For a more formal treatment of many of the issues in this paper, see "Illusions of whistleblower protection".
Brian Martin's publications on dissent
Brian Martin's publications
Brian Martin's website
Brian Martin is at the University of Wollongong and is International Director of Whistleblowers Australia. He is a member of the advisory board of Philosophy and Social Action.
"What do you think of the new whistleblower law?"
The journalist has rung me for a comment because of my visible role in Whistleblowers Australia. Whistleblower legislation is a favourite topic.
I gear up for my standard answer. "Actually, the law may look good on paper, but it's not likely to be of much help to whistleblowers. One of the main problems is that the law only kicks in after an employee has spoken out and come under attack, perhaps lost their job. That's too little and too late."
There's seldom time to describe the gritty reality. Lots of the people who come to us for assistance never set out to blow the whistle. While on the job, they observed some mismanagement, scam or hazard to the public and reported it to management fully expecting that the problem, once it was pointed out, would be promptly investigated and fixed. Suddenly the world falls in on them. They are threatened, reassigned to petty duties, reprimanded for minor infractions, cut out of the gossip circuit, transferred to another site, or any of a host of harassing and undermining actions. Some are demoted or dismissed, but for others life is made so unpleasant that they resign.
At some point someone says to them "You're a whistleblower" or maybe they figure it out themselves and they find their way to Whistleblowers Australia and discover that others have gone through similar ordeals.
What good is a whistleblower law in such cases? Not much unless you can document the harassment. That's hard because so much of it can only be understood by those who've actually been in the job. Can a condescending tone of voice be undermining? Certainly. Can you document it? No way.
For the busy journalist on the phone, I skip the detailed explanations and go straight to my clincher: "Whistleblower laws have been on the books in several Australian states for years, but in Whistleblowers Australia we don't know of a single whistleblower who has ever been helped by any of them. In South Australia, which has one of the best laws on paper, our branch has been trying unsuccessfully for years to get the government to invoke the act. Having a good law on the books is no use if bureaucrats refuse to use it."
The journalist is bemused. I've challenged the unspoken assumption that whistleblower legislation is basically a "good thing," though it might need improvement to fix loopholes. The journalist's intended story went like this: the government touts the virtues of its proposed law, whereas critics - opposition politicians and some experts - say it is too narrow, for example by omitting the private sector. Sometimes it's the opposition proposing legislation and the government criticising it. There are various permutations.
One thing is constant: the assumption that legislation is the solution. Governments assume this and so does nearly everyone else. Journalists are just reflecting a common belief.
Within Whistleblowers Australia, everyone agrees that current legislation doesn't work. Beyond that, there are two main schools of thought. One is that we need better laws and better implementation, for example establishment of an independent agency to receive public interest disclosures. Greg McMahon, national director of Whistleblowers Australia, has produced a powerful leaflet on "Whistleblowers of national significance," describing four amazing cases, each one with a lesson. For example, after Mick Skrijel blew the whistle on heroin importation, "Victorian Police and the National Crime Authority were involved in the prosecution of Mr Skrijel and the fabrication of evidence that led to his wrongful imprisonment," showing that "The protection of whistleblowers can not be entrusted to crime and law enforcement agencies."
While everyone agrees that it would be nice to have better legislation, some of us are sceptical. We subscribe to the other school of thought, namely that whistleblower legislation is not the answer. It may give only the illusion of protection and, in the worst scenario, be worse than nothing.
One of the other sceptics is Jean Lennane, currently national president of Whistleblowers Australia. She says that when using "official channels," the only thing whistleblowers can count on is that they almost never work.
The sceptical position applies not just to whistleblower laws but to internal grievance procedures, ombudsmen, auditors-general, anticorruption commissions and courts. None of them work! Well, to be precise, whistleblowers seldom get any satisfaction from them.
In the New South Wales branch of Whistleblowers Australia, many members had experience with the state's Independent Commission Against Corruption - invariably negative. Sometimes a whistleblower would make a submission to ICAC and get no response. Sometimes ICAC would contact the whistleblower's employer, making things worse. In surveying a couple dozen people who had dealings with ICAC, the branch found only one person who had been even partially helped.
