalsignificance to the rule of law,governance and child protection, and itis quite understandable why MrsBishop and her committee membersare prepared to devote their time andresources to take evidence on it,” MrLindeberg said.

Mr MacAdam said he would beattending the hearing in his capacity asan academic lawyer. He hoped toillustrate for the committee the defenceused to justify inaction over the matterby the former Criminal JusticeCommission (CJC), a former Directorof Public Prosecutions (DPP) and thepolice had no credible basis in law.

Material destroyed when theHeiner Inquiry was aborted includedevidence of the rape and torture ofchildren in the care of the state.

It has since been revealed theCabinet of the day was aware thedocuments approved for destructionwere being sought by a firm of solici-tors for legal action.

In the 13 years since, three chair-men of the former CJC, a former DPP,a former head of the CJC complaintsdivision and a currently servingmagistrate have all defended thelegality of the shredding on thegrounds no legal action had com-menced at the time of the destruction.

A number of prominent legalacademics, including Mr MacAdamand a former Queensland Appeal Courtjudge, have rejected this view.

In March this year a man wascommitted to stand trial for destroyingthe pages of a girl’s diary that mayhave been required in evidence,although no legal proceeding wasunder way at the time and nonecommenced for a further five years.

At the committal hearing theprosecutor from the Office of the DPPtold the magistrate the offencesinvolved could be committed even ifno court action was under way at thetime material, likely to be used inevidence, was destroyed.

The hearings are at Level 36,Waterfront Place, in Eagle Street,Brisbane.

For full details seewww.eastes.net/justiceproject

[Kevin Lindeberg is the central figure inone of WBA’s whistleblower cases ofnational significance.]

Whistle-blower awardedBy Naomi Lindeberg

Queensland Independent,November 2003

QUEENSLAND’S WhistleblowerAction Group has named Julie Gilbertthe Queensland WhistleblowerSupporter of the Year.

Ms Gilbert was acknowledged forher exposure of Director of PublicProsecution (DPP) processes aftercharges against her former swimmingcoach, Scott Volkers, were dropped.

The mother of four, who is nearingthe completion of a Bachelor of HealthSciences, in addition to being aqualified high school teacher, said sheknew about the WhistleblowersAssociation, but was not aware it gaveawards.

“I was very surprised. it’s a nicerecognition,” Ms Gilbert said.

THE WHISTLE, #37, APRIL 2004 PAGE 5

Whistleblowers Australia nationaldirector Greg McMahon said the groupwas impressed by the courage MsGilbert had shown.

“Our focus is on the degree ofassistance that that person is to the lotof whistleblowers,” he said.

“In Julie’s case she has broughtpublic attention to the malpracticesthat appear to be occurring within theoffice of the Director of PublicProsecutions.”

The DPP has re-opened theinvestigation into Mr Volkers allegedindecent dealings with three girls agedunder 16 during the 1980s.

Police are believed to be preparinga fresh brief of evidence in the case.

“It is with the DPP — the sameone,” Ms Gilbert said.

“They’re finishing off the investi-gation in consultation with the police,with the view of hopefully sending itdown south and to charge him again.”

Ms Gilbert said she was surprisedshe had the courage to make thecomplaint.

“When I first made the statement tothe police, I couldn’t believe that I hadactually done it,” she said.

“I am surprised that I can talkabout it now.

“I thought I would tell the truth andeverything would go smoothly and inmy naive little world, I thought itwould.

“I started to realise that this thing isbigger than you and you have to fightvery hard.

“When it’s all over, it will changemy life — there’s no two ways aboutthat ... mainly because I’ve had toconfront something that I have blockedout for many, many years.

Mr McMahon said he believedwhistleblowers suffered considerablybecause of a lack of integrity in theprocesses of the DPP’s office.

“Whereas we have not been able tobring much attention to that situation,Julie Gilbert has,” he said.

“Hence, when a whistleblowerraises issues about the practices withinthe office of the DPP, we are likely tobe believed because of what Julie hasbeen able to demonstrate.”

Awards recognising the efforts ofQueensland whistleblowers have beenawarded since 1993, with the Univer-sity of Queensland’s journalist-in-residence Bruce Grundy the only other

recipient of Supporter of the Year, in1996.

Whistleblower nurseslams Premier

by John KidmanSun-Herald (Sydney), 8 February

2004, p. 27

Her colleagues have christened herErin Brockovich after the legal rightsactivist made famous by Hollywoodand now Bob Carr knows why.

Whistleblower nurse Nola Fraserhas written a scathing eight-page letterto the Premier, demanding a privatemeeting and a royal commission intothe NSW health system.

Ms Fraser described the Govern-ment’s response to the hospitals crisisas “inadequate and ineffective.”

“NSW has never had so manyadministrators, independent boards,independent commissions and inde-pendent investigative bodies and yetthe health system has never been sopurulent and terminally diseased,” shewrote. “You have taken a good,competent health system, which I wasproud to be part of, and in just sevenyears managed to turn it into some-thing that horror movies are made of.”

Ms Fraser described in graphicdetail the death of three patients atCampbelltown Hospital. She providesa first-hand account of the treatmentthe women received, the subject ofdamning investigations by the NSWHealth Care Complaints Commission(HCCC).

The HCCC last year determinedthat 19 patients at Campbelltown andCamden hospitals died between 1999and 2003 after receiving inadequate orunsafe care.

The watchdog’s findings have sofar sparked four public inquiries, set upto examine evidence of hospitalnegligence and impropriety linked tothe way in which health-care com-plaints have been managed and dealtwith.

Ms Fraser, however, put to thePremier that nothing short of a royalcommission would get to the bottom“of this sorry mess.”

Initial investigations by NSWHealth were covered up, she alleged.The HCCC has proved that it is

“incompetent and not independent”and concerned mostly with “coveringthe Government’s backside.”

Furthermore, the IndependentCommission Against Corruptioninitially chose not to investigatecomplaints raised 15 months ago andwas only interested in watering themdown, she said.

And the Government’s specialcommission of inquiry, headed by BretWalker, SC, was looking only at issuesrelating to Campbelltown and Camdenwithout scrutinising hospital practicesin Sydney’s greater south-west.

“Why, in fact, are there at least fiveseparate inquiries into the allegationsall running at the same time?” MsFraser asked. “One could be forgivenfor thinking that it is a deliberateattempt to do little at all and to take aslong as possible to do it.”

Ms Fraser demanded a meetingwith Mr Carr and Health MinisterMorris Iemma to discuss “the contin-ued criminal and corrupt practicesendemic within the health system.”

A spokesman for Mr Carr told TheSun-Herald yesterday the Premierwould be willing to meet the nursesfollowing the Walker and ICACinquiries but that it was not appropriatefor him to do so beforehand.

Trivial reprimand dullslearning’s light

The University of NSW has let its bigfish survive while whistleblowers

perish, argues John CarmodyAustralian, 29 December 2003, p. 11

Since Tuesday’s catastrophic an-nouncement by the University of NSWVice-Chancellor, Professor RoryHume, of his trivial reprimand ofProfessor Bruce Hall on charges ofscientific fraud, I have had numerousvisits and phone calls to my office andhome from colleagues who werealmost in tears of desperation or fury.In one case, I was seriously concernedabout a possible recurrence of aprevious heart attack, so intense wasmy colleague’s distress.

