Newsletter of Whistleblowers Australia Inc.
Issue No. 3 1999, September 1999.
7-A Campbell Street, Balmain NSW 2041. Tel: 02 9810 9468, Fax: 02 9555 6268.
Suppression of dissent website
in the section on Contacts
in the subsection on Whistleblowers Australia
Index to September
1999 issue. 1 1 2 6 8 9 11 12 12 14 15 Book talk
How to
Sue Your Boss. 15 16 16 17 17
Whistleblowers Australia Inc. Annual General Meeting at 1:00 pm Saturday 27 November 1999.
Venue:
River Room, Emmanuel College, University of Queensland, Sir William McGregor Drive, St Lucia (Brisbane),
1.00 pm Saturday 27 November 1999.
Agenda.
Nominations.
Nominations for national committee positions must be delivered in writing to the national secretary (Rachael Westwood, 7A Campbell Street, Balmain NSW 2041) at least 7 days in advance of the AGM, namely by Saturday 20 November. Nominations should be signed by 2 members and be accompanied by the written consent of the candidate.
In the past, we have consulted beforehand to find suitable volunteers. If you are interested in joining the national committee, it would be helpful to talk with one or more current members. (See below for a list.)
Proxies.
A member can appoint another member as proxy by giving notice to the secretary (Rachael Westwood) at least 24 hours before the meeting (i.e. by 1:00 pm 26 November). Proxy forms can be obtained from the secretary. No member may hold more than 5 proxies.
The Employer Guides for Workplace Bullying and for Occupational Violence:
The objective of the Workplace Health and Safety Act 1995 is to prevent a person’s exposure to the risk of death, injury or illness being caused by a workplace or (and this is relevant for workplace bullying and occupational violence) workplace activities.
The objective is achieved by preventing or minimising a person's exposure to the risk of death injury or illness being caused by a workplace or by workplace activities. To this end the Act establishes a framework which:
1. imposes workplace health and safety obligations on certain persons who may affect the health and safety of others, and
2. establishes benchmarks for industry.
Generally the obligation for ensuring the workplace health and safety of workers affected by workplace activities rests with the employer. To meet this obligation employers must ensure persons are free from death, injury or illness caused by workplace activities, or the risk of these. Employers must therefore prevent or minimise workplace bullying and occupational violence at the workplace, as these have the potential to cause death, injury or illness.
The Employer Guides for Workplace Bullying and for Occupational Violence, respectively, establish benchmarks for industry, which are useful, educational and respond to a need in industry.
Anne Quinnell, Policy Director, The Queensland Government Division of Health & Safety, Department of Employment, Training & Industrial Relations. 29 July 1999.
The various forms of retribution against, and abuse to, whistleblowers can be described in generic terms as workplace bullying. Almost a year has passed since the Queensland Government Division of Health & Safety (DET&IR) issued its ‘Employers Guide to the Elimination of Workplace Bullying’ as a significant OHS compliance standard and model policy against workplace bullying.
To ensure that this anti-bullying guide and policy is more widely disseminated it is reproduced below. Similar anti-bullying OHS measures have been initiated in SA and Victoria however WorkCover NSW has insisted that bullying be excluded from workplace violence guidelines and its only acknowledgement of workplace bullying is confined to the physical brutal ‘apprentice initiation rites’, but excluding intimidation, ostracism and other forms of ‘white-collar’ violence.
The financial failures of workers’ compensation schemes (particularly that of WorkCover NSW) serve to distract attention away from the more serious issue of the failure to enforce compliance with the OHS legislation. The Queensland initiative is a significant step forward to the more widespread definition of OHS concerns that have been developed in the UK and northern Europe over the past decade. Ed.
This employers guide to workplace bullying was developed by:
What is workplace bullying?
Workplace bullying is an issue for all workplaces, irrespective of size. When not addressed, it can harm a person's well being, become a significant drain on resources, reduce productivity and may have legal consequences for the employer.
Workplace bullying can be defined as 'the repeated less favourable treatment of a person by another or others in the workplace, which may be considered unreasonable and inappropriate workplace practice'. It includes behaviour that intimidates, offends, degrades or humiliates a worker, possibly in front of co-workers, clients or customers.
Bullying can take place between:
Some reasons why bullying might happen at work include:
Bullies may use loud and aggressive tactics like yelling or screaming abuse. But, bullies can also use subtle intimidation like inappropriate comments about personal appearance, constant criticism, isolating workers from normal work interaction, or impossible deadlines.
There are bound to be occasional differences of opinion, conflicts and problems in working relations - these are part of working life. Similarly, some people will excuse bullying behaviour as a necessary means of motivating workers in today's highly competitive commercial environment. But if the behaviour is unreasonable and offends or harms any person, then workplace bullying exists and must be stopped.
Why prevent workplace bullying? Workplace bullying can have harmful effects on the organisation and the individual.
Costs to the organisation
Effects on the individual
Legal obligations
Legal obligations relevant to the work conduct of organisations and their workers are included in legislation, industrial awards and common law.
Relevant legislation, including the Workplace Health and Safety Act 1995 and the Anti-discrimination Act 1991, together with information on common law, is set out in more detail at the end of this booklet.
Under the Workplace Health and Safety Act 1995:
In addition, common law cases are setting precedents for workplace bullying to be dealt with under contract and personal injury claims. Some cases have resulted in significant compensation payments,
Good business sense
It makes good business sense to make sure that bullying at work is prevented, or identified and controlled.
Demonstrated commitment by management is essential if workplace bullying is to be stopped and the work performance of workers is maintained.
Doing something about workplace bullying
It may not be possible to remove all sources of bullying from the workplace. However, in consultation with workers, of this booklet you should manage existing and foreseeable sources of bullying by:
The involvement of workers and managers will help to get commitment to managing bullying at the workplace. It may be useful to include workers who have experienced bullying at work in the consultation.
The strategy could be included in an existing policy/procedure, such as an anti -discrimination policy/procedure or grievance policy/procedure. An example policy is set out at the end of this booklet.
Does bullying exist at your workplace? Does it have the potential to exist at your workplace?
To get a thorough picture of the situation it may be useful to check your workplace. In particular, you should encourage workers to come forward and check for existing bullying behaviour.
Finding out if bullying exists at /our workplace.
Encourage workers to come forward. You should encourage workers to come forward if they are being bullied and protect them from retaliation when they do.
Workplace bullying can remain largely unreported for various reasons, including:
Remember, even if a person does not complain about workplace bullying:
Check for existing bullying behaviour.
A pattern of abuse of workers or co-workers which may include:
Where bullying involves assault or threat of assault it may become a police matter more information refer to the Violence at Work guide (details at the back of this booklet).
Suggested methods for collecting this information include:
Developing a plan.
You should develop and implement a plan to minimise workplace bullying. The plan should include the following features:
Policy
You should develop a written policy on workplace bullying and display it throughout the workplace. The policy should:
The workplace bullying policy could be incorporated into an existing policy, such as sexual harassment policy, or it could form part of an overall harassment policy.
Where possible workplace bullying should also be addressed elsewhere in the organisation, such as the strategic plan, staff selection criteria, induction, performance planning review, the EEO policy, workplace health and safety policy and industrial agreements.
An example of an anti-bullying policy is provided at the end of this booklet.
Contact person
If possible you should appoint a contact person for workplace bullying and make all workers aware of who that person is. The contact person could be a worker or an outside agent.
The contact person could provide advice, support and assistance to a worker on workplace bullying.
The contact person should be:
Procedure
You should develop a procedure for dealing with workplace bullying and make all workers aware of it.
The procedure, which could be incorporated into existing grievance procedures, should:
Keeping a diary
You should encourage workers who experience workplace bullying to keep a diary of the alleged bullying.
Approaching the alleged bully
The person allegedly being bullied may approach the alleged bully and ask them to stop the bullying, or ask someone else, such as the contact person or a co-worker, to approach the bully on their behalf.
Grievance procedure
The person allegedly being bullied could:
The person being allegedly bullied may lodge a written complaint where the other approaches are unsuccessful, or the allegations are so serious that other approaches are inappropriate.
The procedure for lodging a written complaint should include when and how a written complaint is to be lodged, e.g. through the use of an incident report form.
