tag:theconversation.com,2011:/ca/topics/whistleblowing-3609/articlesWhistleblowing – The Conversation2024-02-19T19:05:01Ztag:theconversation.com,2011:article/2212172024-02-19T19:05:01Z2024-02-19T19:05:01ZAfter years of avoiding extradition, Julian Assange’s appeal is likely his last chance. Here’s how it might unfold (and how we got here)<p>On February 20 and 21, Julian Assange will ask the High Court of England and Wales to reverse a decision from June last year allowing the United Kingdom to extradite him to the United States. </p>
<p>There he faces multiple counts of computer misuse and espionage stemming from his work with WikiLeaks, <a href="https://www.aljazeera.com/news/2020/12/20/julian-assange">publishing sensitive</a> US government documents provided by Chelsea Manning. The US government has repeatedly claimed that Assange’s actions <a href="https://www.theguardian.com/australia-news/2023/jul/29/julian-assange-us-rejects-australias-calls-to-free-wikileaks-founder-during-ausmin-talks">risked its national security</a>.</p>
<p>This is the final avenue of appeal in the UK, although Stella Assange, Julian’s wife, has indicated he would <a href="https://www.reuters.com/world/julian-assanges-appeal-against-us-extradition-is-life-or-death-wife-says-2024-02-15/">seek an order</a> from the European Court of Human Rights if he loses the application for appeal. The European Court, an international court that hears cases under the European Convention on Human Rights, can issue orders that are binding on convention member states. In 2022, an order from the court <a href="https://www.theguardian.com/uk-news/2022/jun/14/european-court-humam-right-makes-11th-hour-intervention-in-rwanda-asylum-seeker-plan">stopped the UK</a> sending asylum seekers to Rwanda pending a full review of the relevant legislation.</p>
<p>The extradition process has been running for nearly five years. Over such a long time, it’s easy to lose track of the sequence of events that led to this. Here’s how we got here, and what might happen next.</p>
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Read more:
<a href="https://theconversation.com/view-from-the-hill-australias-bid-for-julian-assanges-freedom-presents-formidable-problems-for-joe-biden-213152">View from The Hill: Australia's bid for Julian Assange's freedom presents formidable problems for Joe Biden</a>
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<h2>Years-long extradition attempt</h2>
<p>From 2012 until May 2019, Assange resided in the Ecuadorian embassy in London after breaching bail on unrelated allegations. While he remained in the embassy, the police could not arrest him without the permission of the Ecuadorian government. </p>
<p>In 2019, Ecuador allowed Assange’s arrest. He was then convicted of breaching bail conditions, and imprisoned in Belmarsh Prison, where he’s remained during the extradition proceedings. Shortly after his arrest, the United States <a href="https://theconversation.com/assanges-new-indictment-espionage-and-the-first-amendment-117785">laid charges against Assange</a> and requested his extradition from the United Kingdom.</p>
<p>Assange immediately challenged the extradition request. After delays due to COVID, in January 2021, the District Court decided the extradition <a href="https://theconversation.com/julian-assanges-extradition-victory-offers-cold-comfort-for-press-freedom-152676">could not proceed</a> because it would be “oppressive” to Assange. </p>
<p>The ruling was based on the likely conditions that Assange would face in an American prison and the high risk that he would attempt suicide. The court rejected all other arguments against extradition.</p>
<p>The American government appealed the District Court decision. It provided assurances on prison conditions for Assange to overcome the finding that the extradition would be oppressive. Those assurances led to the High Court <a href="https://www.iclr.co.uk/document/2021005727/casereport_3d8af061-9914-4a2d-bd2d-fa5260deeb2c/html">overturning the order</a> stopping extradition. Then the Supreme Court (the UK’s top court) refused Assange’s request to appeal that ruling. </p>
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Read more:
<a href="https://theconversation.com/a-rocky-diplomatic-road-julian-assanges-hopes-of-avoiding-extradition-take-a-blow-as-us-pushes-back-210806">A rocky diplomatic road: Julian Assange's hopes of avoiding extradition take a blow as US pushes back</a>
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<p>The extradition request then passed to the home secretary, who <a href="https://www.theguardian.com/media/2022/jun/17/julian-assange-extradition-to-us-approved-by-priti-patel">approved it</a>. Assange appealed the home secretary’s decision, which a single judge of the <a href="https://www.theguardian.com/media/2023/jun/09/julian-assange-dangerously-close-to-us-extradition-after-losing-latest-legal-appeal">High Court rejected</a> in June 2023. </p>
<p>This appeal is against that most recent ruling and will be heard by a two-judge bench. These judges will only decide whether Assange has grounds for appeal. If they decide in his favour, the court will schedule a full hearing of the merits of the appeal. That hearing would come at the cost of further delay in the resolution of his case.</p>
<h2>Growing political support</h2>
<p>Parallel to the legal challenges, Assange’s supporters have led a political campaign to stop the prosecution and the extradition. One goal of the campaign has been to persuade the Australian government to argue Assange’s case with the American government. </p>
<p>Cross-party support from individual parliamentarians has steadily grown, led by independent MP Andrew Wilkie. Over the past two years, the government, including the foreign minister and the prime minister, have made stronger and clearer statements that the <a href="https://www.internationalaffairs.org.au/australianoutlook/julian-assange-the-state-of-play-at-the-end-of-2023/">prosecution should end</a>. </p>
<p>On February 14, Wilkie proposed a <a href="https://www.aph.gov.au/Parliamentary_Business/Hansard/Hansard_Display?bid=chamber/hansardr/27604/&sid=0001">motion</a> in support of Assange, seconded by Labor MP Josh Wilson. The house was asked to “underline the importance of the UK and USA bringing the matter to a close so that Mr Assange can return home to his family in Australia.” It was passed.</p>
<p>In addition, Attorney-General Mark Dreyfus <a href="https://www.theguardian.com/australia-news/2024/feb/14/australian-mps-pass-motion-urging-us-and-uk-to-allow-julian-assange-to-return-to-australia">confirmed</a> he had recently raised the Assange prosecution with his American counterpart, who has the authority to end it.</p>
<h2>What will Assange’s team argue?</h2>
<p>For the High Court appeal, it is expected Assange’s legal team will once again argue the extradition would be oppressive and that the American assurances are inadequate. A recent <a href="https://www.ohchr.org/en/press-releases/2024/02/un-special-rapporteur-torture-urges-uk-government-halt-imminent-extradition">statement</a> by Alice Edwards, the United Nations Special Rapporteur on Torture, supports their argument that extradition could lead to treatment “amounting to torture or other forms of ill-treatment or punishment”. She rejected the adequacy of American assurances, saying:</p>
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<p>They are not legally binding, are limited in their scope, and the person the assurances aim to protect may have no recourse if they are violated.</p>
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<p>The argument that extradition would be oppressive remains the strongest ground for appeal. However, it is likely Assange’s lawyers will also repeat some of the arguments which were unsuccessful in the District Court proceedings. </p>
<p>One argument is that the charges against Assange, particularly the espionage charges, are political offences. The United States–United Kingdom extradition treaty does not allow either state to extradite for political offences. </p>
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Read more:
<a href="https://theconversation.com/explainer-what-charges-does-julian-assange-face-and-whats-likely-to-happen-next-115362">Explainer: what charges does Julian Assange face, and what's likely to happen next?</a>
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<p>Assange is also likely to re-run the argument that his leaks of classified documents were exercises of his right to freedom of expression under the European Convention on Human Rights. To date, the European Court of Human Rights has never found that an extradition request violates freedom of expression. For the High Court to do so would be an innovative ruling. </p>
<p>The High Court will hear two days of legal argument and might not give its judgement immediately, but it will probably be delivered soon after the hearing. Whatever the decision, Assange’s supporters will continue their political campaign, supported by the Australian government, to stop the prosecution. </p>