Unsurprisingly, this led to hostility towards ICAC. It's easy to conclude that ICAC is incompetent or even corrupt.
A more generous interpretation is that ICAC is like most other such agencies in being totally overloaded with material (much of it unusable) and constrained by innumerable regulations, making it impossible to adequately deal with every complaint promptly and efficiently even if it was well organised. A typical whistleblower case is so complex and clogged with detail that it might take someone months to get to the bottom of it. If each case worker has fifty cases, overheads alone will make actual investigations a rare luxury.
To this can be added the tendency of any agency to make peace with its patrons. Any anticorruption body that starts to make headway against big-time corruption, going to the highest level of business and government, will be muzzled. It's far easier to expose a few morgue workers stealing gold teeth. Only occasionally, such as with the NSW Police Royal Commission, is there a glimpse of the full scale of corruption.
William De Maria is Australia's leading researcher on whistleblowing (1). In a survey of hundreds of whistleblowers in Queensland, he totalled up how many times they had approached various agencies and how many times they reported being helped. The answer: less than one out of ten times. Not only were the odds of getting help abysmal, but in many cases the agency made things worse.
Lest anyone imagine that this problem is peculiar to Australia, exactly the same thing has been reported in the United States, which has the longest experience with whistleblower laws and other official procedures. The definitive advice manual is The Whistleblower's Survival Guide, a book written by Tom Devine of the Government Accountability Project, the country's premier whistleblower organisation (2). It systematically goes through reporting mechanisms from government hotlines to the False Claims Act, and in every case the message is "Beware!" Many of these channels are worse than nothing - you will be subject to increased reprisals - and even the more promising ones are riddled with potholes.
The US experience is a salutary one. In early days of whistleblower legislation, one head of the Office of the Special Counsel - the body specified by law to receive disclosures - offered a course for government bureaucrats on how to get rid of employees without his Office interfering!
To say that government agencies are overloaded with cases and hamstrung by regulations seems reasonable enough. And to be sure, some agency staff are sympathetic to whistleblowers. But do overload and bureaucratic requirements fully explain the pitiful record of agencies in responding to whistleblower complaints?
A decade ago I read an astute analysis of whistleblower legislation by Catherine Thoms, a masters student in sociology at the Australian National University. She concluded that whistleblower legislation "strives to control the agenda of whistleblowers and to contain their disclosures to channels which are under the purview of the state. Under regimes of authorized whistleblowing, the potential for criticism and review of the operations of the state by the public it is said to serve are virtually non-existent" (3). In essence, whistleblower laws serve to protect the government, not whistleblowers.
Let's take a typical case of systemic corruption, say dumping of hazardous chemicals, silence within churches about a history of sexual abuse, criminals paying off police, or routine awarding of government contracts to insiders. In many such situations, nearly everyone who has risen within the organisation has had to keep quiet about the corrupt behaviour - perhaps blotting it out of their consciousness - if not actually participating in it. A whistleblower exposes this conspiracy of silence, threatening everyone, especially those at the top. Their reputations and perhaps jobs are at stake. Rather than acknowledge that there is an issue worth investigating, full fury is turned against the whistleblower, who becomes a scapegoat for the wrongdoers' negative emotions.
If a single dissident individual could bring down an entire organisation simply by speaking the truth, then the entire social hierarchy would be under threat. Nearly every leader has a few dark secrets. Is it any wonder that whistleblowers must be kept under control?
The problem for governments is that ruthlessly squashing honest employees who speak out looks bad, at least when the story receives publicity. Rather than leave the media as the only outlet for dissenters, it is much more effective to tie them up in endless procedures. Whistleblower legislation is one avenue. It gives the appearance of protection while actually changing very little.
Cynical? Yes. I don't actually believe that anyone plots to design toothless procedures for political appearances. But this can be the outcome of well-meaning people operating in a system that serves those with power.
When talking with journalists, I don't usually try to give a sociological explanation of the symbolic uses of official channels. Far better to switch to the positive. "In our experience, there are only two things that reliably help whistleblowers: one, talking to other whistleblowers, and two, publicity, including media coverage." Journalists are usually happy enough with the part about the media - they are part of the solution!