The grievance procedure should include methods for ensuring people are not victimised as a result of using the grievance procedure.
The investigation
The procedure for carrying out an investigation should address:
Possible outcomes of the investigation include:
Follow-up
Procedures should be outlined for following up on the actions taken to stop the bullying, in order to determine if the actions are effective
Appeal
Mechanisms should be set out for appealing against a decision - internally and externally For example, where the dispute is between a worker and their employer, a person may apply to the Industrial Relations Commission - see 'Legal Obligations' at the end of this booklet.
Access to counselling and/or rehabilitation.
You should provide access to counselling and/or rehabilitation for:
Training, education and awareness
You should provide the contact person, managers, supervisors and other workers with:
Information on the policy and procedures on workplace bullying should be:
Reviewing the strategy implemented
The success of the strategy should be assessed, by evaluating whether it is actually preventing or minimising bullying at the workplace.
Where workplace bullying has been eliminated, regular reviews of the strategy should still be performed to ensure continued effectiveness and appropriateness.
Legal obligations.
Below is a brief outline of some of the legislation, common law remedies and other avenues that may be relevant to workplace bullying.
Workplace Health and Safety Act 1995.
Under the Workplace Health and Safety Act 1995:
Anti-discrimination Act 1991
Where bullying involves acts of discrimination or sexual harassment, a complaint may be lodged under the Queensland Anti-Discrimination Act 1991 and the employer may be held vicariously liable for the action of employees.
Sexual harassment is any form of unwelcome attention of a sexual nature which is humiliating, intimidating or offensive.
Discrimination occurs when someone is treated less favourably due to: parental status; religion; political belief or activity; trade union activity; lawful sexual activity; marital status; sex; race; age; impairment; pregnancy; or association with a person having any of the above mentioned attributes.
Workplace Relations Act 1997
Where a worker is dismissed or is forced to resign as a result of workplace bullying the worker may be entitled to make a claim under the unfair dismissal provisions of the Queensland Workplace Relations Act 1997.
Industrial Awards
Most industrial awards contain grievance procedures, which can be used in disputes involving workplace bullying.
Industrial Relations Commission
Where a dispute involving workplace bullying is between an employer and a worker (as opposed to where it is between co-workers) a person can lodge a Notice of Industrial Dispute with the Industrial Relations Commission.
WorkCover Queensland Act 1996
A worker who suffers an injury or disease as a result of workplace bullying may submit a claim for workers' compensation under the WorkCover Queensland Act 1996.
However, the worker will have to demonstrate that: he or she is suffering from an injury or disease caused by his or her employment; that the employment was the major significant factor causing the injury or disease: and the circumstances do not meet the exclusions as documented in the WorkCover Queensland Act 1996.
Public Sector Ethics Act 1994
The Public Sector Ethics Act 1994 states five 'ethics obligations', including 'respect for persons'. These obligations are intended to provide the basis for codes of conduct for public officials, to be developed by government departments and other public sector entities, such as a university.
Criminal Code
Where bullying involves physical assault or threat of assault, the incident becomes a police matter and is dealt with under the Queensland Criminal Code.
Section 346 of the Criminal Codes states:
"Any person who assaults another with intent to hinder or prevent him from working at or exercising his lawful trade, business or occupation, or from buying, selling or otherwise dealing with any property intended for sale, is guilty of an offence and is liable on summary conviction to imprisonment with hard labour for three months."
Common Law
An employer is under a duty to protect workers from workplace bullying. This duty exists:
Under common law, employers who do not take suitable precautions to protect workers from workplace bullying may be liable for any physical or psychological injury suffered by the victim. Recent cases at common law are setting precedents for workplace bullying to be dealt with under personal injury claims, resulting in some significant compensation payments.
Example Workplace Bullying Policy.
... Company Name... considers workplace bullying unacceptable and will not tolerate it under any circumstances,
Workplace bullying is the 'repeated less favourable treatment of a person by another or others in the workplace, which may be considered unreasonable and inappropriate workplace practice'. It includes behaviour that intimidates, offends, degrades or humiliates a worker, possibly in front of co-workers, clients or customers.
Workplace bullying may cause the loss of trained and talented employees, reduce productivity and morale and create legal risks.
The company believes that all employees should be able to work in an environment free of bullying. Managers and supervisors must ensure employees are not bullied.
... Company Name... has grievance and investigation procedures to deal with workplace bullying. Any reports of workplace bullying will be treated seriously and investigated promptly, confidentially and impartially.
... Company Name... encourages all employees to report workplace bullying. Managers and supervisors must ensure employees who make complaints, or witnesses, are not victimised.
Disciplinary action will be taken against anyone who bullies a co-worker Discipline may involve a warning, transfer, counselling, demotion or dismissal, depending on the circumstances.
The Contact Person for bullying at this workplace is:
Name:
Phone number:
6 November 1998.
Where to find information.
Information and Referral.
Australian Council of Trade Unions (Qld), OHS Unit
Beyond Bullying Association
Centacare
Dispute Resolution Centre
Division of Training (Apprenticeship Operations)
Division of Workplace Health & Safety
Legal Aid Queensland
Queensland Anti - discrimination Commission
Queensland Chamber of Commerce and Industry
Queensland Industrial Relations Commission
Relaxation Centre of Queensland
Translating & Interpreting Service
Wageline
Workers Medical Centre
Working Women's Service (Queensland)
References on workplace bullying:
(a) Guides.
Stress at Work, Information for Employers, Division of Workplace Health and Safety
Violence at Work, A Workplace Health and Safety Guide, Division of Workplace Health and Safety
Workplace Bullying, Workers' Guide, Division of Workplace Health and Safety
(b) Books & articles.
Adams, A. (1992) Bullying at Work, Virago Press, London.
Downing, J. (1995) Finding Your Voice, Alien & Unwin, Sydney.
Gorman, P. (1997) "Bullying in the workplace", Partnerships: linking aspects of workplace health and safety - the way ahead, Conference 16 to 18 July 1997, Kingfisher Bay Resort, SIA, Brisbane.
McCarthy, R, Sheehan, M., Wilkie, S., and Wilkie W. (eds) (1998) Bullying: Causes, Costs and Cures, Beyond Bullying Association Inc.
Randall, P. (1997) Adult Bullying Perpetrators and Victims, Routledge, London.
Spry, M. (1998) Workplace Harassment: What is it and What Should You Do About it? 40(2) Journal of Industrial Relations, pp 232-246.
(c) Videos.
BBC (1994) Bullying at Work: Combating Offensive Behaviour in the Workplace (Qld Distributors: Boyd, Faye & Associates)
Video Communications (1995) Workplace Harassment (Qld Distributors: Boyd, Faye & Associates).
I've decided not to stand again for president at the upcoming annual general meeting in Brisbane on 28 November. Therefore it seems a good time to reflect on the role of the president and national committee of Whistleblowers Australia.
According to WBA's constitution, the only required duties of the president are to chair general meetings of the association and of the national committee. That isn't too hard, especially considering that there are two vice-presidents to handle the task in case the president isn't available.
Therefore, most of what the president does is at his or her own initiative. In my view, the most important challenge is to promote the health of the organisation nation-wide. WBA has a federal structure, with state branches, local groups and contacts, as well as the national committee.
I think the most important things that WBA does are holding meetings where whistleblowers can meet, providing information directly to individuals (over the phone or by post, email or the web) and campaigning on particular issues such as whistleblower legislation. The bulk of this activity occurs at the state, local or individual level. If there is a group or contact person, then information and support can be provided. What then is the role for a national committee? I see several important functions:
The New South Wales branch is by far the largest and most active in the country. It has weekly meetings with substantial attendance, something unusual for any voluntary organisation. It has initiated effective campaigns, such as the exposure of HealthQuest NSW Government Medical Officer responsible for many forced medical retirements for certifying whistleblowers as insane. It has organised public meetings, lobbied and provided information to many individuals.
Victoria, with nearly the same population as NSW, has not had the same level of activity, though some individuals have poured heart and soul into the cause. Therefore one challenge for WBA is to foster groups in Victoria.
