Speak out if you dare

The argument for free speech

The University of Cape Town where I trained many years ago strongly apposed and criticised the introduction of apartheid.  Students protested and marched over the years.  In 1986, several years before apartheid was abolished the university teaching hospital did what was still unthinkable.  It openly defied government threats and abolished all forms of apartheid within the hospital.

Over the long years of apartheid students raised large sums each year and the student body used the money to build and to run health and other social services in the disadvantaged communities.  They were staffed by students supervised by staff.

The important role that universities played and should still play in the community, and in political debate exposing failures and challenging beliefs are stressed and kept alive in a series of lectures in honour of those who spoke out

These include memorial lectures in honour of the black leader Steve Biko who was killed by white police during interrogation.  He had been very active in students movements and he considered university staff and students to be "the vanguards of change".  It was "the particular role of universities to produce public intellectuals and to intervene in the political arena".  It is interesting to look at what universities in Western Societies including Australia are doing today. Are they criticising and dissenting?  Canadian John Ralston Saul in his Massey lecture "The Unconscious Civilisation" was critical of the way universities in Western Democracies had disengaged from their important role in society.

TB Davie was Vice Chancellor of the university during the early years when I was a student and at the time when government banned black students at white universities. He led the way while at the same time channeling student rebellion into peaceful and symbolic protests that did not result in violence from the police. He was followed as vice chancellor by a student colleague of mine. After the abolition of apartheid he was in turn succeeded by the first black vice-chancellor, a close associate of Biko and before his death a junior doctor at our hospital.  For a time she worked on my unit - a remarkable  young woman. So I have role models when I criticise!

Free speech and dissent are still highly valued at UCT although most dissenting views are now critical of the current black government. The 2015 TB Davies Memorial lecture was given by Kenan Malik a distinguished social analyst, journalist and author. Malik spoke about the suppression of free speech across the world over recent years. Democratic societies had increasingly found ways to justify limiting free speech - or more correctly censoring it. He was particularly concerned that the “organisations accross the world that had led struggles for freedom from colonialism, or the ideologies that claimed to represent the identity of the free nation, have become senile or corrupted”. 

It is interesting that, while Malik did not mention it, in the 1960s, sociologist Peter Berger suggested a historical cycle of oppressor being replaced by oppressed, who then in turn become oppressor. The apartheid movement developed when the Dutch Africaners, who had been oppressed by the British gained power.

While Malik is talking about a different history, Malik’s defence of free speech and dissenting views is particularly relevant for what is happening in Australia today.  It is summarised in the university news.

But there is more in his actual speech:

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Difficult decisions

At times, the problem you feel you must address is so important, that you must speak even though there will be collateral damage. This is particularly difficult when you have to criticise people or organisations that genuinely believe they are doing the right thing.  Clearly we all have a responsibility to expose failures, fraud and other wrongdoings and criticise policies and practices that are harmful when we encounter them. There are ethical decisions we have to make and what we do may come at a cost to us.  We may become collateral damage ourselves. These problems exist whether you are criticising politicians, government, market or individuals.

This overlap of the responsibility to speak out for society on the one hand and a desire not to harm others on the other creates a complex minefield to navigate and there are no clear guidelines. This is particularly difficult when those whom you need to expose or criticise are in positions of power or pillars of society. As big a problem is when those you are criticising don’t think they have done anything wrong or believe strongly in what they are doing. They can get very angry and many, even the courts can feel that what they are doing is acceptable. While you may see that something is wrong, it may be difficult to get evidence. It might only be found after you have exposed the problem.

The risks are that you will be attacked, your credibility destroyed, be isolated, lose your job and possibly be threatened or actually sued for defamation, which can be very costly even if you win.

The consequences

Politicians and governments will not protect you. Look at what happened to Edward Snowden (sheltering from the USA government in Russia), Chelsea Manning (in prison in the USA) and Julian Assange (founder of Wikileaks confined in the Ecuadorian embassy in London to protect him from UK police who want to extradite him to Sweden, which he believes is likely to send him on to the USA who will put him in prison). All of these people took enormous risks to expose what they considered was government wrongdoing. Whatever we may think about these issues, these people felt so strongly about what they knew was happening that they took the risk and suffered the consequences.