<p><em>Correction: An earlier version of this article incorrectly stated Julian Assange lived in the Ecuadorian embassy after breaching bail on unrelated charges. He had not been charged with any offences and was instead wanted for questioning in Sweden over sexual assault allegations. The Swedish investigation has since been dropped with no charges laid.</em></p><img src="https://counter.theconversation.com/content/221217/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Holly Cullen has been a volunteer for the Australian Labor Party, including for Josh Wilson, MP.</span></em></p>Efforts to extradite Wikileaks founder Julian Assange from the UK to the US have gone on for years. Here’s what’s been going on and what might happen in court this time.Holly Cullen, Adjunct professor, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2235522024-02-15T02:49:22Z2024-02-15T02:49:22ZThe Jewish creatives’ WhatsApp leak was more whistleblowing than doxing. Here’s why<figure><img src="https://images.theconversation.com/files/575762/original/file-20240215-30-wzbohm.jpg?ixlib=rb-1.1.0&rect=98%2C35%2C5829%2C3952&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://unsplash.com/photos/woman-in-white-shirt-holding-black-iphone-4-VGmgsDsck58">Miquel Parera/Unsplash</a></span></figcaption></figure><p>Debate around doxing is raging in Australia after the <a href="https://theconversation.com/doxing-or-in-the-public-interest-free-speech-cancelling-and-the-ethics-of-the-jewish-creatives-whatsapp-group-leak-223323">leak of a WhatsApp chat group</a> called “Jewish Australian creatives and academics”. While the group was formed as a supportive space, some of its conversations focused on challenging media critiques of Israel.</p>
<p>The leakers have <a href="https://www.instagram.com/p/C3MIOyySAfM/?hl=en&img_index=1">stated they acted in the public interest</a>, because they claim the chat group was coordinating actions to target pro-Palestinian activists.</p>
<p>The Australian government has reacted to this episode with a move to <a href="https://www.abc.net.au/news/2024-02-13/federal-government-to-criminalise-doxxing/103458052">criminalise doxing</a> and introduce jail terms for culprits. </p>
<p>But was this leak actually <a href="https://www.esafety.gov.au/industry/tech-trends-and-challenges/doxing">doxing</a>? Terms like this are always up for debate, but the government’s own definition throws up questions about this case. </p>
<h2>Personal information</h2>
<p>According to <a href="https://www.abc.net.au/news/2024-02-13/federal-government-to-criminalise-doxxing/103458052">Prime Minister Anthony Albanese</a> and <a href="https://ministers.ag.gov.au/media-centre/transcripts/media-conference-parliament-house-13-02-2024">Attorney-General Mark Dreyfus</a>, doxing is the “malicious release” of someone’s personal information without their consent.</p>
<p>The first question here is one of personal information. Was any personal information actually leaked? </p>
<p>Early <a href="https://www.smh.com.au/national/hundreds-of-jewish-creatives-have-names-details-taken-in-leak-published-online-20240208-p5f3if.html">media reports stated</a> the leak contained a transcript of chat discussions. A separate spreadsheet was reportedly circulated that contained a list of the group members’ names, workplaces, social media accounts, as well as people’s photographs.</p>
<p>Those who released the information <a href="https://www.instagram.com/p/C3MIOyySAfM/?hl=en&img_index=5">say they scrubbed any details</a> that could be used to track people down, such as phone numbers and email addresses. They also say no private photographs were released, nor any photos of children. </p>
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<a href="https://theconversation.com/what-is-doxing-and-how-can-you-protect-yourself-223428">What is doxing, and how can you protect yourself?</a>
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<p>This is very different to other high-profile doxing events. For example, in 2018, men’s rights activists ran a campaign called #ThotAudit in which they tried to report online sex workers to the US Internal Revenue Service.</p>
<p>Some participants <a href="https://www.vice.com/en/article/gy7wyw/thotaudit-databases-of-sex-workers-and-reporting-them-to-paypal">compiled a detailed database of sex workers</a>, containing more than 166,000 entries, which included full names, locations, links to wish lists, types of payment processors and bios. This campaign <a href="https://www.theverge.com/2018/11/30/18119688/thotaudit-sex-work-irs-online-harassment">was part of a long history</a> of sex workers being publicly exposed, and resulted in significant, personalised harassment of those on the list. </p>
<p>Some will say that releasing a list of names is itself doxing. But this is very murky. If participants need to be anonymous to join a cause – for example, for their own safety – there might be a case. But many of the participants in this WhatsApp chat were already high-profile people. </p>
<p>Therefore, the WhatsApp chat leak seems less like a case of doxing, and more like a leak of how groups organise around their political agendas. Similar leaks have exposed the <a href="https://www.abc.net.au/news/2019-03-26/secret-recordings-show-one-nation-staffers-seeking-nra-donations/10936052">links between Pauline Hanson’s One Nation Party</a> and the US National Rifle Association, and <a href="https://theconversation.com/did-the-morrison-government-change-the-relationship-between-religion-and-politics-in-australia-190650">connections between Pentecostal Christian churches and politicians</a>.</p>
<p>I would argue this action was more in line with whistleblowing, not doxing. Whistleblowing is the release of information revealing activities that are deemed to be illegal, immoral, illicit, unsafe or fraudulent.</p>
<p>These terms are also very much up for debate, but the publishers of this list believed the activity within to be immoral, and therefore within the public interest.</p>
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Read more:
<a href="https://theconversation.com/doxing-or-in-the-public-interest-free-speech-cancelling-and-the-ethics-of-the-jewish-creatives-whatsapp-group-leak-223323">Doxing or in the public interest? Free speech, 'cancelling' and the ethics of the Jewish creatives' WhatsApp group leak</a>
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<h2>Malicious intent</h2>
<p>This leads to the second question, which is one of intent. The government claims the leak was done <a href="https://ministers.ag.gov.au/media-centre/transcripts/media-conference-parliament-house-13-02-2024">with malicious intent</a>, and this claim has been <a href="https://www.abc.net.au/listen/programs/radionational-drive/one-third-of-australian-children-can-t-read-properly/103457018">backed by the opposition</a> and organisations such as <a href="https://www.smh.com.au/politics/federal/doxxing-laws-to-be-brought-forward-after-jewish-whatsapp-leak-20240212-p5f4cc.html">the Executive Council of Australian Jewry</a>. </p>
<p>Yet the malicious intent is also up for debate. The release of this chat cannot be isolated from its content. This was, by and large, not simply a group of people having friendly conversations.</p>
<p>Some people in the group were high-profile supporters of Israel in Australia. Members also used the chat to organise politically, with some conversations allegedly centred on ways to target pro-Palestinian activists.</p>
<p>This creates a clear political reason for the release of the information. There is of course a reasonable debate here as to which private discussions of political issues are fair game, and everyone will have a different view.</p>
<p>But the political nature of the chat moves this incident closer to being a political leak or whistleblowing rather than doxing. </p>
<p>This does not mean the leakers are immune to criticism, either. There were harms associated with their actions. Members of the WhatsApp chat <a href="https://www.theguardian.com/australia-news/2024/feb/09/josh-burns-jewish-whatsapp-group-channel-publication-israel-palestine-clementine-ford">have reported</a> they have been subjected to harassment, including death threats. This includes some who <a href="https://twitter.com/GingerGorman/status/1754680956760543247">were not actively participating</a> in the chat, and have since disowned the group’s conversations.</p>
<p>This fallout can and should be pursued by authorities under current anti-harassment legislation. Yet we must be careful about blaming those who leak material for this behaviour.</p>
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Read more:
<a href="https://theconversation.com/the-government-wants-to-criminalise-doxing-it-may-not-work-to-stamp-out-bad-behaviour-online-223546">The government wants to criminalise doxing. It may not work to stamp out bad behaviour online</a>
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<p>Other examples of politically charged doxing help to illustrate this point. In the wake of the 2017 white supremacist Charlottesville riots in the United States, many anti-fascist organisers <a href="https://newrepublic.com/article/150159/doxx-racist">tracked down and released</a> the names and details of participants using photographic evidence. In some instances this included details of where participants lived or worked. </p>
<p>This clearly meets the first part of the government’s definition of doxing. But it is debatable whether the anti-facist campaign was malicious or not.</p>
<p>While there were problems with this campaign, particularly as some people were wrongly identified, there is an ethical case to be made: people participating in violent white supremacist riots should be exposed so their community is aware of their actions. This made the Charlottesville leak political, rather than personally malicious.</p>
<p>This is where the risk lies in banning doxing if the definition of what that means is left too broad. By the government’s current definition, the WhatsApp leak seems more like an act of whistleblowing.</p>
<p>A legislative ban could therefore have a much broader impact than criminalising the release of personal information. Instead, it could result in further crackdowns on political activities, and serve to weaken the accountability of people with power. </p>