The next three most populated states exhibit a strong contrast. The Whistleblowers Action Group in Queensland has a long record of action, though outside of Brisbane things are patchy. There is a small branch in Adelaide that has taken some important initiatives. But there is no branch in Western Australia. I have talked to 15 or more people in Perth who would be willing to attend a meeting of whistleblowers, but no one yet has been willing to take the initiative to call one.
Australia's next largest cities are Newcastle, Canberra, Gold Coast and Wollongong. We have had occasional meetings in Wollongong which, in any case, is within range of Sydney. There has been less organised activity in the other cities. Canberra is especially important because of its role as national capital. The same assessment can be continued for other cities and towns. There has been considerable activity in some, such as Hobart, and little in others such as Geelong. One or two individuals can make a big difference.
Since whistleblowers are likely to be found just about anywhere in roughly similar proportions, the goal should be thriving whistleblower support groups throughout the country. There's a long way to go!
The second key function for the national committee is fostering interaction and mutual support between whistleblowers at a national level. National networking and support occurs mostly by phone, with some by email, fax and snail mail. Visits, when they occur, are important.
National-level interaction is partly achieved by meetings of the national committee itself. It is composed of the president, two vice-presidents, secretary, treasurer, national director, chairs of branches and up to six other committee members. Although there is no requirement that the national committee include members from across the country (except via the chairs of branches), we have tried to encourage people from different regions to stand for office. At present the members of the national committee are:
President, Brian Martin, Wollongong, NSW;
Vice President, Jean Lennane, Sydney, NSW;
Vice President, Christina Schwerin, Sale, Vic.;
Secretary, Rachael Westwood, Sydney, NSW;
Treasurer, Feliks Perera, Mount Coolum, Qld;
National Director, Greg McMahon, Brisbane, Qld;
Chair NSW branch, Cynthia Kardell, Sydney, NSW;
Chair SA branch, John Pezy, Adelaide, SA;
Committee member, Stewart Dean, Sydney, NSW;
Committee member, Anthony Quinn, Melbourne, Victoria;
Committee member, Bob Steele, Sydney, NSW;
Committee member, Grahame Wilson, Sydney, NSW.
It could be said that NSW domination in the national committee roughly reflects national membership statistics. The challenge is to increase both activity and membership throughout the country. The national committee needs to take the lead in this.
One difficulty is communication on a national level. Due to Australia's size and the cost of travel, it is virtually impossible to get everyone on the national committee together in one place and time. If meetings are always held in Sydney, then Sydney dominance is reinforced. Holding the annual general meeting in Brisbane this year is a welcome change for this reason.
Sometimes we have developed policy without meeting face to face. For example, I have circulated proposals to the national committee by sending letters. If no one objects, then the proposal is taken as accepted. If there is an objection, then a revised proposal can be circulated or it can be discussed in a conference call.
Any member of the national committee can take the initiative to make proposals, initiate campaigns or float ideas with the rest of the committee. It is not a special obligation for the president. Greg McMahon, National Director, has taken the running with the initiative to highlight whistleblower cases of national significance, especially as a means of promoting whistleblower legislation. This is a good example of the third important function of the national committee, namely co-ordinating initiatives and campaigns with national dimensions.
What I've described so far is what the national committee should be doing ideally: supporting new and existing whistleblower groups, fostering mutual support at a national level and co-ordinating national-level initiatives. The president is ideally placed to oversee and promote these activities. However, the reality is a bit different!
I've spent a lot of time talking to individual whistleblowers. Sometimes they contact me because they've heard me on radio. Sometimes they ring after getting my number from the message on the WBA-NSW phone. Sometimes they write after seeing an article of mine. Increasingly, they send an email after seeing my web site (http://www.uow.edu.au/arts/sts/bmartin/dissent/). Like others who are contacted, I listen, send an information packet if desired, recommend the nearest meeting or contact person and make specific referrals if appropriate.
Answering individual enquiries is not a formal part of the president's job, but it is inevitable for anyone who gains some visibility in the whistleblowing area. The stronger the organisation, the easier it is to deal with enquiries. Depending on their case, people can be referred to others who are more appropriate. For example, I refer callers involved in building industry disputes to Cynthia Kardell and refer police whistleblowers to Jean Lennane. If the caller is concerned about scholarly misconduct, then I'm the person they should be referred to!
Some callers want more than a referral and more than advice: they want or expect WBA to take official action on their behalf. The sad reality is that we don't have the resources to do this. Therefore I'm thankful for our policy not to take on individual cases.
I've been contacted by members who want me to take action on some important case, for example to issue a media release, to write letters to government departments or even to write letters to all politicians. Many of these cases are indeed important and worthy of support. However, even just a handful of such cases would use up all available energy among national committee members, many of whom have their own cases as well. If we became advocates for individuals, we would have to say no to nearly everyone anyway.
It seems to me important that the national committee focus on building up branches, liaison and campaigns. In the long run, this will bring in more people and help develop skills in dealing with whistleblower cases, and thus provide more help than dealing with every urgent case as it arrives. WBA has the same dilemma that faces every service that is overloaded with worthy applicants. If all the effort is spent on specific cases, there is nothing left for long-term strategies dealing with the roots of the problems. In addition, constantly dealing with emergencies is a prescription for burnout.
Advocacy for whistleblowers is important, whether by paid counsel or volunteers. However, this is different from WBA, or "A office bearers, being expected or required to be advocates for individuals. This would be a prescription for failure and hurt, since some whistleblowers are bound to judge efforts on their behalf as inadequate in quantity or quality. Official channels, such as grievance procedures, anticorruption commissions and courts, regularly fail to deliver what they promise. For WBA to promise advocacy would be to follow in their footsteps.
A less welcome part of the president's job is dealing with disputes within WBA. Like any organisation, the person at the top is seen as the person of last resort for making complaints.
Every area of life with which I've come in contact-universities, environmental groups and amateur music, among others-has its share of interpersonal conflict, faction fighting and nasty dealings. WBA is no exception. The potential problems are greater because whistleblowers are strong-willed and sometimes unbending characters, many of whom have been severely traumatised by their experiences.
Furthermore, whistleblowers are united only by their whistleblowing and the attacks they have suffered. They have a variety of views on social and political issues and a variety of personal styles. Added to the mix are people with grievances, real or imagined, who are looking for someone to complain to and who chance upon WBA.
Therefore, it should be no surprise that WBA has had its quota of internal battles. One thing I soon learned as president is that office bearers can come under attack simply because of the positions they occupy. It is possible to be condemned for taking action or not taking action, with no option free of criticism.
People may complain to me, but the president of WBA has no real power. Any power in the organisation is collectively held by the national committee, of which the president is just one member. I am rather bemused when a member contacts me asking me to ensure than some other committee member does their job. Naturally I will do what I can to help the organisation to run more smoothly, but being an enforcer is not part of the job description! In any case, WBA is a voluntary organisation, not an employer with paid staff to boss around.
In the past couple of years there have not been such serious conflicts involving the national committee, but there are no guarantees for the future. One of the challenges facing the national committee is to develop procedures to reduce the risk and impact of debilitating conflict, without making things too bureaucratic. If we can turn some of the energy spent on complaining, backbiting and internal conflict toward solving whistleblowers' problems, we will be effective indeed!
Personally, I think that when WBA is involved in advocacy for individuals there is a greater risk of conflict. This is because advocacy inevitably identifies some individuals as more worthy and others as less so. Hence I prefer WBA to concentrate on helping people help themselves: self-help, mutual support and provision of information.
If things are rolling along relatively smoothly, then why will I be standing down as president come November? The main reason is that it will be nearly four years since I took on the job. It's time for someone else to have a go and to inject their enthusiasm and personal vision into the national committee.
I hope to continue as a committee member, perhaps with the title of "international contact." I have been in touch with whistleblowers and whistleblower organisations in several countries and can build on this experience. WBA is extraordinarily successful when compared to what's happening in other countries. Only Britain has a similar organisation - Freedom to Care - composed largely of whistleblowers. In the United States, the Government Accountability Project does superb advocacy, but it can handle only a tiny fraction of cases. There is no general whistleblower membership organisations in the country. It is even worse in Canada and New Zealand, where there are no whistleblower groups and it is not obvious where to refer a whistleblower. For all its undoubted weaknesses, WBA is a wonderful asset.