The Australian government is so sensitive about leaks that they have used the terrorism issue as justification for laws preserving email and telephone metadata and then accessing it when they need it. This enables them to track your movements and identify all those you have communicated with. Exposing government’s misdemeanours anonymously is now extremely difficult if not almost impossible. Many feel that while terrorism is real, the response has been excessive and this is not justified.  Those who are interested in the issues of government access and their security might like to look at this:

• Keys under doormats - mandating insecurity by requiring government access to all data and communications from the Computer Science and Artificial Intelligence Lab Massachusetts Institute if Technology, Cambridge USA

In addition, a new law prohibits anyone from exposing the mistreatment of asylum seekers in detention.  There is a vast amount of information indicating that people who have escaped violence and terrorism and who have come to our shores seeking help have been kept in conditions and treated in ways that are harmful to their physical and mental health.  There are many articles in the medical literature.  There is now a wall of silence so that we do not know what is being done in our name. 

I am particularly sensitised (a sense of deja vu) to this because I experienced the wall of silence that prevented white South Africans from fully understanding the consequences of what their government was doing to the majority of citizens during the apartheid years. In that instance it was not terrorism but communisim that was beaten up out of all proportion to the actual threat it posed in order to justify censorship.

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An obsession: Keep everything away from the public

Paul Farrell, a journalist with the Guardian has reported on Asylum seeker issues in Australia.  One of his reports Australian ship went far deeper into Indonesian waters than disclosed published on 17 April 2014, described the penetration of Indonesian waters by an Australian vessel and the subsequent whitewashing by an inquiry.

The Federal police it appears, were instructed to track down and prosecute his informant and then went to extreme lengths to do so by tracking Farrell. Farrell managed to secure the police documents under FOI although they had been heavily redacted.

The latest press report on this reveals that the police had no hesitation in tracking his metadata and prying into his private life even though he was not guilty of any crime.

Because of the outcry about police accessing this sort of information to invade our privacy, a law was finally passed in October 2015 requiring a warrant.

What all this does reveal is the paranoid obsession that governments in Australia have in suppressing information that would tell their citizens what they are actually doing in their name and crushing anyone who knows and is so disgusted at the deception that is practised, that they leak the information. This is indirect censorship and it is happening now.

The USA: It is not just Australia. The FBI in the USA tried to force Apple to write a special program that would allow them to unlock iPhones to see what was there. They used the pretext of one terrorism case, but they are human and there would be little chance of stopping them from prying into anyones private life and finding an excuse to do this.

Apple challenged this in court and the government finally backed away. It appears that the government employed hackers to find a security loophole that enabled them to crack the code and protect the contents from automatic erasure and so to get into the phone of the terrorist they were pursuing. The questions is whether they will tell Apple so the loophole can be fixed so that Apple's clients are protected or will they continue to use it to get into other iPhones. Will it be used to track down whistleblowers like Snowden and Manning by accessing reporters iPhones.

• FBI–Apple encryption dispute Wikipedia, 13 April 2013
• We now know how the FBI unlocked the San Bernardino shooter’s iPhone: hackers www.vox.com 13 April 2016
• FBI paid professional hackers one-time fee to crack San Bernardino iPhone Washington Post, 12 April 2016

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Legal complexity

Gillian Triggs, an eminent law professor and president of the Australian Human Rights Commission suffered the full blast of angry criticism from Tony Abbott and his ministers when her commission's report exposed just what was happening to innocent children fleeing tirany and brought to Australia for sanctuary.  She stood her ground and refused to offer her resignation to Abbott who was demanding it.

An article Right to freedom of speech cannot breach employment contract written by Gillian Triggs was published in The Age on 1st May 2015.  The person involved in the court decision which Triggs used to make her points responded with an open letter to her. This pointed out flaws in what Triggs had said and gave more information showing how truly complex and unresolved this issue was.  These articles, in which even the president of the Australian Human Rights Commission was hopelessly confused, speaks for the complexity and ambiguity of our laws in this area. Not even the lawyers know when criticism is valid and when the courts will consider it libelous.

