A Conversation with an Expert on Whistleblowing
Brian Martin is a social scientist at the Faculty of Arts School of Humanities and Social Inquiry at the University of Wollongong in NSW, Australia. He was president of Whistleblowers Australia from 1996 to 1999 and remains their International Director. He received a PhD in theoretical physics from the University of Sydney in 1976, and his interest is in the research of the suppression of dissent.
He is the author of The Whistleblower's Handbook: How to Be an Effective Resister, which is a practical manual for people who speak out in the public interest. It tells how to assess options, prepare for action, use official channels, build support and survive the experience.
Suppression Stories describes experiences and insights from years of studying and opposing suppression of dissent. The book covers patterns of suppression, the problem of defamation, peer review, formal channels, the role of media, difficulties in opposing suppression and advice for dissidents. It uses numerous case studies to illustrate suppression and methods of dealing with it.
Interview with Brian Martin
Newsbud: Have you spoken to any government officials about whistleblowing?
BM: The dominant approach to whistleblowing in governments but also in the media is to assume that whistleblowing legislation is the solution. Namely, whistleblowers are being attacked, therefore we need big laws to protect them, and the trouble is, the laws don’t work. They work rarely, but they usually don’t help and in many cases they give many people an illusion of protection, so they’re actually worse off than before, because if you didn’t have any official protection, then you’d be more careful about what you’d did. My general approach is to encourage people to develop skills and understandings to be effective when they speak out.
Newsbud: How did you get started doing this?
BM: It started back in the late 1970s when I first got interested in what I call “suppression of dissent”. I found out about ten cases of environmental scientists and teachers who came under attack because of their views. Environmental views doesn’t sound very radical these days but back then that was considered to be fairly threatening to the establishment, even inside universities. There was this pattern of people who had spoken out, critical of some dominant interests. They’d come under attack, have their tenure denied or thesis blocked, or they’d lose their job. I started getting interested in that whole area, reading this stuff about whistleblowing that was coming out in the U.S. over time.
As I wrote articles about it, people would contact me and they’d send more information about their own cases so I kept learning. That went on for about 10 or 15 years, and then in the early 1990s, Whistleblowers Australia was set up, which is a support organization for whistleblowers, primarily made up of whistleblowers themselves. I went along to some of the meetings and heard lots of stories, acquired a greater understanding, and then in 1996, I became the president. Like a lot of organizations, if you’re the president, even though you’re not in that position anymore, people still assume you know all the answers. More and more whistleblowers are contacting me and it’s like a broken record: I’ve heard the same story over and over again. It’s that “I saw a problem,” and this could be in the churches, corporations, public service, teaching, military, police, didn’t really matter which occupation, they saw a problem, they reported it, usually to the boss or somebody else in the organization, and then reprisal started.
But then here is the significant thing: then they started going to other people to try and find a solution. They’d go to a grievance committee, they’d go to the boss’ boss, the board of management, or they’d go to the external bodies, an auditor general, to parliamentarians, sometimes they’d go to courts. The story over and over was that it didn’t help, sometimes they were worse off, so they’d go to the anti-corruption commission in the state and then the commission would find out the other side. They’d contact the whistleblower's employer and through this, the reprisals would get worse. That’s when I came to the conclusion that whistleblowing legislation wasn’t really helping.
All of these official channels, formal procedures, they’re not helping very much because they’re set up to give the appearance of providing justice. In practice, the whistleblowers did get treated very badly. It wasn’t just my subjective opinion, I mean, obviously I’m seeing a biased sample, I’m talking with the people who had problems, because of those who spoke out and everything was fixed... well, they wouldn’t be bothering to contact Whistleblowers Australia if that were the case. An academic named Bill de Maria at the University of Queensland did a study where he surveyed hundreds of whistleblowers and found out that they’d been helped by various agencies’ appeal procedures, less than 1 out of 10 times. There was research to back up all of the things I’ve been seeing, hearing, and probably by now I talked to many hundreds of whistleblowers. If you stay in the field for years, and if I’ve talked to one every two weeks, then in 20 years I’ve talked to 500.