In my years as WBA president, I have learned an enormous amount about whistleblowing from whistleblowers themselves and especially from experienced members of WBA. To pass on some of this insight, I've written a book, The Whistleblower's Handbook, which will be published this year by Envirobooks in Sydney and Jon Carpenter in Britain. I even included some comments about whistleblower groups, based largely on my experience with WBA.
It's important to remember that official positions in WBA are just that: positions with names. Having worked on issues involving dissent and whistleblowing since the late 1970s, I knew a lot about the issues before becoming president. But suddenly, as president, people thought I was more of an authority. Being in the position certainly helped me to gain more knowledge.
My point is that there are many knowledgeable and supportive people-some who are members of WBA and some who are not-who can help whistleblowers and help deal with the problems about which whistleblowers are concerned. Many of them have no official position, but they are valuable nonetheless. The challenge for WBA is to draw on all these people to achieve our common aims.
Brian Martin,
President Whistleblowers Australia Inc.
Union response to dialogue invitation disappointing.
At my suggestion, the New South Wales branch of Whistleblowers Australia decided in June this year to hold (if possible) a discussion meeting on Sunday 5th September 1999. The subject was:
"The relationship between the employee whistleblower who suffers reprisals at work for blowing the whistle and his/her union or professional association"
This was to be the second in a series we are having with various societal groupings with whom whistleblowers interrelate. The first, in May this year (see last issue of "The Whistle"), with Members of Parliament was very successful. For this second panel discussion I sought representation from seven organisations, (see further on), inviting each to send one or two people, as they chose.
The purpose of the meeting, as explained to them, was to consider generally, and possibly by means of examples, the situation where an employee, having spoken up, internally, about a practice that disadvantages innocent people, is victimised by superiors; and, in this context, what are the relationships of his/her union or professional association to this situation and with him/her; and what options there are, if any, for modifying these relationships with a view to getting better results for all concerned.
In my letters, I also gave an outline of our Association's history, credentials, numbers and make-up. I did also advise that, despite some notable exceptions, support by unions and professional associations for employees "blowing the whistle" at work in New South Wales is currently, according to the experiences of those who have sought assistance from our organisation, rather disappointing.
I advised that discussion would be generated for the first part by the whole group attempting to answer a set of questions prepared and circulated beforehand, as posed by our members and by any of the organisation representatives who would like to supply any. A list of the questions we had to date was enclosed. These were as follows:
1. How should a Union assist a victimised whistleblower, if at all, in a situation where the whistleblower's action in making the original allegation of malpractice was:
(a) a part of his/her official duties
(e.g. as an auditor)?
(b) part of his/her work but not officially required?
(c) not part of his/her work but connected with it?
(d) related to his/her workplace, but not connected with his/her
work?
2. As previous question, but relating to Professional Association assistance instead of Union.
3. If the Union or Professional Association is assisting the whistleblower, do special difficulties arise when a superior officer accused by him/her of either the original malpractice or the victimisation is a member of the same Union or Professional Association; and, if so, what should be done about these difficulties?
4. Could the degree of disadvantage to innocent people which may be occasioned by the malpractice originally alleged by the whistleblower make any difference to the Union or Professional Association when deciding how much assistance to give to the whistleblower?
I faxed the seven invitation letters on 30th June, (each marked to the attention of a person whose name I was given on the phone when I enquired beforehand). I gave postal and Email addresses, and phone and fax numbers to reply to.
Even allowing for the fact that the meeting was scheduled for Fathers' Day (an oversight), the response generally was abysmal. By 3rd August there were nil replies and I started phoning. Between then and now I have made a total of 35 phone calls and had to send the fax again to five of the seven places! Four have now communicated a refusal. Two have still to respond. One union accepted with one representative.
One acceptor is not really enough and we reluctantly cancelled the meeting. However, we have rescheduled it for Sunday 7th November.
Here is a brief description of the reactions of the seven bodies (up to time of writing, i.e. 26th August) and my comments:
Labour Council of NSW. Eight phone calls. Got through to some people in authority but was fended off from speaking to anyone who might be responsible. After some pressure, finally spoke to John Robertson, Assistant Secretary, on 20/8. He was brusque, unapologetic, asked me to send fax again, promised to deal with it. I sent fax immediately. Still no response.
I consider the Labour Council's reaction is disgusting and a grievous insult to this Association and to whistleblowers generally.
Public Service Association of NSW. Three phone calls plus sent fax again. Did not get through to anyone in authority. Received polite, brief, fax from Janet Goode, General Secretary, on 16/8 giving apology that no one could attend on the day.
Disappointing but we may be able to get them to come in November. One of their reps has been assisting one of our members and is sympathetic.
Australian Workers' Union. Five phone calls plus sent fax again. Did not get through to anyone in authority. Finally, on 18/8, I was told that the Secretary, Terry Muscat, had sent copies of the invitation to "various branches", but without any recommendation to attend. Nothing in writing to us to this effect, and, not surprisingly, no response from those branches.
Disappointing though at least our position may have been disseminated a bit more.
NSW Teachers Federation. Four phone calls and sent fax again. Did not get through to anyone in authority. On Monday 16/8 I was told that John Hennessy, Secretary, would respond by the end of that week. Still no response.
Disappointing, though it must be said we have had issues with the TF before and demonstrated outside their conferences!
Nurses' Association (NSW). Three phone calls. Did not get through to anyone in authority. Received a letter a few days ago from Sandra Moait, General Secretary, saying they were very adept in whistleblowing cases but that she "did not consider it appropriate" that their Association participate (no reason given).
Interesting. We might be able to get them to come in November and they could be very helpful. One of their reps has assisted one of our members and is knowledgeable and sympathetic.
Institution of Engineers (Sydney Division). Three phone calls. Spoke to Richard Hanna, Secretary. Sympathetic, could not come himself, but would try to get someone else. Phoned back and apologised unsuccessful.
Encouraging, reasonable prospect for November
Australian Services Union. Three phone calls plus sent fax again. Michael Want, Secretary, phoned me back on 18/8. Sympathetic, said what we were doing was positive, could not come himself, would try to get someone else. Phoned back again with name of person who would definitely come.
Our only acceptance. Great shame I had to tell them it was off.
The meeting has been rescheduled for 3:30 pm, Sunday 7th November, following the 1:30 pm Monthly WBA NSW Branch General Meeting in the Balmain Church Hall. Register your interest in attending the trade union and professional association discussion meeting on whistleblower issues (Tel: 02 9810 9468 and Fax: 9573 1111 or 9555 6268). I hope the Australian Services Union delegate can come to the November meeting. I will confirm the event to interested parties at least a week prior to Sunday 7th.
Richard Blake, NSW Committee Member.
Policy on Whistleblowing and Whistleblower Protection of the NTEU.
Members of WBA lobbied entensively for the adoption of a whistleblower protection policy by the NTEU, and were responsible for preparing a tailored policy document to the NTEU. This is but one of the resources that WBA can offer to public and private sector organisations. Other resources include presentations on whistleblower issues, training on workplace ethics, and the drafting of position papers, policies and proposals. The latest version of the NTEU Whistleblowing and Whistleblower Protection policy follows. Ed.
Whistleblowing and Whistleblower Protection.
That the Whistleblowing and Whistleblower Protection Draft Policy be adopted as NTEU Policy subject to the provision of further advice from the NTEU National Executive Committee on procedural principles that recognise and seek to resolve the potential tensions between the principles of natural justice (see 5ci) and the protection of the anonymity of a whistleblower with respect to all disclosures of serious wrongdoing (see 5cii). (NCM 1998)
Whistleblowing.
1. Whistleblowing is defined as follows:
The disclosure, in the public interest, of information which indicates wrongdoing -and the protection of a whistleblower from recrimination in the course of his or her employment following his or her disclosure of such information.
2. The Union supports the established principles in the university of probity, public accountability and intellectual freedom and the necessity, in certain circumstances, of disclosure of information by staff in the public interest. The enactment of Federal legislation and/or complementary State legislation, on public interest whistleblowing will, therefore, continue to be supported by the Union.
3. The Union believes that the spread of managerialist practices, increased competition, privatisation, changes to award protections and job insecurity, have increased the likelihood of disclosures of such information and have contributed to the need for clear guidelines and protection for both academic and general staff. It is considered that all institutions concerned with public accountability and transparency of operation will be committed to endorsing effective whistleblowing procedures.
