False hope for whistleblowers

Brian Martin

Published in On Line Opinion, 6 December 2010.

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Whistleblower laws give only an illusion of protection for whistleblowers.

Whistleblowers are people - most commonly employees - who speak out in the public interest to expose corruption, abuse and dangers to the public. For their trouble, they are at high risk of being harassed, ostracised, reprimanded, demoted and dismissed.

Society needs whistleblowers to expose abuse and dangers, so how can they be protected? The usual answer: laws to protect whistleblowers from reprisals. The trouble is, the laws hardly ever work.

For decades, I've been listening to whistleblowers tell their stories, and these stories are remarkably similar. They reported a problem to the boss and suffered reprisals. They reported to higher management and the reprisals were worse. They went to the ombudsman, the auditor-general, an anti-corruption agency or a court, and received little or no relief.

Whistleblowers trust the system, and they pay the penalty. Many say, in retrospect, they were naive.

In Australia, whistleblower laws have been on the books in various states since the 1990s. Yet not a single one of these laws has ever been used to prosecute an employer for reprisals against a whistleblower.

The US has had whistleblower laws longer than any other country. The usual pattern is that laws are passed, then undermined by employers, government agencies and courts, so tougher laws are passed and the cycle repeats. Tom Devine, one of the most experienced whistleblower advocates, wrote in 2004 that "On balance, in practice U.S. statutory whistleblower laws have been Trojan horses, creating more retaliation victims than they helped achieve justice. ... the system has been rigged so that realistically it routinely endorses retaliation".

Devine reported that the Federal Court of Appeals had ruled against whistleblowers in 74 of 75 cases between 1994 and 2002. The year 1994 was when Congress passed amendments to strengthen the 1989 whistleblower law, which was itself stronger than the previous law.

Recently in Canada, various whistleblower advocates condemned the country's law. Duff Conacher, coordinator of Democracy Watch, was reported as saying "The whistleblower-protection system ... is riddled with so many loopholes and is so dysfunctional that it has to be stripped down and completely rebuilt." The Canadian integrity commissioner received 170 complaints in three years but found not a single instance of wrongdoing.

Despite these repeated failures of whistleblower laws, hope never seems to die: a new, better law is touted as the solution. But what if there is an inherent flaw in the legal route?

Whistleblowing is a challenge to the normal chain of command in an organisation. This is especially true when the problem exposed goes to the top, for example when organisational leaders have participated in or tolerated corruption. The whistleblower is highly vulnerable to reprisals from within. Most whistleblower protection measures are flawed because they keep the matter in-house, where the odds are weighted against the whistleblower.

Jean Lennane, former president of Whistleblowers Australia, said only two things reliably help whistleblowers: talking to other whistleblowers, and publicity. So why is it that most whistleblower laws do not protect anyone who goes to the media? The answer: the laws try to channel dissent inside the system, where it is least effective.

Instead of speaking out and suffering reprisals, another option is to leak information to the media or campaigning groups. Wikileaks has shown the incredible power of leaking.

Leaking has the advantage of allowing employees to stay in the job and continue to reveal information. No wonder governments hate leaking and go to extreme lengths to hunt down and prosecute leakers.

The federal government prosecuted Allan Kessing, who was alleged to have leaked a study of airport security that led to $200 million being spent on improvements. The government's treatment of Kessing sent a more powerful message to workers than any amount of rhetoric about whistleblower protection.

If Australian governments were serious about enabling employees to speak out, they would get rid of their draconian official secrets acts.

Whistleblower laws may actually be worse than nothing because they give the promise of protection without the substance. Workers may speak out without being prepared for the consequences.

My view is that workers need, most of all, knowledge and skills. Rather than trusting in some agency to protect them, they need to understand the risks they face, how their organisation operates, how to leak information, how to interact with the media, how to send anonymous emails, how to gain support from other workers and how to campaign to reform dysfunctional organisations.

Being an effective activist inside an organisation is not easy. It requires awareness, experience and networks of support. Employers and governments do not encourage this sort of worker empowerment. Unions only occasionally do.

We will know that whistleblowers are truly being supported when workers are trained in how to bring about organisational change, and when those who speak out are praised rather than attacked. Until then, it is wise to be sceptical of whistleblower protection.

Brian Martin is vice president of Whistleblowers Australia and author of The Whistleblower's Handbook and many other publications on whistleblowing and dissent. He runs a large website on suppression of dissent: http://www.bmartin.cc/dissent/.

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