The fascinating thing is that many whistleblowers are totally isolated in their workplace. Many of them have came to us in the early days before there was a lot of media attention on this, they thought they were the problem because everyone was telling them, “You’re the problem. Your work’s no good, you’ve got psychological problems,” and so forth. They’d get sent to psychiatrists. Then someone would come along and say, “Oh, you’re a whistleblower.” They’d look up online or in a telephone directory, “Whistleblowers Australia”, contact someone there.
They’d come to along to meetings that were in Sydney every week. I went often enough to know the certain thing that happens. It’s the first time they’ve ever been affirmed in what they’re doing, because they talk to other whistleblowers which is, psychologically, incredibly powerful. Even just talking to someone like me, I’m more a dissident than a whistleblower, talking to someone who’s sympathetic or understands what’s happening, that makes an incredible difference to whistleblowers. That’s the encouraging part of all of it. The discouraging part is that all of them had come to us after they had blown the whistle, after they had suffered reprisals, after they’d tried some of the official channels that didn’t work. We’re the last resort. Things are changing very slightly now because we’re getting more people contacting us before they speak out.
Newsbud: How do you get to whistleblowers before the aftermath?
BM: I don’t think it’s us, per say, I think it’s a process by which whistleblowing has become mainstream, it’s in media coverage. A few decades ago, it was a sort of unusual thing, but now whistleblowing stories are very common and the media tends to portray whistleblowers as good guys - not always, sometimes they are on the attack, but in many cases there seems to be a courageous white knight against a corrupt organization because it’s a good story. The second thing that helps whistleblowers is publicity which helps as far as the official channels go. More publicity means whistleblowing has a better reputation, if you like. Not inside the organization but in the general population. The organization goes on the attack but if the message gets out to a wider audience, those people tend to be more supportive. Also, because of Bradley Manning and Edward Snowden and WikiLeaks, leaking has become much more well understood and therefore more people are thinking about this beforehand, so we get a few more people contacting us before they speak out.
Newsbud: I’m sure it keeps you busy.
BM: Whistleblowers Australia is entirely voluntary, our annual income is less than $5,000, just from a very small membership, a few donations, so we cannot actually advocate on behalf of whistleblowers, unlike say the Government Accountability Project, who they have lawyers and take up cases. We don’t have the resources so we try and help people help themselves, give them an understanding, point them to resources, suggest contacts, that’s very valuable, and we do what we can in those circumstances.
Newsbud: How does defamation law work, how does it infringe on free speech?
BM: One of the first things I did when I became president of Whistleblowers Australia is prepare a leaflet about defamation and free speech, because many whistleblowers get threatened - that they’ll be sued, they’ll say something about the organization or individuals and so defamation law -- that’s libel and slander -- is designed to protect reputations, but it’s often used in practice to silence people. Being threatened with the defamation actually means... people say, “I’m not going to say anything because they might take me to court.” An actual court case is extremely expensive, at least in Australia. You can spend tens of thousands of dollars defending, and in the U.S. there’s a phenomenon called SLAPS, or Strategic Lawsuits Against Public Participation, which is when corporations or police or various groups take legal action against citizens who are just speaking out as a means of silencing them.
SLAPS were then identified as a major threat to free speech, and the most common legal action taken is defamation. That’s in the U.S. where there are constitutional protections for free speech. In practice, things aren’t so good, but in Australia there’s no constitutional protection for free speech and the defamation laws are in many ways worse than the U.S., much more harsh penalties and so forth. So they’re one of the serious things to be used against whistleblowers, and so I wrote this leaflet and it turned out to be the most highly downloaded thing I’d ever written which is amazing because there a lots of people out there, they don’t so much need to know the legalities of it, but they need to know the practicalities of what you do when someone threatens you with being sued for defamation.
Newsbud: Are there any whistleblower cases that people haven’t heard of?