Choice magazine and legal threats: The readiness with which businesses will threaten lawsuits or even to prosecute them if they think they can shut down criticism is revealed by Choice’s CEO. He describes the legal and other threats Choice has to face when it reports out to the public on its assessment of products and services.

• Without fear or favour: We'll continue to stand our ground when consumer interests are at stake - even in the face of legal threats An update from our CEO Alan Kirkland Choice magazine (Sep 2015)

There is some more about the complexity of our defamation laws and the threat they pose to free speech at the link below.

• Surely defamation is the real threat to free speech ABC News, 3 Apr 2014

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Speaking out in Aged Care

The late Jean Lennane, a past president of Whistleblowers Australia wrote a landmark paper describing the fate that awaits those who speak out for the public and of the courage required. It is worth reading.

What happened to Snowden, Manning and Assuage created headlines across the world and others like Andrew Wilkie attracted local attention. But these are only red flags to what happens.  There are many others in government departments, working in companies, in community projects and even the churches who are targeted and lose their jobs. Nurses who speak out about failures in aged care lose their jobs and no one else will employ them.

There were vast numbers of examples in health care in the USA.  In that country whistleblowers receive 10 to 15% of any moneys recovered making the risk worth while.  The massive frauds in the USA were all exposed this way making some whistleblowers very wealthy.  It has been such a problem in the National Health System (NHS) in the UK that a damning inquiry into intimidation was undertaken.

• Climate of fear leaves NHS whistleblowers 'on the brink of suicide' says report but campaigners warn new measures to protect workers 'don't go far enough' Daily Mail, Feb 12 2015

There have been a large number of press reports and television programs describing problems in aged care. These started in 2000 only 3 years after the system was turned into a marketplace. These reports have exposed failures in care and failures of the Accreditation Agency to detect substandard facilities. The vast majority of these reports are based on or consequent on tip-offs by whistleblowers, either nurses in the system or the relatives of residents. Staff who tried to complain to their superiors had been ignored or already fired. Others were fired after speaking out or going to the media.  They were seen as trouble makers and struggled to find another job.

Examples:

• Death in a five star nursing home ABC Radio National 21st September 2014
• I am sorry 'Mary' I could not help you Nurse correspondence to Aged Care Crisis
• Ashmore Retreat nursing home has been sanctioned by the Health Department and put under strict government supervision Gold Coast Bulletin, 9 May 2014
• Disabled were abused in house of horrors and governments covered it up - The Age, 10 April 2015 (an example from disability services)
• We covered up abuse: aged-care manager The Australian 21 February 2015 (Subscription required)
• Eileen Chubb (Video) from Whistleblower Interview Project on Vimeo. (an excellent illustrative case from the UK. (The company exposed also operates in Australia)

In a 2016 example the Ulladulla Times tells the story of two staff who struggled to expose what was happening in a not-for-profit nursing home. One of their complaints was that a video about “Good Death” was shot and published without getting the permission of the elderly residents who later died. The dispute escalated and both were fired and then later threatened. They were finally offered a settlement containing a gag clause which would have prevented them from speaking out on behalf of the community. They claimed that multiple cover ups had occurred. They took their case through multiple regulatory bodies and were supported strongly by local politicians.

One indicated that he was “offered a settlement, however the terms were unreasonable and I would have been gagged.” He could not “live with my conscience if I accepted that and their breach of trust.” and “I love this community and want to be able to feel free in this community and continue to have free speech.”

Both scoffed and were “furious over what they allege are multiple cover-ups”.  They indicated the company “preferred to bury the problem they raised, victimise and discriminate against them, then dump them”.The second whistleblower also rejected a confidentiality agreement “along with the company’s cash offer of $6300, despite its threats to pursue him for legal costs”.

A third staff member “resigned in frustration “ and accompanied them when they met with the federal Minister for aged care.