4. NTEU policy aims:
5. 'Serious wrongdoing' may include:
In the absence of comprehensive legislation the Union supports the following:
a) The active development of an organisational culture, based on an accepted code of ethics, that supports the traditional concept of intellectual freedom and obligations of probity on the part of university staff. This involves the development and maintenance of an organisational ethos that encourages transparency and awareness of ethical and public interest issues.
b) The establishment by universities, in conjunction with Union representatives, of internal procedures for addressing allegations of serious wrongdoing in or by, or related to, the institution. This should be accompanied by the broad dissemination of information regarding whistleblowing, the procedures available and their use.
c) Procedures should be based on the following principles. They should:
(a) comply with the principles of
natural justice;
(b) ensure that all disclosures of serious wrongdoing, including
those made anonymously, are properly investigated;
(c) require that a public record is kept of any investigations,
showing action that has been taken in response to disclosures
[for example, some State legislation requires institutions to
report to the Minister in their annual report];
(d) ensure the effective protection from victimisation and
discrimination of a person who has made a disclosure: It is noted
that the Queensland legislation makes such reprisals a criminal
offence. In the absence of specific protection under State
legislation, those making disclosures should have access to existing
rights of appeal/review of disciplinary action, appointments,
transfers, unfair treatment, if subject to reprisal due to disclosure
of information [we note that avenues to regulate this have been
diminished since the Workplace Relations Act and must now be pursued
at an enterprise level];
(e) include mechanisms to discourage the intentional giving of false
or misleading information to an appropriate entity, intending that it
be acted on as a public interest disclosure [it is noted that
this is an indictable offence under the Queensland
legislation];
(f) focus at all times on the information disclosed, not the person
who has made the disclosure;
(g) designate the person/s in the institution to whom a protected
disclosure may be made in the first instance [Chief
Executive/Vice-Chancellor, member of governing body, University
Visitor, or other designated, independent person]; Noting that
the designated person in the institution be a joint nominee of the
NTEU Branch and the institutional administration;
(h) state the maximum period of time within which the designated
person/s must respond to the disclosure [ 14 days if the person/s
refuses to give a reason - or 28 days if a reason is given];
(i) state the maximum period of time within which the designated
person/s must investigate the disclosure, gain an institutional
response regarding matters raised and respond to the whistleblower
[subject to the complexity of the issue, 3 months];
(j) enable the person making the disclosure to approach appropriate
external agencies to make disclosures, when internal procedures have
proved to be unsatisfactory [egs. The Ombudsman, Auditor-General,
ICAC in NSW, CJC in Queensland];
(k) ensure confidentiality for the whistleblower - so that persons
involved do not disclose information that might identify the person
who makes the disclosure [unless: that person consents in writing
that this may be done; or it is essential to prevent serious risk to
public health/safety];
(l) be reviewed every two years and adapted accordingly.
6. As a general rule, reasonable internal procedures should be exhausted before any external agency is approached. This includes disclosure of information to the media, which should be seen as an avenue for resolution only when internal mechanisms have been followed.
7. Clauses focusing on the development of procedures regarding the disclosure of information in the public interest and the protection of staff involved in such disclosures, should be included in negotiations in enterprise bargaining.
(NCM 1998). Reprinted from the National Tertiary Education Industry Union (NTEU) Policy Manual 1998/99.
Public Interest Disclosure and Dissent Policy - CPSU - PSU Group (Community & Public Sector Union) Tasmanian Branch and Whistleblowers Australia Inc.
National Executive reaffirms its support for the findings of the Senate Select Committee into Public Interest Whistleblowing and:
National Executive directs the Joint National Secretary to:
Endorsed by National Executive 1/3/1997.
Freedom to Care (United Kingdom) and Whistleblowers Australia Inc. proposal for amendment to International Labour Organisation Convention Article 1
"1(c) any distinction, exclusion or preference made on the basis of the following ground which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. The ground referred to is the disclosure of information by the person against whom the discrimination is directed or another where such disclosure is genuinely believed by the person disclosing it on reasonable grounds to be in the public interest."
The above amendment is the subject of discussions between Freedom to Care and Mr Bill Brett, Chairman, Workers Group, International Labour Organisation.
Federal Union Moves on Free Speech. Joint Press Conference 11 am 8 April 1997. The CPSU (Community & Public Sector Union) PSU Group Tasmanian Branch and Whistleblowers Australia Inc. at PSU Group Office, 4th Floor, T&G Building, Cnr Murray & Collins St, Hobart.
The Community & Public Sector Union, PSU Group (PSU) and Whistleblowers Australia (WBA) today announced a proposal to provide protection to those disclosing corruption, maladministration and fraud in the public interest.
In a joint announcement the PSU confirmed its national endorsement of the findings of a 1994 Senate Select Committee chaired by Senator Jocelyn Newman that "whistleblowing is a legitimate form of action m a democracy". The PSU National Executive also confirmed that public sector employees:
The PSU and WBA have undertaken to support an international move to amend the International Labour Organisation (ILO) Convention to provide for the protection of those making public interest disclosures, and freedom of speech in workplaces. WBA and the PSU will soon begin lobbying major unions to support the adoption of the ILO amendment through the ACTU & HREOC.
WBA National Vice President (Isla McGregor) said that the international move was necessary because of the tardiness of the Federal and Tasmanian Governments to introduce 'Public Interest Whistleblowing Protection" legislation despite the findings of the Senate Committee and promises by the State Government. Ms McGregor said that current attempts by Tasmania Police to prevent the Ombudsman from publishing a report into the conduct of Tasmanian Police internal investigations demonstrated the urgent need for legislation. "Good government is open government", she said; "and that is not what we have in Tasmania. The Tasmanian Government's attempt to silence Dr David Obendorf is an example of how some Governments deny citizens their right to participate in public affairs."
PSU State Secretary, Matthew Reynolds said; "Federal Government plans to commercialise major components of the public sector will make it increasingly difficult for the public to judge the performance of the government. Commercial considerations will dictate that contracted organisations will not release public information which might reflect adversely on government performance, or reduce their chances of renewing their contract." " In an environment where many individuals are insecure in their jobs, significant protection should be afforded any individual who blows the whistle in the public interest" he added.
Mr Reynolds said that; "while organisations like the ABC are prepared to acknowledge the right of dissent by its employees, regressive Governments are intent upon preventing the disclosure of what should be public information. " The 'Coleman Inquiry' into complaints against the ABC resulted in the agency's commitment to developing procedures for dealing with 'whistle blowing' and individual grievances. The procedures will provide that all reasonable steps must be taken to protect employees from victimisation if they choose to speak out on issues of public interest .... "
The PSA and WBA will also comment on the proposed Tasmanian ALP whistleblower protection legislation.
For further information contact:
Matthew Reynolds, Secretary, PSU, Tel. (03) 6224 3428, Fax (03) 6224 0098, Mob 01 490 4037, and Isla McGregor, National Vice President, WBA, Tel. (03) 6239 1652.
Dear Editor,
Mick Skrijel’s extraordinary story (Good Weekend 24.7.99) raises many disturbing issues. Government-appointed investigator QC David Quick recommended a Royal Commission. Why have both Labor and Liberal governments refused? Why is Mick still the only person to have been jailed over the long list of criminal offences committed by others? And why are whistleblowers still routinely being forced to see ‘hired gun’ psychiatrists, five years after the practice was roundly condemned by the Senate select committee into public interest whistleblowing? Such psychiatrists ignore evidence that whistleblowers really are being got at, and dismiss them as ‘paranoid’, at one stroke discrediting them, and removing the need to investigate their allegations. Damage is lasting and severe.
Mick’s credibility was rescued when the psychiatrist who so readily mis-labelled him paranoid was struck off the medical register a few years later for unrelated professional misconduct. Other whistleblowers have not been so lucky. It is surely time to start treating deliberate or careless misdiagnosis of whistleblowers as professional misconduct in its own right.
Yours etc
Jean Lennane 30th July, 1999.
An example of the use of feedback, control & monitoring from "internal witnesses" to the NSW Police Internal Witness Support System.