These academics all had the sameworry. There is nothing more impor-tant to the life and work of universitiesthan truth. They are also, as Disraelisaid, places of light, of liberty and of

PAGE 6 THE WHISTLE, #37, APRIL 2004

learning but all of these must rest on afoundation of truth, or everything elseis futile. That, inevitably, is why inApril last year (after ABC radio’sScience Show and The Australianbroke the story) the UNSW GoverningCouncil was so disturbed by thoseallegations of scientific dishonesty,financial fraud and bullying by Hall.

Hall, a transplant immunologist inthe School of Medicine at the Liver-pool Hospital, had been accused bytwo fellow researchers and a doctoralstudent of misconduct that could beseen as scientific fraud. The complain-ants claimed Hall had fabricatedresults of transplant-rejection experi-ments with rats, manipulated theauthorship of scientific papers andfalsely claimed in a grant applicationthat an experiment had occurred.Against the wishes of the seniorexecutive of the university, theGoverning Council resolved immedi-ately to set up an independent externalenquiry, “to find the deep truth” as onemember put it at the time.

That group, including threeextraordinarily eminent medicalscientists and led by the former HighCourt chief justice Gerard Brennan,delivered a damning report early thisyear and almost immediately Hallobtained a temporary suppressionorder in the Supreme Court. In August,however, his case was dismissed in itsentirety and he was required to pay theuniversity’s costs.

Hall remained aggressive andadamant in his defence, telling theABC’s Four Corners in October thathe took that legal action essentially toprotect the independent investigatorsfrom their folly and ignorance.Meanwhile, Hume has persistentlyargued — to the intense frustration anddismay of academics inside UNSWand beyond — that the university’senterprise agreement required that theBrennan report be suppressed until allpotential disciplinary processes wereexhausted. That argument — if,indeed, it ever had any validity — isnow utterly spent and it is clear (this isalso the view of the Brennan group, Ibelieve) that public interest, not tomention the confidence of the taxpay-ing public in UNSW and Australianmedical science more generally,requires that the report be publishedpromptly. In the meantime, what

further can be said about that perplex-ing decision by Hume? He decided thatHall would receive nothing more thana censure, finding him guilty of onlyminor misconduct, meaning he willescape harsh punishment such asdismissal or demotion. The remainingquestions include the incongruence ofHume’s view of the seriousness of thecharges against Hall with that of hiscolleagues, not to mention the court ofpublic opinion.

What of the damage which he maydo to the standing of UNSW, not leastwith the numerous funding bodieswhich so crucially support the univer-sity’s research? What of the dismayingaffront given to the distinguished andhonourable members of the Brennancommittee? They include the professorof medicine at Oxford, ProfessorDavid Weatherall, a former presidentof the Royal Australasian College ofPhysicians, Professor John Chalmers,and the current director of the JohnCurtin School of Medical Research atthe Australian National University,Professor Judith Whitworth. Theirnames are on the public record, yetalthough Hume has canvassed andrelied on several other advisers, he hasstoutly refused to name them and thuscall them to account. There lies anenormous irony. For all of his concernfor punctilious procedure — and theglacial pace at which it progressed —the procedure adopted by the vice-chancellor in this case is indefensible.He has essentially set aside the multi-volume Brennan document with itsmasses of transcripts of evidence andits several findings that Hall hadbehaved with “reckless disregard forthe truth” and “seriously deviated”from “commonly accepted” scientificpractices. It is most unusual for anappellate court to so discount thefactual findings of earlier proceedingswith their direct experience of thewitnesses. Perhaps worse, in engagingthe opinions of those anonymousothers he has really permitted theintroduction of new evidence fromwhich the “whistleblowers” wereexcluded and therefore had no oppor-tunity to refute. What, too, of thosewhistleblowers? So far, this case hasall of the hallmarks — despite the bestintentions of the Protected DisclosuresAct (NSW) — of the usual melancholystory: helped by their peers, the big

fish survive while the whistleblowersperish. UNSW has, from the first,resisted granting them protecteddisclosure [status]. It has dragged itsfeet in conducting what was a legallymandated but patently unsatisfactoryinvestigation by the dean of medicine,Professor Bruce Dowton. It respondedto the initial public revelations with aderisory and unsupportable rebuttal, bythe Deputy Vice-Chancellor, ProfessorJohn Ingleson, and left a PhD studentstill, more than two years later, withouta replacement supervisor for Hall. Thatlist highlights further risks to a univer-sity whose reputation, many feel, isalready becalmed (at best). There willbe an understandable disincentivewhich this story offers to undergradu-ate and postgraduate students who areconsidering joining the UNSWcommunity.

So the senior executives of UNSWand Hall may currently feel or hopethat they have won a victory but thepress response to the vice-chancellor’sunconvincing announcement and thegathering storm clouds may yet showthat this “victory” is Pyrrhic.

Dr John Carmody, a member of theUNSW Faculty of Medicine, has forseven years been a member of univer-sity’s Governing Council, elected by hisacademic colleagues.

Make blowing the whistlean honour

Whistleblowers should not be pariahs,write

Thomas Faunce and Steven BolsinThe Australian,

19 December 2003, p. 11

The NSW Health Care ComplaintsCommission’s inquiry into medicalservices at Campbelltown and Camdenhospitals provides yet another exampleof an unfortunate paradigm. Fiveformer nurses — Nola Fraser, ShereeMartin, Yvonne Quinn, Valerie Owenand Vanessa Bragg — spent 13months challenging the inadequatestandard of medical care at thoseinstitutions in every level of thehealthcare bureaucracy.

Following the overseas experiencesat the Bristol Royal Infirmary andWinnipeg Hospital, the whistleblowers

THE WHISTLE, #37, APRIL 2004 PAGE 7

were eventually vindicated. Numerouspatients’ deaths and injuries wereproven to have resulted from errors ofmedical judgment and complacency.The healthcare system eventuallyresponded vigorously.

Meanwhile, those courageousindividuals have suffered victimisa-tion, bullying and loss of employment.None of the nurses who voicedconcerns about clinical competence atCampbelltown and Camden hospitalsis still employed in healthcare.

The recent enactment in manyjurisdictions of equivalent legislationto the Public Interest Disclosure Act1999 (UK) confirms a trend by law-makers and the public to supportwhistleblowers against unjust reprisals.Yet it seems a healthcare whistle-blower is presumed by many in power-ful regulatory positions, despitecontrary public protestations, to bedisaffected, antisocial, presumptivelyincompetent and an institutionalpariah. In short, not a team player.

Three categories of institutionalresponse have been shown to typicallyfollow an instance of external whistle-blowing. Rarely is it procedurallycorrect. Indeed, the reaction isinvisible obfuscation or silent inaction.

Frequently, however, the institu-tion’s response is hostile and involvesinappropriate strategies such asimmediate notification of thecomplainant to the alleged offender,diversion of blame, psychiatric andcompetence pillorying and destructionof evidence. Veiled reprisals mayinclude formal reprimand, closermonitoring by supervisors, socialexclusion, public humiliation, jobtransfer or gradual demotion andwithdrawal of resources.

Whistleblowers may be overlookedfor promotion or whispered aboutnegatively in corridors and tearooms.Few colleagues are willing to supporttheir allegations in public, even whenthey know themselves to possesssupporting evidence. Unemployment,bankruptcy, litigation, divorce, mentalillness and suicide are commonoutcomes of the act of whistleblowing.

The Senate Select Committee onPublic Interest Whistleblowingconcluded that whistleblowing is alegitimate form of civil action within ademocracy. Contrary to popularinstitutional stereotype, the common

pattern, disclosed by research, is thatwhistleblowers typically reportthrough standard internal channels inthe first instance. They expect theirinstitution to support their attempt toexpose the misconduct and quicklyresolve the problem.