The power of publicity is remarkable. I've seen cases where, following years of fruitless appeals to ombudsmen, courts and the like, a few media stories have galvanised bureaucrats into a change of heart (or at least of rhetoric). Understanding this is straightforward. When in court, for example, a whistleblower is an individual up against an organisation which has unlimited money, time and other resources to stonewall indefinitely. With appeals, cases can last five or ten years. Technicalities abound. The outcome is seldom "justice." Alas, truth is woefully inadequate to bring down a corrupt organisation.
In contrast, publicity opens the case to a wider audience, putting the whistleblower and bureaucratic elites on a more even playing field. Money is less of an advantage. Furthermore, reprisals against whistleblowers make a good story. Is it any wonder that most whistleblower laws strongly discourage going to the media?
The other thing that really helps is talking to other whistleblowers. Why? When reprisals begin, the target employee suddenly loses all the familiar sources of support. Ostracism by co-workers is common - they are afraid they might be targeted too. The undermining, harassment and disciplinary procedures are devastating for loyal, conscientious workers who sincerely report problems, and many start to doubt themselves. No one really understands what they are going through - until they talk to other whistleblowers.
The NSW branch of Whistleblowers Australia holds weekly "caring and sharing" meetings that give everyone a chance to tell their stories. For newcomers, it is often the first time anyone has really understood what they've been through. They realise that they are not the problem. Rather, what they've experienced has happened to many others. This is tremendously reassuring.
Australian whistleblowers are fortunate in having a national organisation made up primarily of whistleblowers. The only similar national group is Freedom to Care in Britain. Most countries have no groups at all concerned about whistleblowing.
A few years ago, I made contact with Judith Wyatt and Chauncey Hare, authors of the book Work Abuse, an excellent manual on surviving psychologically in abusive organisations - and according to them, that means 95% of them! (4) I met them during a visit to San Francisco and learned more about how difficult it is to get workers to help each other. They counsel many abused workers on an individual basis, but would really like to have co-workers meet outside the workplace to discuss their experiences. But it never happens, as workers are too ashamed to talk about their abuse.
They are quite impressed by the very existence of Whistleblowers Australia. When I told Chauncey that the group's current president, Jean Lennane, is a psychiatrist, he could hardly believe it, so frequent has been their experience that psychiatrists side with employers.
So when I tell the journalist that whistleblower laws are useless, I also say what would be helpful: "reform of the harsh defamation laws, getting rid of the laws that prevent public servants from speaking out, and arms-length funding of whistleblower groups." However, I've started to doubt this advice - it's not practical. I don't really think defamation laws are going to be changed. Defamation law reform has been promoted for decades and no beneficial change has occurred. Few people even bother trying to challenge the so-called state service acts which muzzle government employees. As for funding of whistleblower groups, I'm less than enthusiastic. Outside money could easily disrupt and corrupt the organisation.
So what is the solution? I think the most useful thing would be for every worker - everyone, really - to become well informed about and highly skilled in the dynamics of power in organisations and the wider society. That sounds grand! What does it really mean? A useful beginning would be awareness of what happens to whistleblowers. Every employee should know that reporting mismanagement or dangerous practices, whether to the boss or to outside bodies, could well lead to threats, ostracism, harassment, reprimands, referral to psychiatrists and/or dismissal, and very unlikely to lead to any constructive change. They should know that official channels are very unlikely to be of any help. Most importantly, they should know how to be effective in bringing about change, including how to collect vast amounts of good quality evidence, build alliances with sympathetic co-workers and outsiders, develop constructive alternatives, and follow a flexible strategy toward achievable goals. In short, they should know how to be a social activist inside an organisation.
It would not cost much money to promote such an awareness. It would be a matter of producing some leaflets, referring people to websites and organising meetings. More ambitiously, groups of workers could get together to learn skills by practising them, for example running exercises in which simulated corrupt behaviour is discovered and covered up. Actually, there's plenty of actual corrupt behaviour on which to practise skills, but exercises would be safer to start with!
Chauncey Hare, who thinks along the same lines, believes that every school child should be taught about the fundamentals of human behaviour, including skills for surviving in organisations, and that until this happens, authoritarian behaviours will "continue to sabotage any attempts to create a caring society."
