Individuals who come forward to report unethical and illegal behaviours in their professions and workplaces, face a fateful decision. While books, articles and movies are inspired by courageous truth tellers who do not stay silent, who refuse to turn a blind eye or acquiesce to corrupt forces, the personal and professional costs they will experience stay with them for the rest of their lives.
Few people can ever appreciate the awful stress and pressure whistleblowers face. There is also the real possibility that despite coming forward, or bravely telling the truth, little might be done to remedy the issue. If action is taken, it might be done grudgingly with resentments.
The possibilities of being professionally ostracized, marginalized, and or disciplined being common outcomes. When subordinates stand up against the powerful, particularly government organizations, corporations and powerful individuals to report concerns about wrongdoing or bad behaviour, they can expect no parades. Their honesty and integrity will not be rewarded. Even if their complaints are found to have legitimate merit and lead to serious investigations, it is the political embarrassment caused that inspires recriminations. Despite all the legislation, the workplace guidelines, the charters of professional practice, most organisations still reserve for themselves the right to deal with dirty laundry internally, quietly, and often secretly. There are numerous reasons not to come forward as a whistleblower, not least the toll the whole process will take on one’s life.
Institutions, governments, politicians and the professions have an interest in avoiding public scrutiny and outside investigations of their operations. It might be argued that they should recognize a greater interest in having zero tolerance for illegal and unethical behaviours, but there are other concerns. Despite endless guidelines within almost all professions outlining codes of conduct, expectations, and complaint processes, this is not a genuine desire for ethical behaviour. They merely outline the internal processes by which organisations deal with complaints. There is also an inherent desire to limit damage and embarrassment. Bureaucracies prefer to operate with secrecy in times of crisis, therefore, these investigations are almost always tightly controlled. The ability to ‘handle’ a complaint strategically, even a serious one, is enhanced by an internal process that ultimately favours the interests of the organization not the individual.
In the ongoing saga of Bernard Collaery and Witness K, the veil of ‘national security’ is used to manipulate the legal process through secrecy and endless hearings. Due to the courage of Witness K, we are now aware that in 2004 the Australian Secret Intelligence Service (ASIS) bugged the offices of the Timor-Leste government to help Australia gain advantages in oil and gas negotiations. Witness K first raised his concerns directly to the Inspector General of Intelligence and Security. Witness K, and Collaery, who acted as his legal representative, have been subjected to ongoing government persecution since 2013. In 2018, ‘conspiracy’ charges were laid against both men. Was this because they had really done something wrong, or was it because the embarrassing revelations of the ASIS bugging voided the original 50/50 oil and gas split between Timor-Leste and Australia? The official use of ASIS to bug the offices of a friendly government (Timor Leste) during oil and gas negotiations, is though, apparently fine. Witness K has accepted minor punishment, but the endless persecution of Collaery continues unabated.
Major David McBride, a military lawyer who served in Afghanistan, had concerns about serious ADF war crimes and took this information to the Inspector General of Defence. Unsatisfied, he contacted members of parliament, and eventually the Australian Broadcasting Commission (ABC) in 2017. In 2018, McBride was charged. Like Witness K and Collaery, ‘national security’ has been used to veil the prosecution in secrecy. The Brereton Report, conducted over four years, found that in 23 separate incidents, the Australian special forces allegedly murdered 39 Afghans. This report highlights that McBride’s concerns about atrocities were justified, but he continues to be prosecuted.
In South Australia, Richard Boyle is facing years in prison for making public legitimate concerns about unethical behaviour within the Australian Tax Office (ATO). Concerned by aggressive ATO debt collection practices, he contacted the Inspector General of Taxation in 2017. In 2018, he went public with information about the ATOs aggressive debt recovery operations. The debt recovery style used by the ATO at that time, and since abandoned, made repeated use of garnishee notices. Many people subjected to this regime were “simply broken” by the experience. Strangely, in all these cases the journalists and media outlets which reported the revelations do not face similar ongoing attention.
In each case outlined, the public interest is clear. Australians should have the highest expectations about the behaviour of their government and institutions. It cannot be that in raising legitimate concerns whistleblowers are expediently crushed by the state, not because their concerns are ill informed, but because public awareness is politically embarrassing. In short, we are not meant to know.
What happens when a person goes through the proper processes in alerting authorities to their concerns about wrongdoing? What then happens when a person is forced to go beyond the official limits to report wrongdoing? The answer is remarkably consistent, they are severely punished. As shown in the cases of Witness K, Collaery, McBride or Boyle, the punishment will take many years. Even if the remaining prosecutions are eventually abandoned, the years of hearings, or allegations, of smearing, destroy lives, families and careers.
It is clear that existing whistleblower protections are not only woefully inadequate, but they also fail utterly to protect the wellbeing of individuals who raise legitimate concerns, particularly if these revelations embarrass the Australian state. All citizens should be gravely concerned by the fact that the full legal powers of the state are being so blatantly used to punish whistleblowers. Win or lose, government prosecution has a chilling impact on our democracy and the public interest. Despite alerting us all to serious wrongdoing, who will want to be the next Witness K, Collaery, McBride or Boyle?
This erosion of our democratic rights concerns many Australians. It’s certainly why I am currently working as researcher for Alliance Against Political Prosecutions (AAPP). If you are also concerned about the issues raised in the article, please support AAPP here https://aapp.ipan.org.au/ and sign the petition https://chng.it/ydggcy294f
Adam Hughes Henry is a former honorary lecturer, School of Culture, History and Language, ANU. He is a former E.G Whitlam Whitlam Research Fellow, Western Sydney University in 2018-19. He is currently an associate editor for The International Journal of Human Rights (Taylor and Francis).
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