Extra-institutional appeal mecha-nisms, both formal and informal, areresorted to only once the whistle-blower has reached the conclusion thatthe organisation is amoral, its seniormanagement torpid or complicit, orthat he or she has ethical expectationsfor the quality of service provision thatare higher than those of its leaders.

Health professionals with an activeconscience should be regarded as avaluable resource in our public hospi-tals. Yet medical academe and theprofessions appear not to be doingenough to train, encourage and supportindividuals with such importantpersonal characteristics.

Presidents of the Royal College ofSurgeons and the Royal College ofAnaesthetists in the UK, for example,both knew about the problems at theBristol Royal Infirmary but lackedsufficient will and conscience to set apositive example and prevent theunnecessary deaths of childrenundergoing cardiac surgery. Similarly,in the Harold Shipman scandal,colleagues of the mass-murderinggeneral practitioner raised concernswith the local health authority but werefalsely reassured.

Likewise, concerned and coura-geous doctors and nurses had toovercome many institutional obstaclesto blow the whistle on an incompetentpediatric cardiac surgery service inWinnipeg, Canada.

A variety of personal, bureaucraticand historical factors may contribute tothe healthcare system’s highly criticalresponse to whistleblowers, and to itslack of prompt and adequate internalinstitutional investigations and resolu-tions of their concerns. In the interestsof public safety, these factors need tobe identified, researched andtransformed. Transparency, honesty,objectivity and diligence in theprocessing of allegations of healthcareincompetence should be regarded as asign of an institution’s regulatorymaturity.

Most important, however, thepublic should recognise that healthcare

will always need whistleblowers.Indeed, a strong case can be made thatwhistleblowers should be encouraged,cherished and protected, and thatwhistleblowing ought to be taught inour medical and nursing schools. It’stime for it to be respected throughoutthe healthcare system.

Thomas Faunce is senior lecturer atthe Australian National University’smedical school. Steven Bolsin isdirector of peri-operative care atGeelong Hospital.

The conscience clause:keeping the independent

scientist extant

Henri-Philippe Sambucand Frédéric Piguet

The Scientist, Volume 17, Issue 19,6 October 2003, p. 8

The few scientists who have had thecourage to oppose their employers’silence regarding the harmful effects ofproducts related, for instance, to food,public health, or the environment, havegenerally seen their lives destroyed.Defamation campaigns, threats, legalactions, and various pressures havemade their careers, family lives, andhealth miserable.

Science is a complex intellectualexercise based, most notably, onindividual freedom and free will. Onlyother scientists can assess the intellec-tual findings of their limited group ofpeers who are capable of understand-ing a given issue. Thus, scientistsrepresent a special, tight-knitcommunity within society, a self-appointed group whose work is scruti-nized by peers and made public byrecognized scientific publishers. Themodern legacy of science and itslegitimacy is mainly the result of thefollowing basic premise: Scientists areresponsible people because they areindependent and what they say is true.

However, stories about fraud inscientific research or the theft ofcolleagues’ or students’ data are notuncommon. Moreover, professors whoserve private interests are beingappointed to public committees, and itis not unusual to see political pressure

PAGE 8 THE WHISTLE, #37, APRIL 2004

being brought to bear on scientificinstitutions. Differences in opinionamong scientists about the ethics andvalues at stake in evaluating varioustechnological risks fuel scientificcontroversies despite the fact that fewscientists are prepared to deal withthese issues and thus offer an inde-pendent perspective. Finally, there isthe issue of some products on themarket misusing scientific discoveries,putting public health and the environ-ment at risk and misleading the publicabout the relevance of certain politicalissues.

Often, scientists who are mostrespectful of ethical issues becomediscouraged and leave the profession.Those who remain usually do notcontrol the intellectual rights to theirdiscoveries and their employee statusprevents them from saying “no.”Scientists who prefer to follow theirconscience are sometimes forced to actcontrary to the interests of theiremployers; as a result, they step into anightmare that can transform, andoften destroy, the rest of their lives.Can one accept that those scientistswho seek to remain free and independ-ent be treated as criminals? How canone re-create an environment forscience and scientists that offersenough space for independence and theability to follow one’s conscience?

Scientists are not ordinary whistle-blowers. The sophistication and thesocial impact of their efforts mean thatspecific tools must be created toprotect them when they express theirdoubts about misleading scientificinformation. Civil society and thescientific community must fight toestablish the special legal status neces-sitated by the vital role scientists’independence plays in scientificresearch and application. Scientistswho have the courage and determina-tion to exercise their responsibility toscience itself and to society as a wholehave an undisputed right to be praised,cherished, and thanked. The public canrely only on scientists and engineerswho exercise their freedom of speechand who can understand and integratesociety’s values into their assessmentof technological risks.

The Fondation Science etConscience and the Association for thePromotion of Scientific AccountableBehaviour, both of which are located

in Geneva, are promoting, as a partialanswer to this worrisome situation, aninternational convention on protectinga scientist’s right to say “no” whenproducts are sold in the marketplace,despite potential risks for publichealth, food, and the environment.

The Conscience Clause Convention(www.apsab.span.ch/clc/) aims to re-establish a certain equilibrium betweena specific group of employees (scien-tists and engineers) and public orprivate employers through an appro-priately defined set of controls.

Society needs to restore thefreedom of the individuals whoseintellectual creativity, knowledge, andethical awareness shape our future.This mission faces two challenges: tomake the public understand that theindependence of this small group is theonly way to protect itself, and toconvince individualistic scientists to beinvolved more collectively in socialissues. Scientific groups and interna-tional organizations, such asUNESCO, which is involved inscientific issues, and the InternationalLabour Organization, which promotesworkers’ rights, should join forces andsupport these efforts.

Henri-Philippe Sambuc is President ofthe Fondation Science et Conscience,and Frédéric Piguet is the ExecutiveSecretary for the Association for thePromotion of Scientific AccountableBehaviour.

CONSCIENCE CLAUSE FORSCIENTISTS AND ENGINEERS

DefinitionThe conscience clause entitles anyscientist or engineer employed by anyprivate or public organization(hereafter known as the “organiza-tion”) and having duties or responsi-bilities in the field of science ortechnology to report to an independentbody in the country in which theorganization’s headquarters or theheadquarters of its parent company arelocated any and all activities under-taken in ongoing and deliberate breachof:The precautionary principlePublic healthThe environmentEthical and professional codes regard-ing scientific research and technologi-cal production

ConfidentialityThe independent body shall guaranteethat the information provided and theinformant’s identity remain confiden-tial.

Protection of the informantInformants shall be provided withjudicial compensation by the Organi-zation or administrative compensationby the State for any harm they mayhave suffered as a result of informationgiven when such information actuallyconstitutes a violation of the pointsmentioned above.

ProsecutionThe enterprise at fault shall be heldliable if the case presented by theinformant is well-founded. Similarly,any member entity of the Organizationcognizant of these ongoing and graveacts shall be liable to prosecutionindividually.

Non-governmental organizationsNon-governmental organizationsspecializing in these matters ordefending parties that act in accor-dance with their conscience are enti-tled to lodge a complaint in civil orcriminal court.

Immunity from prosecutionThe informant’s anonymity shall beassured, and s/he shall not be heldlegally or civilly liable when theaccusation was made on justifiablegrounds.

Whistleblowers must besafe to make music

James RoseCanberra Times, 17 February 2004

In 2000, actor Russell Crowe wasnominated for his performance as acorporate whistleblower, in the movieThe Insider. His performance was areal-life dramatisation of the tortuousroad taken by an individual who isdriven by his convictions to exposeBig Tobacco in the US over healthissues.