The Aged Care Complaints Commission finally investigated and the two were vindicated. They have been paid some money they were owed and are still pursuing the company for further compensation.

The story unfolds in articles by the Ulladulla Times on 11 Feb 2016, — 22 Feb 2016, — 24 Feb 2016, — 25 Feb 2016, — 2 March 2016 and 22 June 2016

Difficulty for families: One of the main barriers to families complaining, is the fear that the resident whose mistreatment was complained about will be targeted as a result of their complaining. There is much to suggest that this sometimes happens. Those who have felt particularly strongly about their experiences have persisted. Some have been threatened with lawsuits and a few of these have refused to buckle.  They fight on, but politicans and the public are conveniently deaf.

Nurse academics from university departments have written theses and articles on their findings. They have accepted their responsibility as academics and spoken out about what they have seen and found. Instead of addressing their findings and criticisms, like Gillian Triggs, they have been attacked, their research criticised and their universities asked to discipline them.

Examples:

• Academic scaremongering with unsubstantiated claims ACSA Media release, Aug 2014
• Update on the recent Aged Care Publicity (ACCS - Snippets - Volume 7 Issue 2 - Feb 2007)
• Productivity Commission Inquiry - Caring for Older Australians - evidence of Dr Bxxxxx: Transcript of Proceedings page 1371 (Canberra, 5 Apr 2011)
• DR Mxxxxx Bxxxxx: PREVENTING ELDER ABUSE IN AGED CARE Radio Adelaide Digital 21Jun 2016 (Dr Bxxxx describes how she was hounded and threatened when she spoke out)

My experience is that when there is so much smoke, there is a larger smouldering fire or to put it another way this is only the tip of the iceberg, a red flag to a deeper problem. Most of us have families and responsibilities, lack confidence or are fightened of what will happen to us.  Those who speak out include the ignorant, those without responsibility to dependents, those who have courage and more commonly those whose adverse experiences drive them to act in order to protect others from what happened to them. But too often when whistleblowers are vindicated, true believers claim each example is an exception, or else that it is a media beat up.

What the persistent complainer might face

Dealing with difficult families: While there are difficult people all too often the person who complains is seen as the problem and not what they were complaining about.  He or she is usually very anxious, sometimes angry, and is seen as difficult.

Here is the advice given by a lawyer talking to providers and advising them what to do with difficult families, presumably those who won’t go away!  Consider what is happening when you are not there. Be warned!

Strategies

• Be ready – have a policy or process agreed and understood by staff
• Keep records of issues
• Be ready to keep Department informed of emerging issue/complaint
• Change dynamics of who deals with family member – not always DON or senior executives.
• Use friendly/trusted third party
  • Medical opinion
• Use unfriendly third party
  • Lawyer letter
  • Conference with unfriendly – give them ‘bad cop’ someone else to hate, bad news messenger
• Follow on
  • Maintain business line and procedures
  • Don’t compromise obligations to other residents
  • Don’t set precedent
• Be clear as to rules and obligations of invitees onto premises
• Exercise rights as owner of premises–refuse entry to people who create a nuisance or disrupt your business
  • Visitors to premises including guardians, family members, attorneys, though empowered to act for residents, must abide by your rules.
• Be ready to go to Tribunal
• Be ready to inform authorities if abuse or criminal conduct
• Be ready to move the resident to another provider

Source:  Dealing with difficult families – rights, obligations, strategies: AAG & ACS REGIONAL CONFERENCE, DUBBO: 7 April L 2016

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Culturopathy

I have coined the term "culturopathy" for a set of beliefs that are so important for the well meaning people who have built their lives using them that they find it almost impossible to find fault or challenge them. These beliefs fail to achieve what is intended and worse still often cause harm in some cases even extensive loss of life.

A key characteristic is reluctance to collect or acknowledge information, tight control of the information that is released and supression of information that challenges these beliefs. When information is exposed or when there is criticism the response is disbelief, anger and ridicule. Often they adopt the strategies described on this page and find ways to justify this to themselves.