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Read more:
<a href="https://theconversation.com/australia-is-in-desperate-need-of-a-whistleblower-protection-authority-heres-what-it-should-look-like-223295">Australia is in desperate need of a Whistleblower Protection Authority. Here's what it should look like</a>
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<p><em>Correction: This article has been amended to clarify that there were two separate reported instances of information being released about the chat group and its participants.</em></p><img src="https://counter.theconversation.com/content/223552/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Simon Copland has signed a statement of solidarity with Palestine from academics in Australian universities.</span></em></p>If doxing is the malicious release of someone’s personal information without their consent, publicising politically charged discussions in a private chat group may not qualify.Simon Copland, Honorary Fellow in Sociology, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2182342023-11-21T03:26:45Z2023-11-21T03:26:45ZAustralia’s secrecy laws include 875 offences. Reforms are welcome, but don’t go far enough for press freedom<p>In 2019, the <a href="https://www.nytimes.com/2019/06/05/world/australia/journalist-raids.html">New York Times</a> declared that “Australia may well be the world’s most secretive democracy”. </p>
<p>The Times published the piece shortly after the Australian Federal Police raided journalists from <a href="https://www.abc.net.au/news/2019-06-05/abc-raided-by-australian-federal-police-afghan-files-stories/11181162">two news organisations</a>, searching for evidence of sources for stories that were embarrassing to the government. </p>
<p>Four years on, Attorney-General Mark Dreyfus today released a comprehensive <a href="https://www.ag.gov.au/crime/publications/review-secrecy-provisions">review of secrecy laws</a> that acknowledges a woefully complicated mess. </p>
<p>The government’s plan to clean it up is a good first step, but it’s just the tip of a very big iceberg.</p>
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Read more:
<a href="https://theconversation.com/journalists-must-be-protected-in-police-investigations-heres-our-five-point-plan-for-reform-193102">Journalists must be protected in police investigations. Here's our five point plan for reform</a>
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<h2>Progress on much-needed change</h2>
<p>To make its case in 2019, The Times pointed to a bewildering array of legal and political obstacles embedded in Australian law that stand in the way of the transparency considered essential to a fully functioning democracy. </p>
<p>In principle, the government seems to agree. </p>
<p>The review points to 875 secrecy offences covering everything from national security to tax laws, and a dysfunctioning system for protecting whistleblowers. </p>
<p>It also recognises the chilling effect on the ability of journalists to work with sources from inside government, and hold it to account. </p>
<p>To fix the problem, the report comes up with 11 recommendations, including reducing the number of offences to a more manageable (but still excessive) 707. </p>
<p>It establishes a set of guiding principles that will help consolidate the law and make it more consistent. </p>
<p>And it says there should be a narrower range of information defined as “secret”, with clear harm to the public interest in any breach of secrecy before a prosecution can take place. </p>
<p>It also calls for specific defences for public-interest journalism to be inserted into key secrecy laws.</p>
<p>All this is laudable, and it starts to untie the Gordian Knot of legislation that created the culture of secrecy the Times was concerned about, but it is simply not enough. </p>
<h2>A patchwork quilt of laws</h2>
<p>The enormous number of secrecy offences currently on the books points to the central problem. Whenever lawmakers have spotted a hole in the law, they’ve stuck a patch over it. </p>
<p>That is understandable, particularly in a post-September 11 world when national security has become the overriding concern of governments everywhere. </p>
<p>But it has created a confusing, inconsistent and incoherent mess that the attorney-general appears to be trying to fix with yet more patches. </p>
<p>To be fair, some of them are larger and more coherent than the current ones, but it is still insufficient to deal with the fundamental problem. The Australian government remains dangerously secretive.</p>
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Read more:
<a href="https://theconversation.com/its-time-for-the-government-to-walk-the-talk-on-media-freedom-in-australia-161342">It’s time for the government to walk the talk on media freedom in Australia</a>
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<p>Another of the recommendations is a general secrecy offence that says Commonwealth officers can’t can’t disclose anything that would be “prejudicial to the effective working of government”. </p>
<p>A general secrecy offence helps simplify things, but the threshold is worryingly sweeping and runs counter to a recommendation the Australian Law Reform Commission made back in a <a href="https://www.alrc.gov.au/publication/secrecy-laws-and-open-government-in-australia-alrc-report-112/">2010 report</a> that triggered the review in the first place. </p>
<h2>Dangerous plan for journalism</h2>
<p>The report also makes much of the need to protect public-interest journalism. </p>
<p>Again, it is laudable that the attorney-general recognises the threats to media freedom embedded in the law, and said he’s prepared to tackle them. </p>
<p>But the answers in the report are more of the same: a set of band aids, rather than a comprehensive cure.</p>
<p>Controversially, that includes a commitment to maintain a ministerial directive from the former Attorney-General Christian Porter. </p>
<p>Porter issued his directive in the wake of the 2019 raids, in an attempt to underline the government’s commitment to press freedom. The directive declared that the director of public prosecutions had to seek the attorney-general’s approval before prosecuting a journalist. </p>
<p>One of the fundamental principles of our democracy is a <a href="https://peo.gov.au/understand-our-parliament/how-parliament-works/system-of-government/separation-of-powers-parliament-executive-and-judiciary/#:%7E:text=In%20Australia%2C%20the%20power%20to,group%20having%20all%20the%20power.">clear separation</a> between the political and legal systems. </p>
<p>Yet the directive clearly crosses that line. </p>
<p>As we saw with the <a href="https://www.abc.net.au/news/2021-03-08/christian-porter-accuser-four-corners/13226794">allegations of sexual assault</a> levelled at Porter, and subsequent <a href="https://www.theguardian.com/australia-news/2021/mar/16/christian-porter-v-abc-can-the-minister-sue-for-defamation-over-article-that-didnt-name-him">legal action</a> against the ABC, the attorney-general is as vulnerable to journalistic investigation as anyone else. Giving him the last word about whether or not to prosecute a journalist is a dangerous, if well-intentioned, step. </p>
<h2>Time for a whole new approach</h2>
<p>The report also declines to reverse the burden of proof when it comes to publishing government secrets in the public interest. </p>
<p>A number of media organisations (including the Alliance for Journalists’ Freedom that I work for) have argued there should be a <a href="https://www.aph.gov.au/DocumentStore.ashx?id=ab18c655-f6f8-4e0f-a6cb-b0b40d5a68fc&subId=668253">presumption in favour of publishing</a>, unless the investigators can show a clear harm to the public interest. </p>
<p>In other words, they should have to prove the harm in publishing rather than forcing journalists to show the value in their story. The report released today rejected that idea.</p>
<p>At least when it comes to media freedom, the Alliance for Journalists’ Freedom has a far simpler and more comprehensive solution. </p>
<p>Rather than patches, we are proposing a <a href="https://www.journalistsfreedom.com/major-projects/media-freedom-act/">Media Freedom Act</a> that would establish a set of overarching principles in law. </p>
<p>First, it would compel parliament to always consider media freedom when passing new legislation. </p>
<p>And second, the courts would be obliged to interpret existing laws, like secrecy and espionage laws, in ways that are consistent with media freedom. </p>
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Read more:
<a href="https://theconversation.com/australia-needs-a-media-freedom-act-heres-how-it-could-work-125315">Australia needs a Media Freedom Act. Here's how it could work</a>
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<p>That would include a presumption in favour of protecting a journalist’s sources and in publishing. The police would have to show why the public interest in an investigation is more important than the public interest in the story itself.</p>