While Crowe received all theplaudits, a supporting role by AlPacino, who played TV journalist

THE WHISTLE, #37, APRIL 2004 PAGE 9

Lowell Bergman, may have said moreabout the obstacles whistleblowersface in the modern world. His fightwith TV producers and the networkowners as he fought to publicise thecase, underlined the damage such anexposé can cause and the blockagesthat exist within business culture. TheBig Tobacco companies might havebeen expected to try to block thescandal, but the TV stations weredriven not by direct interest, but by thethreats to the very business culture inwhich they operated: the matrix oftheir over-lapping business interests.Pacino’s [Bergman’s] fight was withthe mind-set of Big Business as muchas with his employers.

In Australia, the National AustraliaBank’s currency-trading scandal hasspotlighted similar weaknesses in ourown business culture. Despite the off-the-record dealings going on forapparently some months, it was onlywhen an employee on the bank’sMelbourne trading desk blew thewhistle on the shady dealings that thebank acted. CEO Frank Ciccuttorightly resigned. However, thequestion remains: What would havehappened if the whistleblower had keptthe whistle in the drawer? The bankitself says that its systems would havepicked up the problems, but the fact isthat they did not. A related question is,therefore: How often does a companyact immorally or even illegally, and isallowed to get away with it becauseno-one is there to blow the whistle?

Whistleblowers are not encouragedin Australia. There is no federal law.None of the state Acts have resulted inany convictions over the vilification ora failure to protect whistle-blowers,despite the fact that many have losttheir jobs or been ostracised and evenabused. Most legal professionals don’thave confidence in the legislation topursue convictions.

This compares poorly with othercountries, such as the US and Britain.The US probably has the mostadvanced legislation, having beenbolstered by the Sarbanes-Oxley Actof 2002, which focused on a range ofcorporate-governance issues. There,the discovery of business scandalssuch as the Enron and WorldComcrashes, which inspired Sarbanes-Oxley, are indebted to inside whistle-blowers. As a sign of the value of

whistleblowing, in 2000 [2002] Timemagazine named the whistleblowers atEnron, WorldCom and the FBI as itsPersons of the Year.

Here, however, things are different.During the HIH Royal commission, itwas revealed that a company employeeactually informed the industryregulator, the Australian PrudentialRegulatory Authority, of improprietiesat the company, but was ignored.

The inability of Australian regula-tors, governments and the businesssector to fully sanction good internaldisclosure mechanisms is not withoutcost. Fraud across all these areas is amassive drain on our economy. No realfigures exist for the total costs offraudulent behaviour, but Kim Sawyer,from the University of Melbourne,recently wrote that it is as high as $20billion annually.

While legislation may be import-ant, it is more likely that corporateculture in this country is the biggestroadblock for whistleblowers. Therelative smallness of the corporatesector, and the limited gene pool fromwhich senior managers and companydirectors are drawn, undermines thepossibility of a more open and pro-gressive corporate culture.

Further down the ladder, rank-and-file employees are feeling the pres-sures of a more aggressive and time-stressed workplace, and are in fear oflosing their jobs, or their place in theworkplace hierarchy, in the pursuit of apotentially lost cause.

At a more basic level, the label of“dobber” is one which carries a par-ticular stigma in Australia, wheremateship is such a prevalent, ifmisunderstood, value.

The pressures to conform in thesmall world of the Australian corporatesector may indeed be a bigger problemthan the paucity of good legislation.Big Business is a tightly controlledclub of mostly male, privatelyschooled, managerial Brahmins. Thistiny group is most influential in settingthe parameters of corporate culture inthis country.

It should be remembered that asmore non-profit groups and gov-ernment bodies become corporatised,the ability of this small band ofcorporate cloud-dwellers to have animpact on cultural development in allorganisations is enhanced.

Until corporate culture can takesome deep breaths and look at itselfmore truthfully, the incidences ofNAB, not to mention Ansett, HIH oreven Enron, proportions will be on therise. The space for whistleblowers tomake their music needs to be madesafe and secure, and out in the open.That’s as much about ourselves andour culture as about legislation.

James Rose is founder and executivedirector of corporate ethics andgovernance consultants IntegrativeStrategies.

Bribery and internationalmutual legal assistanceA hypothetical concrete case for

training: case study for discussion inWorkshop 3B

By Bernard BertossaFormer Prosecutor General

Geneva, Switzerland(ADB/OECD Anti-Corruption Initia-

tive for Asia-Pacific4th regional anti-corruption conference

for Asia and the Pacific, 2003)

In 1995, the Ministry for EconomicAffairs of Briberyland decided toreplace entirely its obsolete informa-tion technology equipment. Afterreceiving bids from a number offoreign companies, the Ministry’sadministrator awarded the contract tothe American firm Smith Corp for anamount of US$75 million. The newinformation technology environmentwas installed in March 1996, and theMinistry paid Smith Corp the agreedamount.

In April 1996, the public prosecu-tor of Briberyland received a letterfrom the Indian company Delhi Corp,which had also bid for the contract.Delhi Corp informed the publicprosecutor that Smith Corp had beenawarded the contract because it hadpaid commissions. It gave the name of“John”, an employee in the Ministry,as the person who had received thesepayments.

The public prosecutor initiated aninvestigation of John, which showedthat he enjoyed a lifestyle above whathis government salary could possiblyprovide. However, there were nosuspicious funds in the only bank

PAGE 10 THE WHISTLE, #37, APRIL 2004

account that John held in Briberyland.But during a search of John’s house,the police did discover the businesscard of a representative of the BSABank in Zurich, Switzerland.

After sending letters rogatory[making a request through a foreigncourt to obtain information] to theSwiss authorities, the public prosecutorlearned that John did not, in fact, havean account at the bank. However, hisname did appear as having signatoryauthority over an account opened by aregistered company, Fraud Ltd, head-quartered in Nassau, Bahamas, withthe BSA’s subsidiary in Geneva,Switzerland. The beneficial owner ofthis account was an individual knownas “Pablo”, an independent foreignexchange broker operating in Bribery-land. This account had been opened inJanuary 1996. In March of that year, ithad been credited with a sum ofUS$7.5 million from a New York lawfirm. A few days later, US$4 millionhad been transferred to a bank inLondon and US$3 million to a bank inLuxembourg.

Informed of these facts, the publicprosecutor of Briberyland sent lettersrogatory to London and Luxembourg.The replies to these letters brought tolight the following:

• The recipient account in Londonbelonged to Oxy Inc, headquartered inthe British Virgin Islands. Pablo wasthe beneficial owner of this account.Since the account had been opened in1990, large cash amounts, from differ-ent origins, had been deposited andhad later been transferred abroad. Theaccount currently contained US$10million.

• The recipient account in Luxem-bourg had been opened in the name ofJohn’s wife. A sum of US$3 millionhad been the only deposit made to thisaccount. This sum had not yet beentouched.

The public prosecutor of Bribery-land decided to question Pablo, whoadmitted that accounts had beenopened in Geneva and London andsaid that he had made these accountsavailable to some of his customers inBriberyland to enable them to avoiddomestic taxes.

The public prosecutor then askedJohn and his wife to come in forquestioning. However, the prosecutorthen received news that the Justice

Ministry had promoted him to theposition of chief judge in another city,effective immediately. A colleagueknown to be close to those in power,and to have no interest in prosecutingbribery-related offences, replaced theprosecutor. In fact, the new publicprosecutor closed the case withoutfurther investigation.