There is a wide gap in perception. Those who identify with and are leaders see things very differently to those who criticise. They usually find some derogatory term to describe their critics. This is called “labelling” and it absolves the person from the need to consider the evidence and arguments of their critics.  The absence of acurate data allows this to happen. The criticisms usually but not always have some substance.  If accurate information can be collected and proponents can be induced or forced to debate accurate information then this often leads to resolution.

There are reasons why we all respond negatively to criticism.

It is important to understand that even when people respond to criticism unreasonably they are not evil people and that this is the way we all behave. We defend because its hardwired into our brains. Its simply being human. I call this behaviour “responsive” to contrast it with a “constructive” response, one that addresses the issues and readjusts thinking.  We probably all behave defensively at times in our lives.  I certainly have.

Reflecting on culturopathy: Professor Linda Shields, a nurse became interested in the Euthanasia of children with disabilities by doctors in Nazi Germany.  This was part of the Eugenics program where anyone with a disability was thought to threaten the genetic future of the master race. What Shields found worried her. 

She found that the nurses who participated and helped the doctors kill these children, had no sense that they were doing the wrong thing. None objected. She asks whether we would have done the same thing had we been there and been subjected to the same propaganda.

The unasked and unanswered question is whether we could in fact be behaving in the same way ourselves now?  In the face of evidence of harm we are subjected to the continuous and repetitive blast of political rhetoric about asylum seekers.  We get a regular barage from politicians and from websites beating up our aged care system.  This drowns out the complaints.

For a more recent example, look at the way in which the CIA and the US government including the president, accepted and justified the "rendering" of unconvicted suspected terrorists to foreign countries where they tortured them.

• Secrets, Politics and Torture: The ghosts of the CIA's controversial interrogation program ABC Four Corners, 17 August 2015

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The Community Aged Care Hub

As outsiders, we have no ethical choice but to criticise and confront when we see people being harmed. Those we criticise will instinctively dismiss what we say and respond defensively.  They are unlikely to willingly change. The only way we are going to be able to engage is to force the issue until they have no choice but to engage. It is very important that once that is accomplished we switch from criticism to constructive engagement with issues and solutions and draw those we have criticised into that process.

The proposed hub is intended to create a context where people can be brought to confront the consequences of what they are doing and then see what others see in a sympathetic friendly and constructive environment. Information will be collected and discussed.  Unless beliefs are too deeply entrenched responsive behaviour can be changed and become constructive. It is very important though that the proposed hub be in a powerful enough position to force believers to confront what is happening and if they are unable to do so then take the decision to remove them from the sector.

It is worth noting that the original black leaders in South Africa including the black consciousness movement understood all this well. I discussed these issues with some at the time.  Once they had created a situation with sanctions and riots that forced the government to talk to them they engaged in discussions that created a context in which they could work together to both acknowledge the problems and become constructive in addressing them. The truth commission was one example. People were pardoned for their actions under apartheid if they were open and honest about what they had done.  This does not mean that all problems were solved, or that subsequent leaders have shown as much insight.

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The Ostrich phenomenon: Burying your head in the sand

One of the big problems for the freedom movement in South Africa under apartheid was that so many of the disadvantaged and exploited “non-white” groups simply ignored the arguments for change and continued to think in the master/servant colonial way. They accepted the status quo as what God had designed. They considered that that was the way the world was, and even supported the white government that was responsible for discriminating against them. It was particularly so among the older generation and this sometimes caused disputes within families. It was fascinating to talk to both sides of this.

This can be understood by attributing it to the instability and angst caused when the established patterns of society that have given stability and meaning to people’s lives are attacked and challenged. Despite their disadvantaged status many found this instability very challenging. In this situation many people simply switch off and disengage with issues, particularly if they feel impotent and powerless. The black consciousness movement was a response to this and a strategy to deal with it. This example illustraes the relevance of the quote above.

The quote comes from a paper by Lissa Johnson, a clinical psychologist. The paper addresses this same issue in Australia within a more detailed psychology framework than I have used.  The article quotes research to show when and how it happens.