<p>That law alone wouldn’t be enough to solve all the problems - there would need to be a lot of amendments to make it work effectively - but it elegantly creates a set of principles and frameworks that protect the underlying objective: to create the kind of transparency necessary for a healthy democracy, without putting national security at risk.</p><img src="https://counter.theconversation.com/content/218234/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter Greste is a professor of journalism at Macquarie University, and the Executive Director of the not-for-profit advocacy group, the Alliance for Journalists' Freedom. </span></em></p>Today, the government released a review into Australia’s patchwork of a secrecy law system. The proposed changes are a step in the right direction, but there’s so much more work to do.Peter Greste, Professor of Journalism and Communications, Macquarie UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2121182023-09-18T14:25:31Z2023-09-18T14:25:31ZCorruption in South Africa: would paying whistleblowers help?<p>Whistleblowing is an important tool in fighting corruption. In South Africa, the <a href="https://www.gov.za/sites/default/files/gcis_document/202204/state-capture-commission-report-part-iv-vol-iv.pdf">commission of inquiry into state capture</a> recommended that the government should provide financial rewards for whistleblowers who report corruption. </p>
<p>The issue was in the headlines again following the <a href="https://www.news24.com/news24/southafrica/news/just-in-babita-deokaran-six-accused-plead-guilty-to-murder-of-whistleblower-20230822">sentencing of six men</a> for the 2021 murder of prominent whistleblower Babita Deokaran. </p>
<p>The Department of Justice and Constitutional Development invited public comments on a <a href="https://www.justice.gov.za/legislation/invitations/20230629-Whistleblower-Protection-Regime.pdf">discussion paper</a> on proposed reforms for whistleblower protection. It proposes that whistleblowers should be given legal assistance and that a fund be created to support those who suffer severe financial hardship for reporting corruption. This fund will be financed by a levy on all employees’ salaries, similar to the <a href="https://www.sars.gov.za/types-of-tax/unemployment-insurance-fund/#:%7E:text=How%20much%20do%20you%20need,employer">Unemployment Insurance Fund levy</a>.</p>
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Read more:
<a href="https://theconversation.com/whistleblowers-are-key-to-fighting-corruption-in-south-africa-it-shouldnt-be-at-their-peril-168134">Whistleblowers are key to fighting corruption in South Africa. It shouldn't be at their peril</a>
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<p>I am a <a href="https://orcid.org/0000-0002-3317-9057">legal scholar</a> with a research interest in public sector corruption and municipal governance. I presented papers at international conferences in <a href="https://urbanlaw.wixsite.com/iculc2023/schedule-1">May</a> and <a href="http://jurisdiversitas.blogspot.com/p/blog-page.html">June</a> 2023 on whistleblower protection and money incentives.</p>
<p>In my view, whistleblowers should be entitled to financial support – which may or may not include rewards as well. But rewarding whistleblowers has potential costs as well as benefits. It should not be seen as the silver bullet that will stop corruption. Lawmakers need to be aware of possible weaknesses of money reward systems, so they can build in safeguards when developing legislation.</p>
<h2>Rewarding whistleblowers</h2>
<p>Three ways to support whistleblowers are financial support, compensation and money rewards. </p>
<p><a href="https://www.tandfonline.com/doi/full/10.1080/16549716.2022.2140494">Financial support</a> means covering the reasonable expenses a person incurs when reporting corruption. They can be legal expenses, or expenses for accommodation and travel to court proceedings.</p>
<p>Compensation is meant to make up for the losses they suffer from retaliatory actions such as unfair dismissals or defamation. </p>
<p>The third option is more controversial. Money rewards or incentives are payments made on top of compensation and financial support. The idea is to reward whistleblowers financially for being good citizens.</p>
<p>Globally, only <a href="https://knowledgehub.transparency.org/assets/uploads/helpdesk/Whistleblower-Reward-Programmes-2018.pdf">about 22 countries</a> use money incentives for whistleblowing. One possible reason there are so few could be a lack of clear evidence as to whether reward systems contribute much to fighting corruption.</p>
<p>Money rewards <a href="https://knowledgehub.transparency.org/assets/uploads/helpdesk/Whistleblower-Reward-Programmes-2018.pdf">are commonly</a> used:</p>
<ul>
<li><p>to “buy” useful information from the whistleblower (this is done in Kenya, Lithuania, Malaysia, and Pakistan)</p></li>
<li><p>when the information given leads to a successful penalty or recovery of funds (Canada, Ghana, Hungary, Republic of Korea, Montenegro, Nigeria, Slovakia, the UK and the US)</p></li>
<li><p>when the information is instrumental to institute criminal proceedings (Ghana, Slovakia and Ukraine)</p></li>
<li><p>when whistleblowers are able to recover funds through legal action on behalf of the state (the US). </p></li>
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Read more:
<a href="https://theconversation.com/south-africas-corporate-whistleblowers-dont-get-enough-protection-what-needs-to-change-201006">South Africa's corporate whistleblowers don't get enough protection: what needs to change</a>
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<p>In South Africa, individuals can <a href="https://www.justice.gov.za/legislation/acts/1977-051.pdf#page=7">institute private prosecutions</a>, but are entitled to recover only their expenses involved in the prosecution if they are successful. They don’t receive a reward.</p>
<p>The US and Ghana use more than one model. This may be to provide for some flexibility depending on the type of offence concerned, the information provided and the overall interests of justice.</p>
<p>The South African government could also offer non-monetary incentives for whistleblowers. These might include national awards such as the <a href="https://www.thepresidency.gov.za/national-orders/order-baobab-0#:%7E:text=The%20Order%20of%20the%20Baobab%20is%20awarded%20to%20South%20African,is%20awarded%20for%20exceptional%20service">Order of the Baobab</a> or the <a href="https://www.thepresidency.gov.za/national-orders/order-luthuli-0">Order of Luthuli</a> for service to democracy. </p>
<p>The City of Cape Town recently <a href="https://www.capetown.gov.za/Media-and-news/Cape%20Town%20announces%20Civic%20Honours%20recipients">announced</a> that it would award the Mayor’s Medal to Athol Williams, a state capture whistleblower, for his dedication and sacrifice to South Africa. </p>
<h2>The case for financial rewards</h2>
<p>There are a number of benefits to rewards.</p>
<p>The first is that money incentives lead to an <a href="https://knowledgehub.transparency.org/assets/uploads/helpdesk/Whistleblower-Reward-Programmes-2018.pdf">increase in the number of whistleblowing reports</a>. However, <a href="https://www.academia.edu/download/58344623/Whistleblower-Reward-and-Systems-Implementation-Effects-on-Whistleblowing-in-Organisations.pdf">some studies</a> emphasise that there’s no guarantee the number of successful prosecutions will increase too.</p>
<p>Secondly, whistleblower reports can save state resources which would otherwise be spent on investigations. Criminal investigations can be fast tracked if people come forward with evidence to support their allegations. </p>
<p>Thirdly, money incentives can increase public awareness of corruption and whistleblowing, if there’s media coverage. This could counteract the stigma that whistleblowers are snitches.</p>
<p>Lastly, money rewards can help disrupt the activities of organised crime networks. Governments can fuel distrust among accomplices by offering rewards to the first self-reporting offender. In South Korea, for example, money incentives were useful in <a href="https://knowledgehub.transparency.org/assets/uploads/helpdesk/Whistleblower-Reward-Programmes-2018.pdf#page=4">weakening cartels</a> that monopolised the sugar market in the early 2000s.</p>
<h2>The dangers</h2>
<p>One danger is that money rewards could lead to an increase in unreliable reports. That would increase the workload of the government and use state resources fruitlessly. A possible counter measure could be to introduce stiff penalties for frivolous and malicious reports.</p>
<p>In some countries, such as Ghana, money rewards are only given to people who report corruption to specified government institutions. Usually, though, whistleblowers are expected to first report within their institutions. The downside is that they could wait until the corrupt activities are serious enough to warrant reporting externally. Rewards could thus undermine internal reporting channels. </p>
<p>Where people have an opportunity to get a substantial monetary reward, a “lottery mindset” might set in. People might report simply to get their hands on a reward. That could create distrust in the work environment and the functionality of the institution might suffer.</p>
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Read more:
<a href="https://theconversation.com/corruption-in-south-africa-whistleblower-protection-law-is-being-reformed-but-it-may-not-go-far-enough-209916">Corruption in South Africa: whistleblower protection law is being reformed - but it may not go far enough</a>
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<p>Lastly, money rewards could <a href="https://www.academia.edu/download/58344623/Whistleblower-Reward-and-Systems-Implementation-Effects-on-Whistleblowing-in-Organisations.pdf">commoditise whistleblowing</a>. People might no longer blow the whistle out of public service. This might encourage certain criminal activities such as cyber hacking and breaches of privacy to get information that could be traded for these rewards. </p>
<h2>What needs to happen</h2>