Before leaving his post, the formerpublic prosecutor of Briberyland hadcontacted his Swiss, British andLuxembourg colleagues with whom hehad dealt regarding the letters rogatoryconnected with his investigation, inorder to inform them of the situation.

In the meantime, John and Pablohad hired lawyers in Geneva, Londonand Luxembourg. Arguing that thecase had been closed in Briberyland,the lawyers contacted the banks torequest that the balance of the accountsbe transferred to two separate accountsopened in two different banks inSingapore. Before making the trans-fers, BSA Bank in Geneva contactedthe local prosecutor, who decided toinitiate his own criminal proceedingsfor the crime of money laundering.

The prosecutor of Geneva orderedthe seizure of the account of Fraud Ltdin the BSA’s Geneva branch. He thensent mutual assistance requests toauthorities in London and Luxem-bourg, in which he asked that theaccounts of Oxy Inc and of John’s wifebe frozen, and that all documentationconcerning these accounts be handedover to him. He also sent lettersrogatory to Briberyland in order toobtain a copy of the closed investiga-tion file.

The authorities in London andLuxembourg met these requests, butthe new public prosecutor of Bribery-land took no action whatsoeverregarding the case.

After analysing the bankdocuments received from London, theprosecutor of Geneva observed that asignificant portion of the amountstransferred from the account of OxyInc had been transferred to an accountwith the Fritz Bank in Vaduz,Liechtenstein. After sending lettersrogatory, it came to light that thisaccount had been opened in the nameof a private company, Briby SA,headquartered in Cyprus. Thedocuments completed when theaccount was opened had been signed

by a lawyer in Vaduz and by theadministrator from the Ministry forEconomic Affairs of Briberyland.

The prosecutor of Geneva againsent letters rogatory to Briberyland,confirming his initial request,explaining what had been discoveredin Vaduz and asking to question theadministrator. The new publicprosecutor of Briberyland merelyreplied that the account of Briby SAhad been opened at the request of thestate and that the funds belonged toBriberyland. The prosecutor of Genevawas asked to stop investigating thesefunds.

Through unknown sources, thepress of Briberyland had beeninformed of the Swiss request. Articleswere published that raised questionsabout the decision to stop the criminalproceedings initiated in Briberyland.

Training question: W h a tfurther steps do you think might betaken in this hypothetical case ineach of the countries concerned bythe events described above?

THE WHISTLE, #37, APRIL 2004 PAGE 11

Articles

WBA meets the press

Derek Maitland

Monday February 9 was a very proudmoment for me. I sat at one end of atable in the Media Room of the NSWLegislative Council, alongsideWhistleblowers President JeanLennane, Education Officer PeterBowden, with National SecretaryCynthia Kardell in the audience beforeus, as Lee Rhiannon, the NSW GreensMP, introduced us as “courageouspeople” fighting for justice and reform.

That was the moment that launchedour first formal WhistleblowersAustralia press conference, called todemand a searching public judicialinquiry into the administration of theUniversity of New South Wales,basing the call on the finding of anindependent public inquiry.

It also introduced us to the preju-dices, idiosyncracies and imperativesof a culture that none of us, even me asa longstanding journalist, had everreally looked into closely: the media.And what we learned will be ofpressing relevance to us all in ourefforts to raise the profile, status andeffectiveness of WBA in the future.

I’ve been a journalist for a goodtwo-thirds of my life, here andoverseas, and while I’ve covered anddigested more press conferences thanproverbial baked dinners this wasactually the first time I’d ever orga-nized one myself. I was lucky, rightfrom the start, in taking up CynthiaKardell’s advice that we approach LeeRhiannon as a partner in the project,the Greens MP having served on theUNSW Council.

When she readily agreed, it gave usState Parliament as a dignified andprestigious venue for the meeting,immediate access to the parliamentarypress lobby – meaning we didn’t haveto chase and canvass journalistsindividually – and it brought us underthe very professional wing of LeeRhiannon’s media officer, CateFaehrmann. What Cate taught us wasthat to get effective media attentionand coverage for your issue or cause,you have to observe the media’s rules.

And the first rule is: don’t darepresume that the ethics and urgency ofthe issue you’re trying to publiciseautomatically qualifies it for seriousmedia attention.

Cate made it clear right from thestart that this was something of acompetition, a battle for the attentionof people who tend to get old quiteyoung, who, like police in somerespects, can’t avoid the numbness andcreeping cynicism that comes fromconstant raw exposure to the demands,the pains, the cruelties, injustices andconnivances of life.

“You haven’t got much leeway inattention span,” Cate warned me as Ibegan shaping the conference.“They’re cynical. If you can’t attracttheir interest fast, and get yourmessage across to them quickly andsimply, they’ll turn their backs onyou.”

I’d wanted to use the press confer-ence not just to call for an independentinquiry into the UNSW but also toformally introduce the NSW office-bearers of Whistleblowers Australia tothe press. So I envisaged a galleryformat of Lee Rhiannon, Jean, Peter,Cynthia and me, with Lee introducingthe issue and each of us handling adifferent aspect of the need for aninquiry into the university and detailsof two of the six key whistleblowercases that had prompted our call –Margaret Love’s ordeal againstrampant nepotism and reprisal at theUNSW’s Educational Testing Centre,and the continuing drama of whistle-blower complaints of fraud andmisconduct against Professor BruceHall in the Department of Immunol-ogy. I figured we’d each speak for amaximum five minutes.

Cate’s advice on this: “Too manypeople. And too much talk. You’ll loseyour audience. Cut down the numberof speakers, and the amount each onehas to say. “

But why should we have consid-ered a press conference in the firstplace? Why not simply target reasona-bly friendly, sympathetic individuals inthe media and feed them the materialand our call for an inquiry?

This worked very well last yearwhen, with the help of Christina

Schwerin in Melbourne, I managed toget a prominent feature writer from theHera ld -Sun to take a look at theconflicting information we had on thecontroversial Gary Lee-Rogers case.You may recall that Lee-Rogers, afederal cop with the Australian Protec-tive Services (now merged with theFederal Police) contacted Whistle-blowers Australia to say he was in fearof his life over his attempts to exposecorruption and fraud in the APS. A fewweeks later, he was found dead in hisbed-sitter, having been beaten up a fewdays before.

The Herald-Sun writer did usproud – a blazing three-page splashunder the heading “Did this man knowtoo much?,” and the dead man’smother’s claim that her son had beenmurdered as part of a cover-up.

I later rang the reporter in questionto tell him I could guarantee acontinuing series of “good meaty”stories involving whistleblowerexposes of corruption, fraud, malad-ministration, etc. in government andprivate industry. I made it clear ourrelationship would be strictly profes-sional: I knew what a good story was,having been a journalist myself, andwould not contact him unless I hadsomething that I knew would interesthim.

He replied: “That’s fine, but sincewe ran the Lee-Rogers story, I’ve beeninundated with emails from whistle-blowers dumping their entire files andlife stories on me. What am I supposedto do with all this?”

It was embarrassing, to say theleast, and I had to explain to him thatsome whistleblowers are so trauma-tized by their experiences, and thereprisals against them, that they cansometimes swamp people with theirfiles in desperation for a hearing. But Iknew it hadn’t done our image anygood with him.

A few weeks later I rang him withanother good tip. We had a regionalairline CEO who’d blown the whistleto the federal aviation authority CASAon contaminated fuel and other safetyproblems, and was now claiming thatCASA, instead of rectifying the matter,had turned on him and literally drivenhim out of business.