The interest in this paper: This is a long paper in which Johnson looks at two issues. These are global warming and democracy.  There is a vast amount of evidence about climate change and also describing the recent inroads made into democracy in Australia.

The issues have arisen in a community disillusioned with politics, at a time when there are serious destabilising problems in the global marketplace, and when we are threatened by destructive global ideologies that need attention and considered debate. Citizens feel powerless to influence events that are vital to all our lives. Johnson makes her point about victims supporting the exploiters using the low level of acceptance of climate change and the surprisingly low number that believe democracy is the best form of government - figures revealed by surveys of Australian citizens.

If this sort of thing interests you or you are pushing confronting ideas in the community, then the analysis of why and how this occurs is of interest. The theory and explanations are much further on in the paper, but worth reading. She makes some suggestions for dealing with the problem.

Relevance for aged care and the proposed hub: The interest of this article for aged care is the extent to which the community has disengaged from aged care issues in spite of the extensive publicity, the unhappiness of some families and the comments by nurses.  The community has been largely excluded and feels powerless. The elderly, those most affected, have grown up and built the lives they are proud of - their identity - within this market system and understand the world this way. They are likely to find criticism destabilising and upsetting.

While this phenomenon will make it more difficult to get support for and establish the proposed aged care hub, once established the hub will provide a venue within which citizens can be effective, exert control and have influence - all factors that studies have shown are important for re-engaging the community and countering this phenomenon.

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Politicians hiding their past

An interesting development in the digital democracy sphere is the battle between those who want to hide information on the internet that they don't want anyone to see and those who believe that there are things that politicians in particular are not entitled to hide and should be preserved.  Citizens believe that they need to know the sort of people they are going to elect to parliament. They want to know what they have said, what they have done and who they are.

There is already a large industry that is making money by helping people hide information on the internet. They do so by finding ways of removing it or if they can't manage that then burying negative material under a barrage of positive material so that the negative material does not come up on web searches.  If you have the money you can blot out your past.

Since 2012 an international non-profit group called Politwoops has been tracking down archived copies of material that US and other politicians across the world have deleted to hide their pasts. They shone a light on politicians conduct by posting links to hidden archival information that the public needed to know about on Twitter.

This was seen as an important and valuable means of putting some sunlight on things that needed to be known. After 3 years in operation in May 2015, Twitter closed down their US activities (run by the Sunlight Foundation). In August they closed down the remaining 30 services around the world. This non-profit service was considered by many including journalists, as a valuable resource.

No one has closed down the company helping those who have enough money to protect their reputations when they have done something awful but the group of citizens stopping politicians from hiding theirs were closed down globally. There are of course, good reasons for closing down unfounded false and damaging information, but this silent censorship of the internet is an interesting dilemma that needs judgement and not market forces and political pressure to resolve.

• White-washing your online history  The Age, June 20, 2015
• Sunlight Foundation  Wikipedia
• A eulogy for Politwoops, killed by Twitter’s confusion over privacy, politics, and journalism Niemanlab June 4, 2015
• Why Politwoops mattered Daily Dot 23 June 23, 2015
• Twitter cuts off Diplotwoops and Politwoops in all remaining 30 countries Open State Foundation August 23 2015
• Twitter shuts down 30 international versions of Politwoops Sunlight Foundation Aug 28 2015

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Government secrecy and whistleblowing

There has been a rapid loss of transparency with more and more secrecy in government, a crack down on whistleblowers and a renewed effort to track down and prosecute anyone who leaks information to the press by investigating journalists who have done nothing wrong in order to track and identify their contacts.

After promising more open government and condemning the tyranny of the majority, Turnbull has done nothing to change the situation - or perhaps his party has not let him. The government rides roughshod over our citizens and their concerns by using extreme forms of censorship.  As citizens we are kept in the dark so that we cannot see what Turnbull and his party are really doing. It seems that Turnbull's speech, aligning himself and his views with the Magna Carta, were no more than empty words to create an image which would endear him to the public.