<p>First of all, South African lawmakers should review current laws. Some existing provisions could be slightly adapted to provide for rewards. For example, the <a href="https://www.gov.za/documents/national-environmental-management-act">National Environmental Management Act</a> already provides for whistleblowers to receive a reward where their information is instrumental to the imposition of a fine. The police also regularly provide <a href="https://www.sanews.gov.za/south-africa/n-west-police-offer-reward-information-police-murder">financial rewards</a> to informants.</p>
<p>Lawmakers should carefully weigh up the pros and cons of whistleblower rewards in the fight against corruption. But whistleblowers should get both support and compensation. No one should be penalised for being a good citizen. Whistleblower rewards can save state resources, but care should be taken to ensure they don’t create new opportunities for malfeasance.</p><img src="https://counter.theconversation.com/content/212118/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Johandri Wright receives funding from the National Research Foundation and the University of the Western Cape. </span></em></p>Whistleblowers should be entitled to financial support. But that has potential costs as well as benefits.Johandri Wright, Postdoctoral Fellow, University of the Western CapeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2120772023-08-25T15:09:18Z2023-08-25T15:09:18ZLucy Letby: child murder case highlights need to regulate managers and improve whistleblowing procedures<p>The recent conviction of Lucy Letby, the neonatal nurse who murdered seven infants and attempted to murder six others while working at the Countess of Chester Hospital between 2015-2016, has raised fundamental questions about how <a href="https://www.theguardian.com/commentisfree/2023/aug/24/lucy-letby-serial-killer-forensic-psychologist-murderer">something like this could have happened</a> – and why it took so long to stop her.</p>
<p>The fact is attempts were made to stop her. <a href="https://www.independent.co.uk/news/uk/crime/lucy-letby-consultants-police-child-itv-news-b2395581.html">Two medical consultants</a>, Dr Stephen Brearey and Dr Ravi Jayaram, both raised concerns about unexplained infant deaths as early as July 2015. By October 2015, both brought specific concerns about Letby, who had been on duty during each of the deaths, to the senior director of nursing. </p>
<p>But both have related how they were rebuffed by hospital management at each stage of the process. Dr Jayaram even revealed he was told by management “<a href="https://www.bbc.co.uk/news/uk-england-merseyside-64802048">not to make a fuss</a>”. It wasn’t until June 2016, after repeated complaints, that Letby was finally removed from her clinical duties.</p>
<p>Common sense would dictate that if a senior doctor raised concerns with managers, even informally, it would be taken seriously. This apparently wasn’t the case – nor is it the first time an NHS doctor’s concerns have been ignored by senior management. This highlights an urgent need to change the structure of the NHS to ensure managers and executives are held to account for the decisions they make.</p>
<h2>Refusal to act</h2>
<p>The NHS is an inherently hierarchical organisation, with many layers of management. </p>
<p>Clinical managers are typically clinicians (such as nurses) with managerial responsibilities. These middle managers oversee operations in their own clinical areas.</p>
<p>There are also senior managers, who often have no clinical experience. These managers have little or no contact with ward staff. They manage the hospital at the executive level, looking at finances, human resources and the hospital’s reputation.</p>
<p>In hospitals such as the Countess of Chester, most routine decisions are made by middle management. If there’s problems with staff on the ward, it’s normally up to the unit manager to decide whether or not these concerns are escalated to senior management.</p>
<p>The unit manager in this case presumably would have known Letby personally – and given that the evidence against Letby was largely circumstantial, it would have been very difficult to suspend or even investigate Letby at first. </p>
<p>Even once the unit manager and senior clinicians brought their concerns again to the attention of more senior management, evidence shared as part of the trial shows hospital executives <a href="https://www.theguardian.com/uk-news/2023/aug/19/trust-me-im-a-nurse-why-wasnt-lucy-letby-stopped-as-months-of-went-by">pushed back</a> – refusing to meet with them, shutting down suggestions that police needed to be involved and even ordering them to <a href="https://www.theguardian.com/uk-news/2023/aug/19/doctors-were-forced-to-apologise-for-raising-alarm-over-lucy-letby-and-baby-deaths">write an apology</a> to Letby for raising concerns about her.</p>
<p>Brearey and Jayaram suggested that executives were <a href="https://www.dailymail.co.uk/news/article-12434049/Bosses-sociology-degrees-making-life-death-decisions-Lucy-Letby-whistleblower-leads-calls-regulate-NHS-managers-warns-speak-treated-problem.html">attempting to minimise</a> any <a href="https://www.itv.com/news/granada/2023-08-19/letby-hospital-accused-of-trying-to-protect-its-reputation-before-babies-safety">reputational damage</a> to the unit and, by extension, the hospital. The decisions of hospital executives will be investigated as part of a public inquiry.</p>
<h2>Freedom to Speak Up</h2>
<p>There’s a long history in the NHS of lone whistleblowers being pilloried for trying to raise concerns about failings in patient care. This is what led to the <a href="http://freedomtospeakup.org.uk/wp-content/uploads/2014/07/F2SU_web.pdf">Freedom to Speak Up review</a>, which investigated how organisations dealt with concerns raised by NHS staff. Ironically, the report was published in 2015.</p>
<p>The review found NHS employees were often afraid of raising concerns out of fear of victimisation or the worry they wouldn’t be listened to. Many also faced isolation and bullying when they did speak up. </p>
<p>The results of the report led to the <a href="https://www.england.nhs.uk/publication/the-national-speak-up-policy/">Freedom to Speak Up policy</a>, which provides guidance for NHS staff on how they can raise patient safety concerns. A <a href="https://nationalguardian.org.uk/">Freedom to Speak Up Guardian</a> is also now present in every NHS Trust to ensure issues raised are responded to. </p>
<p>At the time Brearey and Jayaram raised their concerns about Letby, this policy didn’t exist. It’s clear from what has been reported so far that this policy may have made a big difference – and could have prevented lives being lost.</p>
<p>But the role that management plays in cases such as this cannot be ignored. Unfortunately, this isn’t the first time that preventing reputational damage has been placed ahead of patient safety. Inquiries into various NHS scandals, such as at the <a href="https://www.theguardian.com/society/2013/feb/19/mid-staffs-never-lose-sight-patients">Bristol Children’s hospital</a>, highlighted management attempts to cover up failings in patient care and avoid negative publicity. </p>
<p>Even with the Freedom to Speak Up Policy, the <a href="https://www.bma.org.uk/news-and-opinion/doctors-must-be-free-and-protected-to-raise-concerns-without-fear">British Medical Association</a> reports that staff are still being victimised for raising concerns. Staff who raise concerns are <a href="https://www.theguardian.com/society/2023/jul/02/nhs-whistleblowers-need-to-be-better-protected-by-the-law-says-bma">often dismissed</a> under the “some other substantial reason” (SOSR) clause which enables organisations, not just the NHS, to sack employees without needing to prove <a href="https://www.gov.uk/dismiss-staff">misconduct or incompetence</a>. Clearly, the policy needs to be improved and legislation passed that would protect staff from dismissal if they do speak up.</p>
<p>In the aftermath of the Letby case, Brearey and Jayaram have both called for hospital managers to be regulated. Regulation would ensure that managers would need to be registered to practise in the same way as health professionals are. This would ensure that managers are held to account for their decisions and that action is taken if they’re found not to be acting in the interests of patient safety.</p>
<p>This will need a significant philosophical shift in the way the NHS is managed. Focus needs to be moved away from managing <a href="https://www.tandfonline.com/doi/epdf/10.1080/14783363.2019.1601995?needAccess=true&role=button">hospitals as businesses</a> to putting patient safety first. Holding NHS managers to account for their decisions may well be the best way to do this.</p>
<p>Jane Tomkinson, Acting Chief Executive Officer at the Countess of Chester Hospital NHS Foundation Trust, said: </p>
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<p>Following the trial of former neonatal nurse Lucy Letby, the Trust welcomes the announcement of an independent inquiry by the Department of Health and Social Care. In addition, the trust will be supporting the ongoing investigation by Cheshire Police. Due to ongoing legal considerations, it would not be appropriate for the Trust to make any further comment at this time.</p>
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<p class="fine-print"><em><span>Robin Lewis receives funding from NHS England Workforce Training end Education</span></em></p>Regulating NHS managers would ensure they’re held to account for their decisions and actions.Robin Lewis, Senior Lecturer in Healthcare, Sheffield Hallam UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2099162023-07-20T14:19:29Z2023-07-20T14:19:29ZCorruption in South Africa: whistleblower protection law is being reformed - but it may not go far enough<figure><img src="https://images.theconversation.com/files/538260/original/file-20230719-21-nyfhcm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Candlelight vigil for slain corruption fighter Babita Deokaran in Johannesburg. </span> <span class="attribution"><span class="source">Photo by Fani Mahuntsi/Gallo Images via Getty Images</span></span></figcaption></figure><p>South Africa is on the path to reforming its law on whistleblowing to provide improved protection for individuals who expose corruption and illegal activity.</p>