PAGE 12 THE WHISTLE, #37, APRIL 2004

My Herald-Sun contact agreed itsounded like a good story. A couple ofweeks after that, I rang him again toask how it had panned out. “It’sdefinitely a good story,” he said. “But,you know, it takes a lot of time andwork to follow these things up.” Inother words, it appeared he didn’t wantstories that took more than a couple ofphone calls to put together.

I couldn’t believe it. I couldn’t helpthinking what I would have felt as ayoung reporter if someone had told methey could guarantee any number ofgood stories on corruption, fraud,maladministration, etc. Whatever theamount of investigative work they tookto cover, I would have thought all myChristmases had come at once.

It was this sobering experience,along with a couple of others (oneSydney Morning Herald writer toldClara He, one of two whistleblowerswith Chinese as a first language in theProfessor Bruce Hall affair: “I can’tunderstand a word you’re saying,” andleft the telephone interview at that) thatprompted me to try the formal pressconference format this year. If it wasgoing to be so difficult tracking downearnest, issue-minded journalists, whynot simply let the journalists come tous?

And there was another reason forthe press conference idea. I wanted tobe able to show the media that, farfrom being the malcontents, “dobbers”and trouble-makers that I suspect someof them tend to think we are, we’re infact headed by professionals — aprominent psychiatrist, a whistle-blower journalist, a lecturer in ethics,for instance — who don’t just exposeand support whistleblower actions butact as consultants in state and federalwhistleblower issues and legislation.

If “dobbers and malcontents”sounds a little dramatic, I can onlybase it on at least two surprisinglynegative potted descriptions of Whis-tleblowers Australia that have comemy way in recent weeks. In oneinstance, someone said they were“keeping a distance” from WBAbecause they’d been warned “you’re aferal organization”; and in the other, ahighly-placed newcomer to ourTuesday WBA support meetings inSydney, told us they felt the generalimpression of WBA, among profes-

sionals as much as the public at large,was that we’re “lunatic fringe.”

If that is a general impression, Ithink it’s beginning to change withevery major whistleblower story thatappears in the press. Andrew Wilkie,the Campbelltown and Camden hospi-tal exposes and even Time magazine’snaming of three US whistleblowers as“Persons of the Year,” have helpedcement and support our credentials,showing how important we are tojustice and transparency in our society.

When we finally all met at Parlia-ment House on Monday, February 9, Iwas convinced that a press conferencewould give the media the opportunityto meet with us, get to know us a little,and clearly see that, far from being therabid, dreadlocked, body-piercedfringe activists that they maybe thinkwe are, we’re serious professionalswith an uncompromising socialconscience.

Everything was prepared. Pressreleases had been sent out to the TV,radio and newspapers announcing theconference and the issue, our variousbackground speeches had been radi-cally cut back, and I’d prepared three-page briefings to be handed to thejournalists to add the essential back-ground to what we were announcing.As we gathered in a meeting room,Cate Faehrmann had one more impor-tant preparation to spring on us.

“Let’s rehearse the whole thing.Make sure we’ve got the message andthe timing right,”

Lee Rhiannon recited her shortintroduction, then Jean, Peter and Iwent through our speeches. They werestill far too long. But now we had timeto cut them by a half and still getacross what we wanted to say; and Irealized how important Cate’s insis-tence on brevity and a rehearsal hadbeen: we were being forced to focusdown, step by step, to the bare keypoints of the issue. No waffling, no fat,no chance of turning off people whoseprofessional lives are ruled entirely bydeadlines, suspicion and the clock.

“You’ll know if they haven’t beenturned off if they stay to ask ques-tions,” Cate assured us.

A few minutes later, I sat alongsideLee, Jean and Peter facing the media atlast, and I must admit that for aveteran, somewhat cynical, journalistmyself, I felt a tremendous pride in

who we were, what we represented andwhat we were striving to do. I felt evenbetter when we’d finished ourspeeches and, instead of getting up andleaving, the journalists stayed todiscuss the UNSW issue and askquestions.

It wasn’t a packed-out meeting, Imust confess. In fact, just before itstarted I was so nervous that the roomwas still empty that I had to go andhide for a moment in the toilet. It wasonly when I returned and saw thecamera being set up, and a sprinklingof journalists reading my backgroundbriefings, that I started breathingnormally again.

But it was a start. We got somecoverage on ABC radio and in TheAustralian, and in the Daily Telegraphthrough wire-service coverage fromAAP. But more importantly, we metthe media, showed them who we are,and started a dialogue.

As I write this, we’re planninganother press conference in April tocoincide with the resumption of theinquest into Gary Lee-Rogers’ death.The conference will outline ourconcern about serious discrepanciesthat have surfaced in the inquest so far,and expose a series of cases involvingpolice killings of other police andcivilians right across Australia whichwe feel need to be independentlyinvestigated.

I think we have a job ahead of us toestablish the true WBA profile clearlyin the minds of the media and thepublic, and I think the press conferenceformat, because of its face-to-facesetting, is one way we’ll achieve it.What I’ve tried to show in this accountis that it’s going to take a little care,knowledge and familiarity on our partof the idiosyncrasies, pressures andunwritten rules of the media, as CateFaehrmann so ably showed us, to makeit work.

Derek Maitland is media officer ofWhistleblowers Australia.

THE WHISTLE, #37, APRIL 2004 PAGE 13

Tony Douglas Grosserand the 40-hour siege

Catherine Crout-Habel

It remains the longest “siege” in SouthAustralian history, still the longestcriminal trial (186 sitting days) despitethe notor ious and lengthySnowton/bodies-in-the-barrel/serialmurder trial. It is also the first andprobably the only time the bombdisposal unit has been used on ahuman being.

Why?Tony Douglas Grosser is a police

whistleblower who, on 6 September1991, responded to a public plea fromthe South Australian Police Commis-sioner to report known policeinvolvement in drugs and crime.Within ten months Grosser’s profitablebusiness was destroyed, he wasbankrupt, had false fraud charges putupon him and suffered continual policeharassment including death threats.Family and friends were also victim-ised. After the second conviction forattempted murder of a police officerthe fraud charges were dropped, asthey could not be substantiated, but notbefore they were used most effectivelyas “motive” in the prosecution’s casebefore the jury.

In April 1993 Tony Grosser cameupon information that “Adelaidecoppers” were to be bombed forlocking up Bruno “the fox” Romeo ondrug charges. South Australian policeresponded to this information byunsuccessfully trying to lay bombthreat charges upon Grosser and thenby naming him as the informant wheninterviewing the known criminals hehad reported. Death threats were nowcoming from the drug mafia. Pleas forpolice protection were denied.

On 2 March 1994 the NationalCrime Authority headquarters inAdelaide, South Australia, was blownto smithereens and Geoffrey Bowen, aseconded Western Australian PoliceOfficer, was murdered. As it happened,Mr Bowen was one of the two officersresponsible for tracking down andjailing “the fox” in WA. Tony Grosserwent public and received prominentmedia coverage. This bombing andmurder have still not been solved.

A month later, on 3 May 1994,with an arrest warrant gained on falseinformation, a cavalcade of SouthAustralian police descended upon thequiet Barossa Valley town ofNuriootpa to arrest Grosser for failureto appear in court on the “trumped up”fraud charges. They chose not to pullhim over on the road to serve thewarrant, instead allowing him to travelto his home where they suspected hehad firearms and knowing his wife andtwo babies were present. Without theagreed-to flashing lights and sirenswhen approaching, and unidentifiableas police officers, Tony Grosseropened fire with warning shots whenseeing a “shadowy figure” sneaking upon his back door. A police officer wasseriously injured and the 40-hour siegebegan.