The Human Rights Law Centre report Safeguarding Democracy released in February 2016 is a damning indictment of our government's determined attempts to increase secrecy, persecute whistleblowers and emasculate civil society as it rides roughshod over the interests of citizens often in support of business.

In its introductory article about the report the Human Rights Law Centre identifies attacks on whistle blowers and press freedom, attacks on advocacy by community organisations, attacks on peaceful protest, and undermining institutions and sidelining the courts as the key areas where democracy was being undermined.  It calls for “reversing the regression”.

• Political parties urged to halt the erosion of Australia’s democracy: new report Human Rights Law Centre 23 February 2016

This is a global phenomenon in Western democracies and not isolated to Australia (see also criticism by Joseph Camilleri in the Age 29 Dec 2014). The plight of whistleblowers and the inadequacy of their legal protections receive considerable attention in the Human Rights Law Centre report because we have become increasingly dependent on whistleblowers for information about what our government is doing.

There is a review of government Whistleblowing being conducted during 2016 and is due by 15th July 2016. The submissions to the Statutory review of the Public Interest Disclosure Act 2013 have been published. The majority of these come from government departments or agencies that have to handle the complaints made by whistleblowers. This seems to be a concerted effort by the bureaucracy, perhaps supported by government, to wind back the whistleblower protection laws passed by the Gillard government. They “all called for changes to narrow the definition of ‘disclosable conduct’ under the scheme.”

Submissions from whistleblowers and from the Human Rights Law Centre take a very different view pointing out that the current legislation is not working to assist or protect whistleblowers and that it should be extended. The worry about reviews like this which examine government conduct, is that it is the government that appoints the commissioner. The Guardian has written about it.

When words become a substitute for what they represent

The extent to which words become a substitute for the real thing when the very opposite is happening is well illustrated by a report of the contribution from the health department at an innovation conference.

You can’t have innovation and innovative thinking when you hide information, won’t confront your failures, and then muzzle dissent and criticism. This is what government and industry have been doing for years and its getting steadily worse and not better.  The health department and the minister it advises need to challenge their own thinking and look at sensible innovation. It should consider the sort of changes suggested by the proposed aged care community hub and not be restricted by its own paradigms.

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Workplace whistleblowing

Employees

Dissenters and whistleblowers who are employed by an organisation are subjected to all of the well recognised strategies and are attacked, isolated and stigmatised. Sooner or later, grounds are created to fire them.

The official line about legitimate whistleblowing is that you should take the matter up with the company first. Most companies are now required to have mechanisms through which complaints can be made. This can be very hazardous for someone who later wishes to persevere when nothing is done about the issues she raises.

The potential whistleblower will be wise to carefully assess the culture of the organisation and their track record in dealing with complaints before they do so. It can simply function as a means of identifying potential exposure and dealing with the threat.  If it is possible to remain anonymous it is often wiser to collect information and take photographs then find a good investigative journalist and leak. Be careful and cover your tracks. Some companies (eg. Commonwealth Bank) will hire private investigators to track you and investigate or even prosecute the journalist simply to find out who you are so they can deal with the continuing threat you pose.

Customers and others

If the whistleblower is not an employee, then all of these options are not available to the company but they can still respond angrily by denying and by attacking the whistleblower’s credibility and even sanity.

One of the most common strategies by corporate and legal interests is to threaten lawsuits and demand retractions and withdrawals. If the information is sufficiently threatening or damaging and you refuse, many companies may lodge a law suit and spend many thousands of dollars prosecuting you even when there is little hope of success, but with no intention of actually going to court if you are not intimidated into meeting their demands.

These are known as SLAPPs (Strategic Lawsuits Against Public Participation) and the advantages of this are that the whistleblower will usually retract and apologise. Even if the whistle blower refuses, the company is able to deny and contest the information by claiming they are suing and they believe they will be vindicated. This creates doubt and neutralises the allegations made and the data supplied. By dragging out the case and employing delaying tactics, they can keep the matter out of court for several years by which time the issues have passed and the information has lost its relevance. If the information the whistleblower is providing is sufficiently damaging, then it is worth while for the company to do this.