<p>The country’s Department of Justice and Constitutional Development recently published a <a href="https://www.justice.gov.za/legislation/invitations/invites.htm">discussion document</a> on the proposed reforms. This first step in reforming the country’s law on whistleblowers is to be welcomed.</p>
<p>Whistleblowers in South Africa have endured severe consequences. These include physical harm, intimidation, and <a href="https://www.news24.com/news24/investigations/sacrificial-lamb-city-of-johannesburg-dismisses-whistleblower-who-flagged-r82bn-irregularities-20230622">loss of jobs</a> and career prospects. Some have been <a href="https://www.dailymaverick.co.za/article/2021-08-24-whistle-blower-slain-after-dropping-her-child-at-school-siu-confirms-babita-deokaran-was-a-witness-in-the-r332m-ppe-scandal/">murdered</a>. Others have <a href="https://www.iol.co.za/capetimes/news/whistle-blower-athol-williams-health-suffers-after-exposing-pariah-bain-and-co-75ada81f-bff5-4cd9-81d7-2c43a62ddc36">fled the country</a>, fearing for their <a href="https://www.enca.com/news/saps-whistleblower-patricia-mashale-flees-sa">lives</a> or <a href="https://www.capetalk.co.za/articles/467736/i-think-de-ruyter-is-at-risk-his-family-probably-too-he-needs-to-take-care">safety</a>.</p>
<p>The <a href="https://www.statecapture.org.za/site/information/reports">Zondo Commission</a>, which investigated state capture and corruption within government departments and state-owned entities, <a href="https://www.gov.za/sites/default/files/gcis_document/202204/state-capture-commission-report-part-iv-vol-iv.pdf">highlighted whistleblowing</a> as one of the most effective tools to combat corruption. The discussion document on reform builds on <a href="https://www.gov.za/sites/default/files/gcis_document/202210/state-capture-commission-response.pdf">President Cyril Ramaphosa’s response</a> to the commission’s findings and recommendations.</p>
<p>I am a company law professor with many years of research in corporate governance – including <a href="https://www.researchgate.net/publication/365174166_THE_ESCALATION_OF_CORPORATE_CORRUPTION_DURING_THE_COVID-19_PANDEMIC_IS_THE_ANTI-CORRUPTION_FRAMEWORK_OF_THE_COMPANIES_ACT_71_OF_2008_ADEQUATE">corruption</a> and <a href="https://www.cambridge.org/core/journals/journal-of-african-law/article/critical-analysis-of-the-corporate-whistleblowing-provisions-of-the-south-african-companies-act/B993CF1BA5F46C991A7F1C153AFD220B">whistleblowing</a> – in South Africa. My recent analysis of the current whistleblowing regulations found that they do not go far enough in protecting or encouraging corporate whistleblowers. The new discussion document has many commendable proposals, in my view. But these may not go far enough.</p>
<p>While the government proposals would expand the scope of protection under the <a href="https://www.justice.gov.za/legislation/acts/2000-026.pdf">Protected Disclosures Act</a>, they do not address the challenge of whistleblowers having to navigate a complex and inconsistent web of legislation currently in place. </p>
<p>What South Africa needs is a consolidated legislative framework that governs whistleblowing in the various sectors. The requirements for protection would be the same in the different sectors. This would bring clarity and consistency across sectors. It would also make the laws easy to understand and to rely on.</p>
<h2>Financial incentives</h2>
<p>The discussion document <a href="https://www.justice.gov.za/legislation/invitations/20230629-Whistleblower-Protection-Regime.pdf#page=44.">rejects</a> the idea of providing financial rewards to whistleblowers. It opts instead for a fund to assist those who are dismissed and who face severe financial hardship for blowing the whistle.</p>
<p>While the fund may provide some relief to unemployed whistleblowers, it does not go far enough to give whistleblowers an incentive to come forward.</p>
<p>Without adequate incentives, whistleblowers may hesitate to come forward and expose corruption. Given the alarming <a href="https://www.transparency.org/en/cpi/2022">levels of corruption</a> in South Africa, it is imperative that whistleblowers are incentivised to step forward and that their <a href="https://theconversation.com/south-africas-corporate-whistleblowers-dont-get-enough-protection-what-needs-to-change-201006">protection</a> is ensured.</p>
<p>It is controversial whether whistleblowers should be rewarded for their disclosures. This is because of moral and ethical concerns. Some worry about potential ulterior motives taking the place of a genuine desire to expose wrongdoing when rewards are offered. Another concern is that whistleblower awards may encourage fraudulent reporting and false allegations.</p>
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<a href="https://theconversation.com/whistleblowers-are-key-to-fighting-corruption-in-south-africa-it-shouldnt-be-at-their-peril-168134">Whistleblowers are key to fighting corruption in South Africa. It shouldn't be at their peril</a>
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<p>However, in a highly corrupt environment, the need to expose corruption should outweigh concerns about motives. Strict penalties could be put in place in the legislative framework to overcome concerns about fraudulent reporting and false allegations.</p>
<p>In my <a href="https://www.cambridge.org/core/journals/journal-of-african-law/article/critical-analysis-of-the-corporate-whistleblowing-provisions-of-the-south-african-companies-act/B993CF1BA5F46C991A7F1C153AFD220B">research</a> I found that the benefits of a whistleblower award system in South Africa outweigh the potential drawbacks. Such a system may encourage whistleblowers to disclose high-quality information that would otherwise be difficult to obtain. This is crucial in a country with high levels of corruption but low rates of reported wrongdoing.</p>
<h2>Other proposals for reform</h2>
<p>The justice department suggests that whistleblowers under the <a href="https://www.justice.gov.za/legislation/acts/2000-026.pdf">Protected Disclosures Act</a> should have the right to request state protection if they reasonably believe that their lives or those of their immediate family members are in danger. This <a href="https://www.justice.gov.za/legislation/invitations/20230629-Whistleblower-Protection-Regime.pdf#page=82">proposal</a> is commendable because of the risks whistleblowers face in South Africa.</p>
<p>It also proposes that criminal offences should be imposed on certain persons or organisations that ignore whistleblowers’ disclosures, such as the <a href="https://www.pprotect.org/">Public Protector</a> and the <a href="https://www.psc.gov.za/">Public Service Commission</a>. <a href="https://legal-aid.co.za/">Legal Aid South Africa</a> should provide legal assistance to whistleblowers at the justice minister’s discretion.</p>
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Read more:
<a href="https://theconversation.com/south-africas-corporate-whistleblowers-dont-get-enough-protection-what-needs-to-change-201006">South Africa's corporate whistleblowers don't get enough protection: what needs to change</a>
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<p>Another <a href="https://www.justice.gov.za/legislation/invitations/20230629-Whistleblower-Protection-Regime.pdf#page=92">proposal</a> is to allow whistleblowers who believe that detrimental action has been taken against them to file complaints with the <a href="https://www.sahrc.org.za/">Human Rights Commission</a>. The commission will have the authority to decide whether to investigate or dismiss the complaint, or refer it to a court to determine whether detrimental action was indeed taken.</p>
<p>This proposal would enhance the commission’s powers in managing whistleblower complaints. It is, however, crucial to establish effective processes and to avoid prolonged delays in addressing complaints.</p>
<h2>Consolidated legislative framework</h2>
<p>The main statutes governing whistleblowing in South Africa are the <a href="https://www.justice.gov.za/legislation/acts/2000-026.pdf">Protected Disclosures Act of 2000</a> and the <a href="https://www.gov.za/documents/companies-act">Companies Act of 2008</a>.</p>
<p>But there are at least nine other statutes governing whistleblowing. These include: </p>
<ul>
<li><p>the <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">constitution</a></p></li>
<li><p><a href="https://www.gov.za/documents/labour-relations-act">Labour Relations Act</a> </p></li>
<li><p><a href="https://www.gov.za/documents/prevention-and-combating-corrupt-activities-act-0">Prevention and Combating of Corrupt Activities Act</a> </p></li>
<li><p><a href="https://www.gov.za/documents/financial-intelligence-centre-act">Financial Intelligence Centre Act</a></p></li>
<li><p><a href="https://www.gov.za/documents/national-environmental-management-act">National Environmental Management Act</a>.</p></li>
</ul>
<p>This fragmented regulation creates a confusing web. It also results in inconsistent protection. The complexity and vagueness may also discourage people from disclosing wrongdoing.</p>
<p>The proposed reforms focus at this stage on enhancing the <a href="https://www.justice.gov.za/legislation/acts/2000-026.pdf">Protected Disclosures Act</a>, but not the other statutes related to whistleblowing. </p>