Forced to represent himself in there-trial, Tony Douglas Grosser arguedgenuine self- defence and put it to thejury that the behaviour of the police,especially during “the siege,” showedmurderous intent. He was found guiltyagain and received the same sentence:22 years imprisonment with 18 yearsnon-parole. All appeals to the SupremeCourt of South Australia have beenrejected and Tony Grosser now isseeking leave to appeal before theHigh Court of Australia. He is, onceagain, forced to represent himself.

Many people continue to beintrigued by the length of the siege.False information was put to themedia. A 2 km cordon prevented themwitnessing the events and reportingcorrectly.

At 3pm on Tuesday 10 May 1994,only five days after the end of “thesiege,” Tony Douglas Grosser wasinterviewed on the telephone byWilliam Power of The Advertiser, ashe wanted the truth to be known. Forargued legal reasons, the record of thisinterview was not put before the jurybut is reprinted below for the informa-tion of all.

Tony Douglas Grosser’s unwaver-ing belief is, “The Truth Will Set YouFree” (John 8:32).

Telephone interview betweenWilliam Gene Power and TonyDouglas Grosser, 10 May 1994

“I am a voluntary patient in JamesNash House.

I’ve got a couple of hundred bulletsand fragments in me.

For two days the police wouldn’t letme surrender. They wanted me dead.

Every time I talked to them theygave me another volley. They werelistening to where I was in the houseand as soon as they knew that they letrip.

They have taken all the tapes that Imade about the NCA bombing and theNCA knows that. I told them. I gavethem a report on that today and theyhave asked for them from Major Crime.

The coppers had a robot in thehouse. The robot tried to shoot methree times with a shotgun on it.

The coppers were asking methrough a megaphone to give myselfup to the robot and when I did, I triedthat, it blew the bloody manhole out.

As I poked my head out of themanhole in the roof it fired. It did itagain and blew another bloody greathole in the roof.

I came down (at night) and gotsome supplies and it was goingthrough the house looking for me andkept firing.

I was still able to keep going I hadthree SKK (rifles) and 2000 rounds ofarmour piercing ammo from Chinamade by Norinco [he spelt outNorinco].

I wouldn’t shoot. I shot for only twoof 40 hours it went on and the policeshot for the rest.

I fired 1000 rounds in the first twohours and they fired unknown thou-sands in the next 38 hours.

They (doctors) took a big shotgunpellet out of my head.

I was in constant contact with thepolice but all they were doing wasgetting me in a position to shoot.

Every time I moved a huge volleywas fired. I moved and then wouldspeak and another huge volley wouldbe fired.

I asked for my mum and father andMick Skrijel of Digby Victoria to cometo the house and I would come out withhim or my brother and mum and dad.

Police say they all refused to comeout that is bullshit.

I got blinded by teargas.The major wound is above my left

eye.I can’t get out of James Nash

House.I was hit by 40 or 50 bullets and

shotgun pellets pieces of fragmentsfrom stun grenades and teargas. Afterthe first time I was shot down and lyingon the ceiling in the roof.

Bits of metal from the roof alsowounded me.

PAGE 14 THE WHISTLE, #37, APRIL 2004

I reckon some of it is pieces of solidshotgun and pieces of stun grenade.

Somebody started shooting at methrough a window. It was the policewho fired first.

The guns were mine hidden in theroof.

Police searched the house not longback and they were not found in thehiding place in the chimney.

I had three SKKs 20 (full) mags anda full case of ammo. Each mag held 30rounds 7.62.

All I was trying to do was protectmy family.

I didn’t know it was the police. All Isaw was an armed person shooting atme.

They wouldn’t let me give up.I was for two days in the chimney.I snuck down to get blankets in

between gun blasts.The police got all the tapes I made

about coppers stitching up Perre. ThePolice Complaints Authority is trying toget them from Major Crime.

Westmacott is doing that.I have tried to get various lawyers

to help me. Peter Waye and RichardArmor but they have all bailed out.

The robot blew a …. great hole inthe ceiling right near my head.

I went along with the directions toshow myself with my hands up and nogun. I did that and they tried to shootme.

I talked to her (negotiator) for hoursshe told me she was 44 years old andshe wouldn’t tell me her name.

I could have got heaps of cops.Once the lady negotiator came out

from behind the rear of the house nearthe swings. She was coughing andspluttering (from tear gas) and I couldhave filled her with holes.

I told them I would put a whitejumper on so they could see me.

I went out through the hole (fromthe tractor) with my hands out in frontof me.

The coppers came from behind inthe roof and up the ladder and took medown but dropped me the last sevenfeet.

They dragged me to the lawn andkicked the … out of me.

I got bruises everywhere from that.Someone came up who was in

charge and said cut that out.At Royal Adelaide I was on the

operating table and a cop with thebadge number 636 kept patting hisrevolver saying we are going to finishyou, we are going to shoot you.

The police surgeon grabbed andsqueezed all my wounds. He putsomething on my feet which felt likerazor blades.

He had a little hammer to test myreflexes and used it on my woundswhen nobody else was around.

He ordered all the Royal Adelaidedoctors away because he had prefer-ence.

I could have shot 10 or 20 coppersno worries.

The ammo would have gonestraight through their vests.

The poor bloke I shot I didn’t knowhe was a cop.

He was sneaking along beside thehouse and I could have blown his headoff.

The police had told me if they werecoming to my house they would puttheir sirens on so I would know it wasthem.

All I saw was this sneaking manwith a gun in his hands and shooting atme.

I don’t know what he had (type ofgun), he was sneaking past thecurtains.

I was in the toilet and I was out ofthere like greased lightning andgrabbed a gun and waited in the hall ashe aimed into the house and fired sixshots before I retaliated.

I then gave him a full magazine (20shots).

I fired low and he kept shooting so Idid.

Lorraine was with me and had achild in each arm and bullets werewhizzing everywhere.

She has one blanket for warmth.She has a six-month old baby and

an 18-month old baby.Tear gas ruined everything.The police had no reason to come

at all.I had been in hospital (after

Monday’s court) and faxed the court Iwas going to a psychiatrist and wouldattend court when I could.

I had just come home from town(Nuriootpa) and saw all the cops there.He (Norm a big fat cop with a beard)followed me in a white Commodore (hewas in the passenger seat) right to mydriveway on Moppa Road and he keptgoing and waved to me. (LorraineBailey told me this at hospital after thesiege – 7 May 1994 approximately.)

If they had come saying they werecops or had rung me I would havegone willingly.

I have legal aid.John Clayer is helping me.Police are trying to force her

(Lorraine Bailey) to testify against mebut she won’t.

Psychiatrist professor Powalski anda lot of shrinks have been here to seeme.

The major crime task force inter-viewed me while I was on the operatingtable. I won’t speak to the cops.

This article has been written on behalfof, and approved by Mr Tony DouglasGrosser, c/o Yatala Labour Prison, 1Peter Brown Drive, Northfield SA5085.

Donations, to help with the costsinvolved in preparing court documents,are most welcome and greatly appreci-ated. Cheques can be made payable toTony Douglas Grosser and posted tohim at the address above.

Editor’s note: Thanks to CynthiaKardell and Patricia Young for proof-reading this issue.