The meetings of the NSW Police Internal Witness Support System encourage feedback from Police ‘internal reporters’ (or whistleblowers) on the effectiveness of the witness support services. Snr Sergeant Dennis Burrows NSW Police internal reporter (and now also IW Support Officer and Mentor) prepared the following feedback report in mid 1999.
Firstly I would like to thank the Internal Witness Support Unit and Advisory Council for giving me this opportunity to provide my views in regard to my personal experiences as a relieving commander, duty officer, internal witness and also as a mentor.
It has often been said that policing in the Barrier Command is unique and sometimes quite difficult. The impact of personnel reporting misconduct of other officers in 1997 & 1998 had a devastating effect on policing and morale for a lengthy period. Emanating from the reports of misconduct were fear, hate, division and reprisal. Dealing with these effects was at times more difficult than policing. The problems identified during that period have now subsided. Morale has generally improved and officers are again working as members of a team and not individuals, although it would appear that a command stigma stills exists. During a period of recruiting earlier this year to secure personnel for plain clothes positions the comment was made by a prospective applicant, "I was told it was a bit of a leper colony after all the problems up there."
Notwithstanding this it is apparent to me that the command is functional and is also fortunate to have some very good police officers. It is also comforting to know that police officers, generally, who witness misconduct on any level, are prepared to come forward, although I believe because of officers previously experiencing harassment and victimisation, some officers still do prefer, not to be personally involved.
Prior to the reports of misconduct and whilst relieving a command position I was requested to provide immediate assistance to alleviate a situation which was impacting upon an internal witness. On receiving this request I considered that as a commander I was compelled to assist. Personally I wanted to.
I believed that the financial impact in providing assistance was secondary compared to the welfare of the internal witness.
I suggest to you now that has not, and is not always the case. Although aware of responsibilities, some commanders are lethargic in approach to address concerns. Some initially place emphasis on the financial impact prior to taking positive action.
This lethargic approach has not only bewildered internal witnesses, but has clouded officers judgement in regard to coming forward to report unethical behaviour or corrupt actions. The financial considerations has also mystified officers, officers prepared to come forward do consider that their welfare should be a priority.
The initial action taken by the Commander is critical in terms of the Internal Witness Support Policy being successful. Internal witnesses need to be confident that their Commanders:
From my observations and experiences I believe an internal witness is, after coming forward, left in the dark. A report is made; the officer is congratulated, the officer returns to normal duties, and then waits, really not knowing what will happen next. Intervention to provide immediate understanding of procedures and a command guarantee of support is paramount, but not normally provided.
I would suggest that when an officer comes forward a set procedure be adopted.
The officer reporting the misconduct, in the company of a senior officer or duty officer, should meet with the Commander to examine and discuss the report. The Commander should then personally explain the investigative process in detail. The officer should be guaranteed support and the provision of regular updates on the progress of the investigation. The Commander should then document particular concerns, fears or requests made by the officer. Contingency plans to overcome any projected concerns should be discussed and documented by the Commander.
The information forthcoming from this initial meeting should be provided in the notification process together with Command proposals to alleviate any concerns of victimisation or harassment.
If this procedure were adopted, internal witnesses would initially have a clear understanding of where they stand.
The guarantee from the Commander would satisfy them in that support would be provided during all facets of the investigation.
As a senior police officer and coming forward to report serious misconduct I initially declined the opportunity to register as an internal witness, I believed that perhaps as a senior officer I was immune to victimisation and harassment. That belief was entirely incorrect, rank is not a shield that deflects victimisation or harassment.
The unprofessional behaviour of senior personnel involved in the matter that I reported during and after the period of investigation astounded me. These officers considered that I had betrayed the brotherhood. The actions of other personnel who were closely associated to the officers reported also left a lot to be desired. From my observations the power of senior personnel to entice officers to be involved in forms of harassment was overwhelming. (Barking like a dog - cartoons relating to myself as a duty officer, their smell and apparent stupidity - phone calls internally and to my home - damage to my personal vehicle)
The support provided in harassment by subordinate officers was I believe loyalty related, also as a payback for matters found not sustained, provided by some Senior Officers whilst conducting internal investigations.
As an internal witness I was generally pleased with the support and guidance provided by the case officer from the Internal Witness Support Unit. I relied heavily upon my case officer to provide me with a guarantee that my actions were necessary. Because during the period of investigation and waiting time in relation to the outcome, and the prolonged period until officers involved were transferred. I certainly had periodic regrets in regard to the reporting of the matter. A one key issue was that nearly two months lapsed after my IW report before I was interviewed - the delay inflamed my concerns. When the investigation was commenced the investigating officer made it clear to me that he must finish the investigation reasonably quickly as he was soon to retire. At the end of the interview I was disillusioned and felt that the investigation was destined for failure. That feeling was justified when it was revealed that although the investigation raised serious concerns in relation to the actions of officers involved, no formal action was contemplated, although- transfers were pending. Inquires with the Internal Affairs Consultant revealed that the investigation was substandard. It was also stated that I could request a further inquiry but it would achieve little. All officers would be transferred, so a result had been achieved.
A further inquiry with the office of the Ombudsman merely confirmed the comment in regard to the substandard investigation.
Of further concern to me in relation to the transfer of the officers involved in this matter, was that these officers previous to this incident had unsuccessfully sought transfer to destined locations.
During inquiry in regard to the investigation, it was clearly explained that as an internal witness I should not be concerned with the outcome, but satisfied that I was prepared to come forward.
Although other internal witnesses and myself have difficulty coming to terms with what appears to be a reward for misconduct, in preference to a disciplined outcome.
As a mentor I have provided internal witnesses with appropriate support and advice. Whilst functioning in that role I was in a position to draw from my own personal experience. In that I was aware of the concerns and quandaries facing officers, and their expectations of the NSW Police Service and me. I discovered that disillusion and confusion was commonplace. As previously recommended I consider the initial meeting with the Commander is essential to eliminate that disillusion and confusion.
One of the major difficulties I face as a mentor is putting things in place to cater for the needs of the internal witness. At the Broken Hill Sector it is difficult to find solutions to safeguard from threats of reprisal or victimisation. The option of short-term transfer has been considered but the issue of distance between neighbouring sectors impacts upon that option. Therefor continued monitoring of the situation within -the sector is required, if the investigations were finalised swiftly, concerns would be diminished.
Also in mentoring one particular officer who suffered immense criticism and indirect harassment, I found my efforts to be futile in seeking to encourage the officer to remain within the sector after the investigation was finalised. The officer’s emotional wellbeing deteriorated, and that officer has since taken two years leave without pay. I realise now that in the interest of all internal witness, when it appears that they are having difficulty coping. A genuine need exists for immediate referral to support services. To address that concern and overcome location difficulties, the utilisation of local support services has been ratified.
In offering some criticism today, I do commend the Employee Management System. As a Duty officer I have found that the system offers a viable solution in rectify concerns that could, if allowed to flourish, lead to serious breaches of misconduct. The system has basically provided early intervention, a means for modification and correction.
Editorial comment:
It is understood that Snr Sergeant Burrows’ comments were warmly received by the Internal Witness Advisory Council NSW Police, and he joined senior officers in a working party to document improvements to the policy and procedural matters that he mentioned in his feedback report. The working party will have a particular focus on:
Hopefully the early outcomes from the working party will eliminate the remaining difficulties and frictions in current IWS procedures to ensure:
"ICAC puts the fear of God into people. That is useful." Page 20, "Tips from the Top", ICAC Research Section, April 1999.
In the Whistle of July 1998, I wrote a longish article on lessons from ICAC. Most of these were along the lines of how NOT to do things, and nothing really has changed since then, except that ICAC has now turned ten.
Indeed, how could it change? From the beginning, this ‘watchdog’, despite a good complement of teeth, seemed to decide life would be smoother if it didn’t use them, and didn’t bark either, or only very softly, very occasionally.
For $130-odd million over the ten years, the NSW taxpayer has received a large number of ‘glossy’ brochures, a belief - unfortunately fleeting and erroneous -that something is being done about corruption, a few - very few - show trials, and a tiny handful of convictions of corrupt minor officials. The significant improvement in an entrenched culture of heavy police corruption in NSW has come from the Wood Royal Commission, not from ICAC. Elsewhere, it’s business as usual, for example in the State Rail Authority, described by Commissioner O’Keefe in a rash moment of frankness as ‘a bottomless pit of corruption’; and it’s still open season on NSW whistleblowers.