<p>The act protects whistleblowers who are employees in the public and private sectors from being subjected to occupational detriments, such as being dismissed, demoted, suspended or disciplined. The justice department proposes widening its protections to include persons who are not in an employer-employee relationship.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/whistleblowers-and-tax-evasion-what-south-africa-needs-to-add-to-its-toolbox-178055">Whistleblowers and tax evasion: what South Africa needs to add to its toolbox</a>
</strong>
</em>
</p>
<hr>
<p>Whistleblowing is neither self-serving nor socially reprehensible. It is an essential weapon in the fight against corruption. Given South Africa’s staggering and escalating corruption levels, a strong legal framework is needed which both encourages whistleblowing and effectively protects whistleblowers. </p>
<p>The reforms are still in the early stages. They require further development before being drafted into an amendment bill. The <a href="https://www.justice.gov.za/legislation/invitations/invites.htm">discussion document</a> is open to public comment until 15 August 2023. It remains to be seen what effect the public comments will have on the proposed reforms. </p>
<p>Hopefully, the final reforms will provide stronger encouragement and incentives for whistleblowers, considering the risks they face while bravely serving society.</p><img src="https://counter.theconversation.com/content/209916/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rehana Cassim does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Given South Africa’s staggering corruption levels, a strong legal framework is needed to encourage and protect whistleblowers.Rehana Cassim, Professor in Company Law, University of South AfricaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2042442023-05-11T12:14:19Z2023-05-11T12:14:19Z‘Courage is contagious’: Daniel Ellsberg’s decision to release the Pentagon Papers didn’t happen in a vacuum<figure><img src="https://images.theconversation.com/files/524975/original/file-20230508-245278-dy5r7b.jpg?ixlib=rb-1.1.0&rect=6%2C7%2C1016%2C689&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Daniel Ellsberg addresses supporters during an anti-war protest in 2010 in front of the White House.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/daniel-ellsberg-former-military-analyst-who-released-the-news-photo/107633814?adppopup=true">Karen Bleier/AFP via Getty Images</a></span></figcaption></figure><p>In 1971, when Daniel Ellsberg arrived at a federal court in Boston, a journalist asked if he was concerned about the prospect of going to prison for leaking a 7,000-page top-secret history of the Vietnam War. Ellsberg responded with <a href="https://www.umass.edu/ellsberg/">a question of his own</a>: “Wouldn’t you go to prison to help end this war?” </p>
<p>The classified documents Ellsberg released to The New York Times and 18 other newspapers were quickly dubbed <a href="https://timesmachine.nytimes.com/timesmachine/1971/06/13/170503942.html?pageNumber=1">the Pentagon Papers</a>. They exposed more than two decades of government deceit about U.S. involvement in Vietnam, from 1945 to 1968.</p>
<p>Ellsberg <a href="https://www.washingtonpost.com/obituaries/2023/06/16/daniel-ellsberg-pentagon-papers-dead/">died June 16, 2023</a>, three months after announcing that he had been diagnosed with terminal cancer. To millions of Americans <a href="https://www.penguinrandomhouse.com/books/288895/patriots-by-christian-g-appy/">who opposed the war</a>, his whistleblowing was an act of patriotism – but millions of others regarded it as treason. In <a href="http://scua.library.umass.edu/services-at-scua/research-guides/daniel-ellsberg-papers/">Ellsberg’s own papers</a> at UMass Amherst, where <a href="https://www.umass.edu/history/member/christian-appy">I teach history</a> and direct <a href="https://www.umass.edu/ellsberg/initiative/">the Ellsberg Initiative for Peace and Democracy</a>, you can read hundreds of letters to him from ordinary citizens expressing both extremes: the highest possible praise, and vitriolic, often antisemitic, hostility.</p>
<p>How a young war planner became a peace activist is one of the most striking conversion stories in American history. But Ellsberg’s political and moral transformation did not happen in a vacuum. It reflected a titanic shift in public attitudes about the Vietnam War. The massive anti-war movement inspired and reinforced Ellsberg’s dissent – and, in turn, his example has emboldened activists and whistleblowers in the decades since.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/524966/original/file-20230508-247807-ifidbq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A pile of old papers, mostly typed with handwritten notes on them, and an ID card." src="https://images.theconversation.com/files/524966/original/file-20230508-247807-ifidbq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/524966/original/file-20230508-247807-ifidbq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=415&fit=crop&dpr=1 600w, https://images.theconversation.com/files/524966/original/file-20230508-247807-ifidbq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=415&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/524966/original/file-20230508-247807-ifidbq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=415&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/524966/original/file-20230508-247807-ifidbq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=522&fit=crop&dpr=1 754w, https://images.theconversation.com/files/524966/original/file-20230508-247807-ifidbq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=522&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/524966/original/file-20230508-247807-ifidbq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=522&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Some of the papers from the archive of Daniel Ellsberg pictured at UMass Amherst in 2019.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/some-of-the-papers-from-the-archive-of-daniel-ellsberg-are-news-photo/1170829568?adppopup=true">Jonathan Wiggs/The Boston Globe via Getty Images</a></span>
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</figure>
<h2>A ‘knightly calling’</h2>
<p>Once a fervent Cold Warrior, Ellsberg joined the Marine Corps in the mid-1950s, earned his doctorate in economics from Harvard and in 1959 became a nuclear war analyst for the Rand Corp., a think tank that, at the time, was funded mostly by the Air Force. In 1964, he was one of the brainy young analysts, dubbed “whiz kids” by the media, that <a href="https://slate.com/news-and-politics/2009/07/death-of-the-whiz-kid-robert-strange-mcnamara-1916-2009.html">Defense Secretary Robert McNamara</a> recruited to the Pentagon.</p>
<p>Throughout his 20s and early 30s, Ellsberg believed that serving the president <a href="https://www.penguinrandomhouse.com/books/288895/patriots-by-christian-g-appy/">was a “knightly calling</a>,” even if it required lying to the public. So how did he come to believe that loyalty to truth-telling <a href="https://www.simonandschuster.com/books/Papers-on-the-War/Daniel-Ellsberg/9781439193761">superseded loyalty to the chief of state</a>?</p>
<p>From 1965 to 1967, Ellsberg went to Vietnam for the State Department, believing the war was a challenging but necessary part of a global struggle to contain communism. Yet he became deeply disillusioned, convinced that the war could not be won. He was particularly disturbed by indiscriminate <a href="https://us.macmillan.com/books/9781250045065/killanythingthatmoves">U.S. bombing and shelling</a>, most of it on South Vietnam, the land the U.S. claimed to be protecting. About 20,000 American lives had already been lost, and roughly a million Vietnamese people had been killed, about half of them civilians. By the war’s end eight years later, 58,000 Americans and 3 million Vietnamese had died. </p>
<h2>Pivotal moments</h2>
<p>By 1968, Ellsberg was trying to persuade U.S. leaders to seek a negotiated end to the war. On his own time, meanwhile, he was beginning to meet anti-war activists who advocated a bottom-up effort to demand immediate U.S. withdrawal.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/524970/original/file-20230508-195023-603w13.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A black and white photo of a huge crowd seated in a park, with skyscrapers in the background." src="https://images.theconversation.com/files/524970/original/file-20230508-195023-603w13.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/524970/original/file-20230508-195023-603w13.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=428&fit=crop&dpr=1 600w, https://images.theconversation.com/files/524970/original/file-20230508-195023-603w13.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=428&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/524970/original/file-20230508-195023-603w13.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=428&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/524970/original/file-20230508-195023-603w13.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=538&fit=crop&dpr=1 754w, https://images.theconversation.com/files/524970/original/file-20230508-195023-603w13.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=538&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/524970/original/file-20230508-195023-603w13.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=538&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Thousands of demonstrators sit in Sheep Meadow in Central Park in New York City protesting the war in Vietnam on April 27, 1968.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/thousands-of-demonstrators-sit-in-sheep-meadow-in-central-news-photo/1320037070?adppopup=true">Dick Yarwood/Newsday RM via Getty Images</a></span>