Example: I know of one case where a massive multinational health care company spent probably well over $100,000 in legal fees procrastinating and delaying to keep the defamation action they had taken against a whistle blower (who tried to force them to court) active.  After withdrawing the action and paying costs, it commenced another action in a second country which they also eventually withdrew. The damning information had been supplied to multiple countries. During the years that this was going on they were able to negotiate an orderly withdrawal from their international operations and re-establish themselves in their home country - the USA. So for them, the money was “well spent”.

While the whistleblower was successful or at least contributed to their international retreat, the company survived in the USA by making claims to a new integrity even though those implicated in matters the whistleblower had exposed were now in senior positions. They continued their harmful business practices and it was another 10 years before these were exposed once more.  Incredibly they still survived! A close association with government is a good investment. The company had always had political links and been a large political donor.  Its CEO was one of George Bush's "Pioneers" - a group who had pledged to raise over $100,000 for his presidential campaign.

Strategies

The risk for the whistleblower who fights back is that the company's defamation or other action against them is taken to court and is successful - its like playing Russian Roulette. The risk for the company, particularly if it does not have a valid course of action, is that the whistleblower will fight back publicising the action and in gaining publicity around the action itself, the company may get much more damaging adverse publicity than if it had simply let the matter ride and allowed the publicity to pass.

Comments on the internet and in social media can be defamatory but it has altered the landscape and opened up opportunities for the whistleblower wanting to fight back and get support when threatened. The focus and the pressure can be turned back on to the company. This is known as the 'Streisland effect'.

The whistle blower needs to be careful in what they say themselves when blowing the whistle and then if threats are made, carefully assessing whether the company has a valid legal case and whether they will actually proceed to court.  Whatever the outcome, this could still be so damaging that they would decide not to.

The object of whistle blowing

It is important to realise that whistleblowing is in order to address a system failure that threatens others. It is directed to the public good. The objective is to address issues, make changes and protect the community.  This may mean putting a company out of business because re-offence as happened in the US company and in the Commonwealth Bank, is a real risk. We may need an illustrative example to deter others or to provide a focus for debate.  Whistleblowing is not about vengeance, retribution or financial compensation, although a whistleblower is entitled to seek recompence for harm suffered. The law may not protect you if you are simply vengeful and wanting to cause damage.

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Getting help and advice

Defamation law for actions taken by for-profit corporations differs from that which applies to not-for-profit organisations and to individuals including the office bearers of for-profit organisations. The law passed in 2006 did not address the complexity introduced by free market changes. Many not-for-profits now emulate for-profits and are equally commercially aggressive. They consequently don’t deserve the extra protection that the legislation gives them. Additional information is below.

•  The Uniform Defamation Laws Reform 2006 Stephens Lawyers & Consultants

Whistleblowers Australia can offer some advice and support - a good idea to get up to speed early. There is extensive international and Australian information here.

In 1996, Jeane Lennane founder and president of Whistleblowers Australia wrote a landmark paper What happens to whistleblowers and why describing what happened to those who exposed problems in our society.

Professor Brian Martin, a past president of Whistleblowers Australia has a special interest in dissenting views. He has a website Suppression of Dissent. His site contains information and advice for those wanting to speak out to expose wrong doing or to criticise something that is wrong - for the good of the public.

• Suppression of dissent: documents   (large volume of international and national links)

More specific information

• SLAPPs -- Strategic Lawsuits Against Public Participation: Coming to a Controversy Near You (published in Current Affairs Bulletin, vol.72, no. 3, Oct/Nov 1995, pp.22-29)
• Making censorship backfire (published in Counterpoise, Vol. 7, No. 3, July 2003, pp. 5-15)
• How to make defamation threats and actions backfire (published in Australian Journalism Review, Vol. 27, No. 1, July 2005, pp. 157-166)
• The 'Streisand Effect' and Censorship Backfire (published in International Journal of Communication 9(2015), 656–671)

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