So what went wrong? In my opinion, a number of things are important, and no doubt the following list is incomplete:
1. It is a mistake to have a standing body concerned with corruption. It will inevitably become absorbed into the bureaucratic culture and become part of the problem, a process that seems to be complete in about three years. Royal Commissions, with a life of 2-3 years, are a much better bet. If they don’t work you’re not then saddled with them forever. It’s prohibitively difficult to get rid of a standing body that has all the dirt on everyone, however useless it may now be.
2. If you include local police in your staff, as ICAC did from the beginning, you might as well not bother. The police who will be keenest to work on such a body will be those with the greatest need to know what it might find out.
3. If you expect the same body to cover both prevention and investigation of corruption, you have set up a paralysing conflict of interests. ICAC has been educating government departments for ten years. If it were to find significant corruption now, its reputation for prevention would suffer. If however its prevention had been successful, the corruption-finding arm would be out of a job.
4. If an anti-corruption body is set up in a culture which accepts the myth that significant corruption can occur in an organisation without its boss being aware of it; and that it is quite OK, rather than grounds for removal, for a boss to be unaware of it, then it’s not going to get very far. In its three investigations of minor aspects of the ‘bottomless pit’ at State Rail, for example, ICAC went no further than middle management, despite ample evidence that knowledge of the corruption, if not active participation, went much higher. I think this is a lamentable abdication of responsibility, which braver Commissioners might have avoided, but we also have to recognise the contribution of a naive and trusting society which lets them get away with it.
5. If an anti-corruption body is going to ignore organised crime, it’s not going to get very far either. I have no doubt that ICAC was unwilling to touch it, both because of its lack of results, and from my own experience. In their investigation of the Sydney morgue, for example, they concentrated on catching unskilled staff on video ‘ratting’ dead bodies (going through their pockets and usually keeping any cash.) They made a media meal of this unsavoury but minor activity, while refusing to investigate information from me about a pathologist there, who was asked to leave (and did so, within the time-frame they were investigating) because of an appearance of living beyond his means while putting deaths subsequently found to be from strangulation, or from bullet wounds, down to natural causes. One of the deaths was notoriously related to organised crime. ICAC should surely have been interested in finding out whether, as appearances could suggest, he was on a retainer to turn murders into accidental or natural deaths; and if he was, once he’d left, had his secondary employers found a replacement?
6. Unless an anti-corruption body sees the support, encouragement and protection of whistleblowers as one of its primary aims, they are wasting their time and our money. This unfortunately is the area where ICAC has failed most dismally.
Not a good report card, at the ten-year mark. In my opinion, ICAC has been a waste of money, and worse than useless. We would be better off without it.
Jean Lennane.
The most exquisite heartache is to witness the destruction of the hope and trust of the naïve and powerless ‘victim’.
In December 1996, South Australian Tony Grosser was found guilty of the attempted murder of a STAR division police officer during a siege at his property in Nuriootpa in 1994. There was no dispute that Tony fired the shots that seriously injured, but fortunately did not kill, the officer. His defence, which was not accepted by the jury in the first trial, was that he was acting in self-defence. He was sentenced to 22 years, considerably longer than most people get for murder.
Tony had been in contact with Whistleblowers Australia since 1993. His case has some parallels and connections with Mick Skrijel’s case, which also started in South Australia. Tony alleged that his problems started after he accepted the police invitation to the public to dob in crooked cops in ‘Operation Hygiene’ in 1991. He did so, on the basis of information gathered from contacts with a close family member and associates who worked for the Mafia. He claims he was then harassed by police, who among other things seized all the goods from his spare car parts business, then charged him with fraud on the grounds that he had received cash from customers which he did not have the goods to fulfil. He was at times in fear for his life, both from police, and the Mafia, and partly as a protective measure, gave copious amounts of information to a large number of people, including the media. He claimed he tried to warn authorities about a bomb threat, but wasn’t listened to, before the explosion at the National Crime Authority building in Adelaide that killed WA policeman Geoff Bowen.
In his trial, Tony claimed he thought the police officer he shot was a man named Cass who was out to kill him, and that other officers (all in plain clothes) were Cass’ associates. The trial was lengthy and complicated. The judge’s summing up was criticised by the Court of Criminal Appeal in that "In my view it cannot be said that the evidence was not misapplied and there was no risk of a miscarriage of justice."
The granting of a retrial is the result of many months of hard work by Tony, and WBA’s South Australian stalwart Jack King. Finding a lawyer prepared to put a strong case for an appeal was a major difficulty, solved eventually by finding an 86-year-old with an army background, who Jack says did a great job. Finding lawyers who are prepared to take on the establishment is always a problem for whistleblowers, so perhaps we should learn from this experience. At 86 one wouldn’t have to worry about one’s career, or making enemies; and would also be likely to have much less elastic ethics than many younger colleagues. It would be worth looking round for other retired, ethical and energetic lawyers.
We’ll keep you posted on this very interesting case. Jean Lennane.
Assistance to combat workplace victimisation for $10:00 in a new book by Queensland barrister Kathryn Feeley
Kathryn Feeley, a barrister in Queensland and NSW and PhD candidate at University of Queensland has published a book on her internet site. The book, "How to Sue Your Boss for Work Stress Injury due to Victimisation in the Workplace", consists of around 20 pages of background material for employees who have experienced workplace abuse, bullying and victimisation.
The book should be referred at the first stage of a workplace dispute, to cover the contingency that the abused employee may be forced into litigation. The book is:
Contents include: Immediate action; Knowing your rights; How to recognise violence at work; Health - yours and your family's; Are you working in a toxic workplace? Record of victimisation behaviour; How a former soldier became a broken man from stress in the workplace Some reactions I hear from victims suffering from workplace psychological injury; The effect of victimisation; To prove that workplace victimisation has been detrimental to your health, you must produce accurate medical reports; Your psychiatrist v their psychiatrist; What the courts have said about workplace victimisation; Foreseeability; Contributory Negligence; You must show that you have suffered damages; Mediation.
This book should save legal costs to litigants by ensuring that their case is documented in the most appropriate form for reference (ultimately) to their solicitor and barrister.
Feeley notes that workplace victimisation and intimidation can and does jeopardise a person's health, well being, safety, family and other relationships. The OHS Act and common law require employers to provide "safe workplaces" and risk civil and criminal sanctions if the employer has been negligent. A recent Queensland case is discussed pointing out pitfalls to potential litigants. From this case Feeley notes that:
Kathryn’s book can be purchased for ten dollars:
A password is provided so that the continually updated manuscript can be accessed without further charge.
Robert Taylor.
available to WBA members at a concessional price of $15:00.
"The whistleblower's handbook: How to be an effective resister" is a new book by Brian Martin, President of Whistleblowers Australia. Brian has arranged for all royalties from book sales to be applied to purchase copies for whistleblowers in other countries.
Copies of The Whistleblower's Handbook are available to members of Whistleblowers Australia at a $15 per copy plus postage (cheques payable to Whistleblowers Australia). The concessional price of $15 per copy is a 25% discount from the RRP.
Copies of the book are currently being shipped from Britain. Orders will be filled as soon as the books are available in Australia. Send orders to WBA, PO Box U129, Wollongong NSW 2500. To purchase copies:
These two thick volumes (736 and 800 pages) from ‘Australia’s most frequently banned author’, hot off the press, are available from Kotabi Publishing, PO Box 599, Doncaster, Victoria 3108. Unfortunately they are quite expensive, at $30 each, plus $5 postage and packing, which is a lot for a struggling whistleblower. They are, however, in my opinion great value, and indeed essential reading, so perhaps groups in the various states could combine to get copies. (I’ve donated one to the NSW Branch.) For the computer literate there is now the option of all five of Ray’s books (the latest, plus Smuggled 1 and 2, and The Hoser Files) on CD for $85.