Currently, skilled and ethical organisational operators are few and far between, vastly outnumbered by other species of workers. There are many cynical workers who understand how the system operates but don't believe it's worth trying to change it. There are a quite a few ethical but naive workers - they believe the system works the way it claims to - some of whom are unlucky enough to become whistleblowers and have their lives torn apart. Then there are those workers who just do their job and try to stay out of trouble; their real interests are in the rest of their lives. This isn't a neat division of workers into different types, since an individual can naive, cynical or indifferent according to the situation and occasion. The point is that there are very few who care enough to want to change things and have the skills to be effective at it. If there were more talented organisational activists, it would make an enormous difference. Just talk to any labour activist for a testimonial to the value of key individuals - often but not necessarily the formal leaders.
To talk of empowering workers may sound all right in the context of challenging corruption and dangerous practices. But just stop to think about it: what else could astute and ethical workers do? They might start challenging poor policies - or poor policy making and poor policy makers. They might start questioning unjustified managerial privileges. They might even start questioning the organisational hierarchy.
The threat isn't just to managers. Trade union leaders could feel the heat too, especially when they act in complicity with management.
Is it any wonder, then, that training workers in how to be effective organisational activists is totally off the agenda? What we have instead is a proliferation of formal channels - regulations, auditors, ombudsmen, anticorruption commissions, courts - that are supposed to discourage wrongdoing and fix problems after they arise. These give the illusion of providing a solution. The reality is that they almost never work and are a minimal threat to organisational hierarchies.
There are exceptions, of course, and these get lots of publicity, in the same way that rags-to-riches stories hide the truth that most poor people stay poor whatever they do. The media have stories about courageous workers who have exposed corruption. But have they made a difference? The whistleblowers who are vindicated and whose efforts changed the organisation are few and far between. In most cases, the role of publicity is crucial. In the case of the NSW Police Royal Commission, it was the months of saturation media coverage of police corruption that provided the blowtorch necessary for reform (5) (a process very far from complete). The contributions of courageous police whistleblowers were vital, but without publicity they were almost always done in - and quite a few still are.
If what is most needed is skilled organisational activists with support from a wider public via publicity, then whistleblower laws and other such formal channels aren't just useless - they are a positive hindrance to effective action. That's because so many people believe they actually work. Honest but naive employees spend untold hours preparing submissions to anticorruption commissions, and most of their efforts are wasted or even counterproductive. The same effort would be far more productively spent in building an alliance of concerned workers and outsiders and producing documentation and plans aimed at sensible reform.
I would not like to suggest, though, that anyone has deliberately set out to create official channels as a way to distract workers from options that would be more effective. A system of solution illusions works best when people actually believe in it, not least those who run the system.
There's ample encouragement to believe in official channels. It's what people are taught at school: parliaments are said to operate to produce good policies and courts are said to produce justice. In the media, news reports focus on political leaders and sometimes other sorts of leaders - but always on leaders. Sometimes leaders are praised and often they are blamed, but either way the expectation is that solutions come from the top.
Another media impact comes via Hollywood, where the goodies are always triumph over the baddies and justice invariably prevails. Psychologists have found that most people have a desperate need to believe that the world is just (6). Hollywood plots pander to and reinforce this. Even Hollywood's most vivid and powerful treatment of a whistleblower, the film The Insider, dealt with a case where there the good guy, tobacco company whistleblower Jeffrey Wigand, played by Russell Crowe, received a large measure of vindication, something achieved by very few whistleblowers. Even so, the film, while lauded by critics, was not a great box office success. Perhaps Wigand's tribulations - dismissal, lawsuits, a smear campaign, marriage break-up - were not easy to stomach for audiences accustomed to good guys winning in every way.
But while schools and the media are important in shaping attitudes, the pervasive belief in official channels seems to run much deeper. I think it is linked to the way society is organised. As soon as someone is given a label as a manager, others start looking to that person to handle problems, rather than deal with the problems themselves. It's as if the label determines people's beliefs about where power and responsibility lie. And of course if people believe power and responsibility lie outside of themselves, this becomes a reality.