THE WHISTLE, #37, APRIL 2004 PAGE 15

Letters

Protect Australia’sintegrity and whistle-blower Nathan Moore

A letter to the Prime Minister,2 February 2004

President Johnson’s Commission onLaw Enforcement and the Administra-tion of Justice in 1967 warned that, “Adrive against organised crime usuallyuncovers political corruption; thismeans that any crusader makes manypolitical enemies.” Some estimates putthe annual cost of fraud to all types ofgovernment in Australia as high as $20billion. Australia needs a crusader.Please bite the bullet and initiate awide based public inquiry that willprotect our economic long term future.

Nathan Moore, key witness to aSenate inquiry into the Defence Force,was bashed after reporting serious drugoffences. Respected organisations haveexpressed concern for his life. Pleaseensure that he is protected.

A year or so back Gary Lee-Rogers, a whistleblower allegingserious wrongdoing in the AustralianProtective Services, made it knownthat his life had been threatened, andwas later found dead. Gary had beenbashed. The cause of death is not yetestablished.

In 1994 Tony Douglas Grosservery publicly alleged corrupt judgesand police in South Australia. He wassubsequently the target of a 40 hoursiege by police during which he and anofficer were wounded. Tony is cur-rently incarcerated in Yatala prisonserving a 22 year sentence.

In 1978 Mick Skrijel reported largescale drug running, and was later jailedon drug and explosive charges thatwere rejected by Victoria’s SupremeCourt. In 1995 David Quick QC,appointed by the government,concluded that the evidence againstMick was fabricated by police officers.Mr Quick’s recommendation for aRoyal Commission was ignored. Mickwas not represented in subsequentproceedings which found against him.

Underlying these and numeroussimilar events is failure to heed thewarnings of Athol Moffitt, former

Judge and Royal Commissioner, thatsophisticated organised crime waslikely to infiltrate public and privatehierarchies. His Royal Commissionreport in 1974 included the followingcomment:

“There appears to be a very greatdanger that organised crime willinfiltrate this country in a substantialfashion. If it does, there will be littleappearance of its arrival and it will bedifficult and probably impossible toeradicate it. Its arrival is unlikely to besignalled by the arrival of armedgangsters with black shirts and whiteties. More likely it will arrive withinthe Trojan horse of legitimate business,fashioned for concealment and appar-ent respectability by the witting orunwitting aid of expert accountants,lawyers and businessmen.”

Organised crime shelters behindgovernments whose lawyers’ priorityis to protect their employer by raisinglegal issues that ordinary citizenscannot afford to challenge. Spindoctors claim due process.

Keith Potter

Face-to-face meetings

I have been a member of Whistleblow-ers Australia for many years and wishto point out a serious weakness withthe philosophy of the organisation.

Greed and bullying is rampant inmodern society as all members, I hope,will agree. I believe that it is expand-ing exponentially, as fast or faster thanthe expansion of technology and alllabour-saving devices. But whentrouble arises we all turn to the courtsor politicians. Politicians are uselessunless one can convince them that theymay not get re-elected if they don’t act.

But courts are a different story inspite of the fact that solicitors andbarristers are regarded as officers ofthe court! No judge or magistrate willmake a decision or give a rulingwithout face-to-face discussion and/orevidence. If one or both parties or theirlegal representatives do not appear inthe court room, no decision will takeplace, on paper or orally.

The courts are justifiably adamanton this point. Yet WhistleblowersAustralia does the opposite. No face-to-face discussion except, I nowrealise, at the National AGM. Icongratulate Western Australia on thepublication of its AGM draft minutesin the recent January issue of T h eWhistle. I do not recall this being donebefore. Nor do I recall any notice beinggiven of the AGM. However on thislatter matter I may not have seen orreceived a copy of such notice.

I know that face-to-face discussionis often fraught with difficulties, traveland time cost. I believe that ourPresident, Jeane Lennane is a highlyskilled and well educated person and Icongratulate her on her re-election. Ialso believe that she and quite a fewmembers are aware of the difficultyof face-to-face discussion and espe-cially that the human (and animal)brain works faster than computers.Human speech and body signals aredead slow compared to the brain.Therefore the job of chairing face-to-face discussion and mutual decisionmaking are extremely difficult. Oneonly has to observe any parliament inthe world to confirm this fact. This factalso promotes excessively bullyingpeople to bypass democracy. Thishappens even in everyday conversa-tion, and even just between two peopleonly. It also causes some people tobecome violent in response to beingsimply interrupted.

In spite of these difficulties of face-to-face meetings, there are plenty ofsimple rules of debate or standingorders. (If an organisation does nothave standing orders, they are readilyavailable for adoption by Whistle-blowers Australia or other bodies.)

My concluding remark is aquestion: will Whistleblowers Austra-lia conduct many more face-to-facemeetings?

Jon B Phillips

[Editor’s comment: The AGM draftminutes published in the January issuewere for Whistleblowers Australia, notWestern Australia. Previous AGM draftminutes have been published in TheWhistle.]

PAGE 16 THE WHISTLE, #37, APRIL 2004

Whistleblowers Australia contacts

ACT contact: Peter Bennett, phone 02 6254 1850, fax 026254 3755, whistleblowers@iprimus.com.au

New South Wales“Caring & Sharing” meetings We listen to your story,provide feedback and possibly guidance for your next fewsteps. Held every Tuesday night 7:30 p.m., PresbyterianChurch Hall, 7-A Campbell St., Balmain 2041.General meetings are held in the Church Hall on the firstSunday in the month commencing at 1:30 pm. (Pleaseconfirm before attending.) The July general meeting is theAGM.Contact: Cynthia Kardell, phone/fax 02 9484 6895;messages phone 02 9810 9468; ckardell@iprimus.com.auWebsite: 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,christina_schwerin@yahoo.com; Mervin Vogt, 03-97865308, mervyn@teksupport.net.au.

WhistleBrian Martin, editor, bmartin@uow.edu.au, 02 4221 3763,02 4228 7860; Don Eldridge, Isla MacGregor, Kim Sawyer,associate editors

Peter Bowden on his own letter

The following letter was sent to the Sydney Morning Herald on17th December last, a shortened version of which appeared thenext morning:

The Herald describes Bill Howard, Finance Managerfor HIH, as a whistleblower. It uses the same word,whistleblower, to describe the gallant nurses atCampbelltown and Camden hospitals. Howard is facingmany years in jail and has rolled over in a bargain toreduce his sentence. The nurses were acting for thegood of us all. The same description cannot be appliedto both. Howard had his chance to whistle blow in thepublic interest when he was with HIH. Now he is justself-interested. The nurses are public-interest whistle-blowers. Peter Bowden.

But was I right? Howard provided inside information which wouldnot have got out without him giving it. This is one definition of awhistleblower. He was also acting in the public interest, anotherkey definition of a whistleblower. His evidence will be used at thetrial of Brad Cooper, accused of bribing Howard to obtain favour-able treatment of a $6.75m claim against the insurance company.He will also give evidence at the trial of Rodney Adler, facingprosecution for the manipulating the share price of HIH and FAI,insurance companies with which Adler was involved. The Directorof Public Prosecutions says that without Howard’s evidence, thecrown would not have been able to bring these people to trialexpeditiously.

And we do not know what was going on in Howard’s mind. Hemay be genuinely sorry for what he has done. Many a whistle-blower has acted in the public good for reasons that are notalways pure at heart.

On 23 December, the judge gave Howard a three-yearsuspended sentence, warning him, however, that the custodialsentence could be imposed in the future if Howard did notcontinue to cooperate.

Do we need different definitions of whistleblowing to distinguishpeople who roll-over from those who act straight off in the publicinterest? I — a member of Whistleblowers Australia, incidentally— think we do, but I don’t know what the descriptions should be.Could the readers give their opinions?

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.