The books are not by any means perfect - they could have been significantly improved by some fairly drastic editing, and apostrophes run as rampantly through the pages as corrupt police and officials. Nor is the material necessarily 100% accurate. Most of the time, in cases I am familiar with, it is scrupulously so, but the reference to a Sydney police officer who shot and killed a paedophile and was acquitted by a jury is misleading. It was in fact a family tragedy; the victim was a close relative whose young teenage daughters had just disclosed regular sexual abuse by him from the age of five. They gave evidence at the trial, and the jury presumably felt sympathetic to the officer having ‘lost it’ after hearing the same material. The NSW Police Commissioner rightly however refused to have him back in the force, deeming him unsuitable to be trusted with a gun.
But such nit-picking aside, the books are a remarkable achievement. They read as if written on the run, which given Ray’s situation is probably true, and to keep track of such volumes of material and put it into some coherent form, no doubt despite continuing harassment, is no mean feat. A great strength is Ray’s willingness to name names, which enables the reader to track the activities of police and magistrates as they move from case to case, and reappear - police at least - in other states, or in federal bodies such as the National Crime Authority. Whistleblowers Australia is joining a call for a national register of corrupt police (like the one for paedophiles) to try to curb this ‘Export Industry’. (VPC chapter 35 gives examples.)
The books cover a wide variety of corrupt police activity - drug trafficking/protection, sexual harassment, rape (including the notorious Maryborough cases for which no-one yet has been charged or even sacked), protection of paedophiles, theft, fatal shootings (some accidental/incompetent, some not), drunk driving, the windows scam, fixing court cases (in both directions), and systematic harassment and intimidation of anyone rash enough to try to protest about any of this. The strip-searches that Ray is subjected to any time he goes near a court - looking not for weapons but for concealed tape-recorders - are an outrageous example of this.
People in states other than NSW were able to see ‘Blue Murder’ on the ABC a couple of years ago - a sickeningly convincing portrayal of the partnership of NSW corrupt police and other criminals in murder and wide-ranging crime. It was banned in NSW because one of those featured was at last to face a multi-murder trial, on the rather flimsy grounds that the program could prejudice future jurors. However, although set then in NSW, it could equally well be set today in Victoria, West Australia, Tasmania or South Australia. (Queensland, though slipping back fast, still seems better than it was before the Fitzgerald Royal Commission; and NSW after the Wood Royal Commission and the appointment of an outsider as police commissioner, has made substantial improvement, though it still has a long way to go.)
Ray has provided a detailed picture of a police force out of control in Victoria, with useful information on other states. Whistleblowers should take particular note of the 100 or so pages of advice in VPC2 on tactics, including advice on how to go about tape-recording encounters with police and other authorities; and of the difference the presence of observers from WBA and Law Watch made to the conduct of the trial where Ray was eventually convicted of perjury. (The trial is detailed in VPC2 - full transcript is available on the Net.) This was a most ironic charge and conviction, given the mass of evidence he’s accumulated over the years proving perjury by numerous police and other officials, none of whom have ever been charged, let alone convicted. In theory, no one should need to be in court to see that justice is done. In practice, observers (preferably intimidatingly professional and middle-class) are vital. And as shown by what happened to two observers who wandered in to Ray’s trial by mistake, in a corruption trial we need to be there in numbers.
The media are invaluable as observers, but Ray at this stage, like Mick Skrijel until recently, appears to be black-banned. If they would only start doing their job, maybe Ray’s next book(s) could be shorter!
In summary, Ray’s latest are an interesting and compelling read, and useful and informative as references. They should be required reading for actual and potential whistleblowers, journalists, and for honest police, magistrates and judges everywhere.
Jean Lennane
Legal remedies may exist for whistleblowers suffering the consequences of forced & ‘improper’ medical retirement.
Employers could be vulnerable to tens of thousands of dollars in compensation payouts by not being more careful about pre-employment medicals, the national law firm Freehill Hollingdale and Page warned yesterday.
Ms Marie-Claire Foley, an employee relations expert, yesterday said employers could be held liable under equal opportunity, privacy and defamation laws as a result of poorly designed, or improperly conducted, pre-employment medical tests.
Under most State jurisdictions, payouts can be awarded up to $40,000 but compensation could be much higher under Federal law.
In one recent case, a man was awarded $40,000 after it was found he had been discriminated against when denied a cleaning job with a State utility because he suffered from hypertension.
Ms Foley, a senior associate with the Perth office of Freehill Hollingdale & Page, said the case was a key example of how the employer failed to direct the doctor on the requirements of the job and was found liable because hypertension was not considered to be an ailment which would prevent the man from carrying out the duties of a cleaner.
''Employers must ask themselves why they want the pre-employment medical conducted," Ms Foley said.
''They need to look at the inherent requirements of the job - such as the duties required and the environment in which the job is to be conducted -and - "inform the doctor".
But in many cases employers do not establish reasons for conducting a medical test and instead issue the same standards for all employees, regardless of the job.
'The next mistake made by employers is if they see something in the results, they write off the applicant rather then making inquiries or seeing if there is another way around the problem," she said.
This was the central issue in the awarding of $14,000 to a occupational nurse who had applied for a job with a mining company, but who was deemed by the company doctor not to be fit for the job because of a back injury.
The company was found liable because it did not provide the doctor with a duty statement and because it not take into account a conflicting assessment from the applicant's specialist and seek a third, independent opinion.
"Employers must be aware of the possibility of a prospective employee taking action against them because it is very easy to make a claim of discrimination, as it is a no-cost jurisdiction," Ms Foley said.
"Employers are also concerned about their reputation and do not want to be seen in a light that is unfair or discriminatory. This issue boils down to a case of litigation and image."
In another case, a woman failed to secure a job as a bus operator because she failed the pre-employment medical on four counts: she was three months' pregnant; she weighed 86 kg; her mother had died of a cerebral haemorrhage; and she was a smoker.
"The employer told her to come back when she'd had the baby and had lost 25 kg," Ms Foley said.
It was ultimately found that the woman had been discriminated against - because she was pregnant, and she was awarded $25,000.
Employers should also be cognisant of their duties under the Disability Discrimination Act.
The next issues of The Whistle will be printed & distributed in late November 1999 & mid-February 2000. We would be grateful to receive original articles or copies of other material on out featured topics and more general issues.
Feature topic for the 11/99 issue:
Feature topic for the 2/2000 issue:
The good, bad and the ugly experiences with:
We are particularly keen to receive your suggestions to improve The Whistle and to get feedback on past issues and articles. Copy cut-off dates are 15/11/99 & 7/2/00 respectively, the earlier the better.
Christmas cards:
The Balmain office of the NSW Branch is again spreading the word with its signature Bah! Humbug! Christmas cards. Send SAE for free sample or you can place orders for November delivery. Cost $3.50 for ten cards & envelopes plus $2.00 package & postage; more than 30 cards are post paid.
Ed.
Whistleblowers Australia Inc. Regional Contact points.
New South Wales: "Caring & Sharing" meetings, we listen to your story, provide feedback and possibly guidance for your next few steps. Held every Tuesday night 7:30 p.m., Presbyterian Church Hall 7-A Campbell St., Balmain 2041. General meetings held in the Church Hall on the first Sunday in the month commencing at 1:30 p.m. (or come at 12 noon for lunch and discussion. Contacts: Cynthia Kardell, Tel./Fax. 02 9484 6895, or messages Tel. 02 9810 9468; Fax 02 9555 6268. Goulburn: Rob Cumming, Tel. 018 483 155. Wollongong: Brian Martin Tel. 02 4221 3763. Relevant web site: http://www.uow.edu.au/arts/sts/bmartin/dissent/
Queensland Contacts: Feliks Perera, National Treasurer, 1/31 Jarnahill Drive, Mt. Coolum Qld 4573. Tel./Fax. 07 5471 7659. Also Whistleblowers Action Group contact: Greg McMahon, Tel. 07 3378 7232 (a/h).
South Australian Contacts: Jack King, Tel. 08 8278 7853; John Pezy Tel. 08 8337 8912.
Victorian Contacts: Anthony Quinn 03 9741 7044 or 0417 360 301; Christina Schwerin 03 5144 3007.
Western Australian Contacts: Avon Lovell, Tel. 08 9242 3999 (b/h).
Editor of The Whistle: WBA, 7-A Campbell St., Balmain NSW 2041. Fax: 02 9804 8857.
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