I experienced this myself, in a minor way, when I became president of Whistleblowers Australia in 1996. I then had more than 15 years of experience with the issues, having become involved long before the organisation was founded. But suddenly, because I was called the president, all sorts of people - members and outsiders, including the media - started contacting me. Overnight, I became recognised as an authority, though my knowledge hadn't changed. (Due to all these new contacts, I learned a lot more, so people's trust in my knowledgeableness was self-fulfilling.)
There is nothing new in this insight. The same thing happens to political candidates when they are elected and to new graduates who are more respected once they have letters after their names. Yet the knowledge that a label doesn't necessarily reflect substance is easy to ignore. So when a whistleblower law is passed or an anticorruption agency is set up, it can be hard to resist believing that whistleblowers are better protected and that corruption is being dealt with more effectively.
Social scientist Bent Flyvbjerg in his highly regarded book Rationality and Power draws conclusions on the basis of a detailed study of local government decision making in Denmark. He finds that groups with power have an immense capacity to cover their actions in a cloak of legitimacy. What is called rationality, namely logical thinking on the basis of evidence, is shaped - twisted, if you like - to serve power. In Flyvbjerg's words, "Power defines reality" (7).
That seems to be what happens with official channels. Powerful groups set up formal processes, as when governments pass whistleblower laws and companies set up grievance procedures, that ostensibly are meant to deal with corruption and other problems. The "reality" of corruption is defined by power as a problem of scattered corrupt individuals, so-called "bad apples," a problem that can be solved by agencies and protocols designed for the task. So when people hear about corruption, they think it is reasonable ("rational") that the solution is more laws, more procedures, stronger agencies and more funding.
Meanwhile, experienced observers of the whistleblowing scene conclude that the laws and procedures don't work and that society would be better off without agencies that give the illusion of action and protection and that entice workers into dead-end processes.
This conclusion is disconcerting enough applied to whistleblowing. What about other areas? Sexual harassment is one with great similarities. When, in the early 1980s, I first became involved with university sexual harassment committees, there were two divergent approaches. I was part of a small group of students and junior staff who put energy into raising awareness about the problem through leaflets, posters and talks. We thought it was most important to prevent sexual harassment by making everyone - potential harassers, potential victims and bystanders - aware of appropriate behaviour, including how to resist. Others concerned about sexual harassment - especially ones higher up the academic totem pole - took a different approach, putting most of their efforts into procedures, including formulating a policy and setting up a panel to deal with grievances under the policy.
Anyone who looks into sexual harassment as an issue soon learns that most cases are never reported and of those that are, few proceed very far through formal procedures. I concluded that the main benefit of the procedures was the publicity they generated when being set up. After that, they provided an illusion that sexual harassment was being dealt with. The problem was, it wasn't.
Those involved with rape and sexual violence know this well. Elizabeth Stanko, author of Intimate Intrusions: Women's Experience with Male Violence, found that grievance procedures and courts are unresponsive, especially for minority or lower class women, and end up causing great additional trauma to victims, a "second assault"(8).
An alternative, grassroots approach is for women to develop their capacities to resist sexual harassment and assault. The best treatment of this option is by Martha Langelan who in her book Back Off! recommends "confrontation," in which a women immediately specifies the abusive behaviour, publicly describes it as harassment and holds the harasser responsible for it (9).
One objection springs to mind: isn't this blaming the victim? Why should women have to develop skills? Isn't it the responsibility of management to ensure a harassment-free environment?
This objection sounds reasonable - but does it work in practice? First, to encourage women to develop skills in resisting harassment is surely not to blame them. The harasser is always to blame, whatever the skills of the person harassed. The question of responsibility is trickier. Yes, it is wonderful for management to take the lead. But often management just sets up empty procedures, so there is a great risk in leaving the problem to management alone. But even for enlightened managers, taking responsibility does not automatically mean that everyone else just sits back and does nothing. Managers can provide leadership by promoting the development of skills, for example running workshops or even just circulating case studies from Langelan's book. There's a big difference between blaming the victim and empowering potential victims.