BM: There’s lots of them, actually. If you look at whistleblower cases, you can analyze them in different ways and classify them, so they could be by the occupation, be it teaching cases or police cases, or you could think about the scale of how deep the abuses are. You’ve got cases involving billions of dollars. There’s famous ones in the US: Ernest Fitzgerald, one of the pioneers, who wrote about waste in the Pentagon. There’s cases in Australia like that and another way to look at it is to say, is there a particular type of case which illustrates a principle or a significant aspect about whistleblowing?
One of our members developed a set of criteria specifying, “What’s a whistleblower case of national significance?” and shows something about the failures of whistleblower laws or about the need for investigative powers. Those cases are not so much the case itself as significant - although many of them are - but that they illustrate some wider principle. Then we kept gradually increasing acceptance of the idea in Australia that whistleblowing should be encouraged, but so far the governments have not introduced the equivalent of the False Claims Act which you’ll find in the U.S. They don’t want to pay any whistleblowers. Just to comment on one aspect the way the government deals with whistleblowing is starting in the 1990s, the various states, there’s 6 states in Australia, two territories and the federal government. The various states and federal governments would consider setting up whistleblower law, which they did, and they’ve all got laws now. They never consult with whistleblower organizations when they do it - they just go set this thing up, and so the implication that I draw is that they want to have the appearance of protecting whistleblowers but without the substance.
We have a whistleblower law on the books so everyone thinks it’s all okay, but whistleblower laws are almost never used against employers who take reprisals, they could be but they’re just never implemented. We’ve got these things on the books and they’re supposed to protect people but they don’t actually work in practice. Groups have been trying for years to get the governments to take action. The typical scenario is you get somebody in the workplace who speaks out and there’s a whole pattern in Australia where, in New South Wales, the employer would send the employee to a psychiatrist, and they’d send to them to this standard organization which classifies the person as insane. They dismiss them, they fire them on that basis: there’s dozens of cases like this. The trouble is once you’re unemployed you have to go to court to try and invoke the law. That’s incredibly expensive, especially if the organization is willing to spend hundreds of thousands of dollars defending. It’s rigged against the whistleblower, so we say it’s better to go public. Get your story to the media, put it on a website, on social media, that will have an impact, and we get a few more now who see the wisdom of seeking publicity.
My guess is that no one’s ever done the research to have a full understanding of the spectrum of whistleblowers, and why they do it, what their motivations are, the circumstances, and the reason I say this is because I’m a social researcher, and I’m quite aware of the limitations of our knowledge. We only come across some whistleblower cases, but consider those who get targeted and they either just go silent and stay in their job, get penalized in some way, or they lose their job but they leave voluntarily. We never hear about it, nobody ever hears about it because they don’t allow any publicity. We don’t have the full knowledge about the range of even how many whistleblowers are out there - that’s the strange thing, there are thousands in Australia, but no one knows for sure how many. There’s also the question of, is it a whistleblowing case, is it a valid concern, or is this a dysfunctional employee who’s claiming to be a victim?
We don’t have the investigative capacity to judge all these cases. Some of the people who contact us are obviously deluded in some way because they think there’s a microprocessor embedded in their brain and controlling them, etc. Those don’t make any sense to me. In many others instances, it sounds like a wild case and I don’t know how much is imagined and how much actually happened. Others fit the pattern: this is a standard case, it ticks all the boxes. We don’t even know the full spectrum, but then I’d say roughly half, it might be a quarter, it might be three quarters, but roughly half of people who become whistleblowers never thought about it. They thought they were doing their job! It’s like the accountant who sees a discrepancy in the figures, and so he says, “Here we go, tell the boss he’d better check this out here” but turns out that the boss is cooking the books, so they’re targeted. They weren’t doing it on a conscious basis, they were just doing their job. You might say they’re less receptive to others because they didn’t think about the fact the boss might be in on it, but I don’t think the evidence is there to say how they’re different from other people other than the circumstances.