One of the great attractions of official channels is that they protect managers. If sexual harassment guidelines and disciplinary procedures are in place and have been suitably publicised, then if harassment occurs, only the harasser is held responsible: management is seen to have done its duty. It doesn't matter whether the guidelines and penalties are actually effective in discouraging harassment or dealing with incidents. The key thing is that the rules are there. No wonder managers love rules. Accounts, occupational health and safety, bullying, you name it and there's a set of procedures to show that management has been responsible.
Again let me emphasise that nearly everyone involved with such procedures is quite sincere. They believe that this is a good way to do things. Setting up and using official channels is not a cynical exercise in giving only the appearance of dealing with a problem. Rather, it is "rational" within the given system of power. It so happens that in the system, managers have power and procedures give them protection. In contrast, empowering workers has a low priority. It simply doesn't provide the same level of protection - to managers, at least.
The idea of solution illusions can be and often has been applied more generally. Critical legal scholars have argued that the law is largely a smokescreen for the way power is actually exercised through the legal system. Benjamin Ginsberg has argued that elections, rather than being the epitome of democracy, actually legitimate the system of government and inhibit greater democratisation (10). Peace researchers have argued that arms negotiations serve mainly to regularise military races and give the appearance of control at the top, without making meaningful steps towards disarmament(11). Murray Edelman has written penetrating analyses of the "symbolic uses of politics," namely the ways that government policies, laws and administrative systems promote citizen quiescence by reassuring the public that relevant action is being taken (12).
These eye-opening critiques are not widely known, so most viewers remain fixated on the appearance. Solution illusions are most effective when people do not have personal experience of the problems and of the failure of official channels. Whistleblowers are few and far between, and participants in arms negotiations are fewer still. But even many of those directly involved do not want to give up their beliefs in official channels. Whistleblowers often try half a dozen or more agencies in their efforts to obtain justice, spending years of effort and large amounts of money, yet despite repeated rejections still believe that somewhere there is a wise, honest and powerful individual who will see the truth and right all the wrongs. Faith in the system dies hard.
If one accepts that official channels give only the illusion of a solution to social problems, what next? One answer is to put energy into grassroots approaches, namely ones that develop people's understanding, skills and willingness to act. There's a simple test of effectiveness: who is empowered? Using official channels empowers bureaucrats, lawyers or whoever administers the procedures. Grassroots approaches should empower those who are most likely to suffer from the problem in the first place.
When I get another call about whistleblower legislation, I will again reply that it won't work, giving only the illusion of protection. The full story about solution illusions will have to wait for a longer interview.
1. William De Maria, Deadly Disclosures: Whistleblowing and the Ethical Meltdown of Australia (Adelaide: Wakefield Press, 1999).
2. Tom Devine, The Whistleblower's Survival Guide: Courage without Martyrdom (Washington, DC: Fund for Constitutional Government, 1997).
3. Catherine Thoms, The Advent of Whistleblower Legislation: A Sociological Analysis, Master of Letters sub-thesis, Australian National University, Canberra, November 1992, p. 83.
4. Judith Wyatt and Chauncey Hare, Work Abuse: How to Recognize and Survive It (Rochester, VT: Schenkman, 1997).
5. Rodney Tiffen, Scandals: Media, Politics and Corruption in Contemporary Australia (Sydney: University of New South Wales Press, 1999).
6. Melvin J. Lerner, The Belief in a Just World: A Fundamental Delusion (New York: Plenum, 1980).
7. Bent Flyvbjerg, Rationality and Power: Democracy in Practice (Chicago: University of Chicago Press, 1998).
8. Elizabeth Stanko, Intimate Intrusions: Women's Experience with Male Violence (London: Routledge and Kegan Paul, 1985).
9. Martha J. Langelan, Back Off! How to Confront and Stop Sexual Harassment and Harassers (New York: Simon and Schuster 1993).
10. Benjamin Ginsberg, The Consequences of Consent: Elections, Citizen Control and Popular Acquiescence (Reading, MA: Addison-Wesley, 1982).
11. Johan Galtung, "Why do disarmament negotiations fail?" Gandhi Marg, nos. 38-39, May-June 1982, pp. 298-307; Alva Myrdal, The Game of Disarmament: How the United States and Russia Run the Arms Race (New York: Pantheon, 1976).
12. Murray Edelman, The Symbolic Uses of Politics (Urbana, IL: University of Illinois Press, 1964).