There are some others from which everyone knows it’s risky to speak out, but a few do. That’s a different story, and those are the ones you might say they’ve got a particular ethical position, but there’s not much evidence to show how you can predict someone’s going to be a whistleblower. I say this with some confidence, because if there was a way to do it, lots of employers would be screening people who they thought would be whistleblowers. They haven’t developed a test to try to identify them early-on, so that’s a good sign, that we don’t know for sure what motivates them, but a lot of it is circumstance. A combination of personality, opportunity, and you might say a certain position within the organization, so you’re high enough up so you have access to things, yet not so high up that you get totally incarcerated, totally adapted to what’s going on and supporting it. That’s an area that deserves more study.
Newsbud: How different would an average day be for you in another country in your position?
BM: Whistleblowers Australia is not unique, but it does have some special characteristics. I looked at whistleblower organizations in several different countries and the U.S. has a range of them, but there’s no Whistleblowers United States, no organization made up of whistleblowers to support whistleblowers across the whole country.The U.S. is a bit different but also the U.S. has the capability of actually providing legal assistance to some whistleblowers -- you’ve got the False Claims Act. You have lawyers running whistleblower cases. Australia’s has 1/15th of the population of the U.S., it’s got less population than Texas. If we became Whistleblowers Texas, that would be the equivalent. There is Freedom To Care, Whistleblowers UK, there’s a group in Germany, there’s individuals in various other countries.
It’s tough to say, there’s not really many that have maintained themselves over a period of years, decades, and with whistleblower support organizations, my assessment is it’s very difficult because whistleblowers are not an easy group of people to try and bring together. They’ve got diverse types of people, ages, occupations, political views, people with differing views on issues. Often with people, even if they weren’t difficult beforehand, they become traumatized through their experience and they can be difficult to try and bring together in a sort of a nice, harmonious group effort. Whistleblowers Australia has had its own struggles but we have managed to survive them, but not all organizations have. In most European countries, you don’t have grassroots organizations to support whistleblowers, not that I’m aware of. In a lot of cultures, the very idea of being an informer, like in the countries occupied in Nazi Germany, have seemed to be, “You’re being a traitor to the cause” so that’s taken over from one set of circumstances to something completely different. But still, it’s a hangover that inhibits the idea that anyone should question their employer, question what’s going on. In many countries, it’s seen to be something that people don’t even understand, and if they do, they think it’s a terrible thing. Australia is moving along in this direction like the US but the public thinks we’ve learned from each other but also a lot of countries, people there have things to learn from Australia and the U.S.
One other thing which is important is that it’s become more difficult to report on whistleblowing in Australia because of two things: there are laws passed to criminalize whistleblowing in national security, and that means journalists and whistleblowers receive 5 to 10 years in prison. Also, in the detention centers for refugees, they can get two years in prison, even though they’re not implementing it. The other thing is that there’s mandatory data retention, so all electronic communications, the phone companies and internet service providers have to maintain records of every transaction, every phone call, for two years. So it means if a person, let’s say a whistleblower, contacts a journalist, then the government police can go in and access the records and find out, “Ahh, we’ve had a story about this major corruption in this particular company,” let’s say a bank. They have the ability to look at the journalist, all the phone records, who they’re talking with, and find out who the whistleblower is, because if it’s a leak, that’s much better. Some of the media companies have set up their own equivalent of WikiLeaks, their own websites to make anonymous disclosures, anonymous contact and so forth, so it’s becoming like an oppressive state from the point of view of reporting on whistleblowing. Not very nice, but it shows even more the importance of developing skills to do this well rather than relying on whistleblower protection.
The strange thing about whistleblowing is, people aren’t trying to hide the information, they want the information to get out there, but it’s only those who are leaking who unconsciously play in their head so much that they’ve thought, “Oh, I’m going to leak this information, I don’t want to be identified.” They’re the one for which anonymous browsers like Tor and all of these things are important. Most of the people who contact us, they’ve already spoken out, so it’s a bit too late. I encourage leaking whenever possible.
Erik Moshe, Newsbud Analyst, lives in Northern Virginia and is currently studying writing and rhetoric at George Mason University. He served in the U.S. Air Force from 2009-2013.