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</figure>
<p>One of them, <a href="https://www.gazettenet.com/Ellsberg-hg-102819-29645137">a Gandhian pacifist named Janaki Natarajan</a>, convinced Ellsberg that he should study leading advocates of nonviolent resistance, such as <a href="https://www.americanrhetoric.com/speeches/mlkatimetobreaksilence.htm">Martin Luther King Jr.</a>, <a href="https://xroads.virginia.edu/%7EHyper2/thoreau/civil.html">Henry David Thoreau</a> and <a href="https://www.warresisters.org/store/revolution-and-equilibrium-barbara-deming">Barbara Deming</a>. To this day, one of Ellsberg’s favorite quotations comes from Thoreau’s “<a href="https://xroads.virginia.edu/%7EHyper2/thoreau/civil.html">Civil Disobedience</a>”: “Cast your whole vote, not a strip of paper merely, but your whole influence.”</p>
<p>But most galvanizing for Ellsberg were the Pentagon Papers, which he helped compile for McNamara. Full of technocratic euphemisms for <a href="https://nsarchive2.gwu.edu/coldwar/documents/episode-11/02.pdf">lethal policies</a>, the documents convinced him that the entire history of U.S. involvement in Vietnam <a href="https://www.penguinrandomhouse.com/books/307777/american-reckoning-by-christian-g-appy/">was marked by deception</a>: that it was an aggressive counterrevolution that denied the Vietnamese people the right of self-determination, disguised as a battle for democracy.</p>
<p>Ellsberg had first viewed the Vietnam War as a just cause to be won, then as an unwinnable stalemate to be gradually abandoned. By late 1969, however, he saw it as an immoral war to be ended unilaterally and immediately.</p>
<p>Millions of Americans had already come to that conclusion. Back in 1965, in fact, Ellsberg’s future wife, Patricia Marx, <a href="https://www.ellsberg.net/secrets-a-memoir-of-vietnam-and-the-pentagon-papers/">agreed to a first date</a> only if it included an anti-war demonstration in Washington.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/524968/original/file-20230508-180826-czd1cx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An older man in a suit flashes a peace sign, one arm around an older woman in an orange top and black slacks." src="https://images.theconversation.com/files/524968/original/file-20230508-180826-czd1cx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/524968/original/file-20230508-180826-czd1cx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=900&fit=crop&dpr=1 600w, https://images.theconversation.com/files/524968/original/file-20230508-180826-czd1cx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=900&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/524968/original/file-20230508-180826-czd1cx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=900&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/524968/original/file-20230508-180826-czd1cx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1130&fit=crop&dpr=1 754w, https://images.theconversation.com/files/524968/original/file-20230508-180826-czd1cx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1130&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/524968/original/file-20230508-180826-czd1cx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1130&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Daniel Ellsberg and his wife, Patricia Marx Ellsberg, attend the Cinema for Peace gala in Berlin in 2019.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/daniel-ellsberg-and-his-wife-patricia-marx-ellsberg-attend-news-photo/1097988162?adppopup=true">Tristar Media/Getty Images</a></span>
</figcaption>
</figure>
<p>Just as he finished reading the Pentagon Papers, Ellsberg attended <a href="https://credo.library.umass.edu/view/full/mums1093-s10a-i003">a War Resisters League conference</a> that proved pivotal to his decision to leak the documents. There he met a few of the 3,250 young Americans who were sentenced to up to three years in prison for <a href="https://uncpress.org/book/9780807854365/confronting-the-war-machine/">resisting the draft</a>. Deeply moved by their courage, Ellsberg asked himself <a href="https://www.penguinrandomhouse.com/books/288895/patriots-by-christian-g-appy/">what he could do</a> if he were willing to risk prison and his career.</p>
<p>A month later, with help from his friend and Rand colleague Anthony Russo, Ellsberg began photocopying the Pentagon Papers. </p>
<h2>Going public</h2>
<p>For the next year and a half, Ellsberg tried to get anti-war members of Congress to put the documents into the congressional record and hold hearings. None was willing, so he <a href="https://fair.org/home/action-alert-what-can-now-be-told-by-nyt-about-pentagon-papers-isnt-actually-true/">eventually offered them</a> to war correspondent Neil Sheehan at The New York Times – the first newspaper to report on the papers’ revelations.</p>
<p>Public interest was scant, however, until President Richard Nixon <a href="https://theconversation.com/how-richard-nixons-obsession-with-daniel-ellsberg-and-the-pentagon-papers-sowed-the-seeds-for-the-presidents-downfall-159113">began attacking the press and Ellsberg</a>. Although the Pentagon Papers did not include Nixon’s time in office, the White House feared that Ellsberg might leak more documents – especially about Nixon’s 1968 effort to <a href="https://www.nytimes.com/2017/01/02/us/politics/nixon-tried-to-spoil-johnsons-vietnam-peace-talks-in-68-notes-show.html">sabotage the Vietnam peace talks</a> to improve his odds of winning the presidential election.</p>
<p>The government indicted Ellsberg on a dozen felony counts with a possible 115-year prison sentence. He was the first American ever <a href="https://www.mtsu.edu/first-amendment/article/1045/espionage-act-of-1917">criminally charged under the Espionage Act of 1917</a> for disclosing classified documents to the press and public rather than to a foreign agent or nation.</p>
<p>Ellsberg was spared prison. Late in his 1973 trial, Watergate prosecutors discovered that the White House <a href="https://www.washingtonpost.com/politics/break-in-memo-sent-to-ehrlichman/2012/06/04/gJQAKsRCJV_story.html">had authorized crimes</a> against him, including a break-in at his psychiatrist’s office, in a failed search for incriminating information. The judge had little choice but to declare a mistrial.</p>
<h2>Post-Papers life</h2>
<p>Ellsberg was a free man, but the personal cost of his dissent was severe. He lost many friends and had to forge a new career as a writer and lecturer. For more than five decades he has been an activist and has been arrested for nonviolent civil disobedience some 80 times on behalf of peace, <a href="https://www.umass.edu/ellsberg/featured-documents/nuclear-weapons/">nuclear disarmament</a>, government accountability and First Amendment rights. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/524969/original/file-20230508-244517-ed82s3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="On a snowy day, a police officer escorts a man whose hands are in zip ties, as police on horses look on." src="https://images.theconversation.com/files/524969/original/file-20230508-244517-ed82s3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/524969/original/file-20230508-244517-ed82s3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=445&fit=crop&dpr=1 600w, https://images.theconversation.com/files/524969/original/file-20230508-244517-ed82s3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=445&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/524969/original/file-20230508-244517-ed82s3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=445&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/524969/original/file-20230508-244517-ed82s3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=559&fit=crop&dpr=1 754w, https://images.theconversation.com/files/524969/original/file-20230508-244517-ed82s3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=559&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/524969/original/file-20230508-244517-ed82s3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=559&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Daniel Ellsberg flashes two peace signs behind his back while being arrested during an anti-war protest in front of the White House in 2010.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/daniel-ellsberg-former-military-analyst-who-released-the-news-photo/107633304?adppopup=true">Win McNamee/Getty Images</a></span>
</figcaption>
</figure>
<p>To most government insiders, Ellsberg’s mutiny was an unpardonable breach of the national security state. No one with so much access to power and privileged information in the U.S. government has ever broken so radically with the policies they once supported.</p>
<p>Yet 50 years later, Ellsberg was <a href="https://rightlivelihood.org/the-change-makers/find-a-laureate/daniel-ellsberg/">widely lauded</a>, even by many people critical of <a href="https://www.newyorker.com/magazine/2016/12/19/daniel-ellsberg-edward-snowden-and-the-modern-whistle-blower">the younger whistleblowers</a> <a href="https://www.nbcnews.com/feature/edward-snowden-interview/edward-snowden-says-he-was-inspired-pentagon-papers-whistleblower-n117556">he inspired</a> and defended. Since Sept. 11, 2001, more than a dozen other people have faced criminal charges under the Espionage Act, and some – including <a href="https://www.youtube.com/watch?v=3VCOmUfgBZE">Jeffrey Sterling</a>, <a href="https://www.npr.org/sections/thetwo-way/2013/08/03/208602113/pentagon-papers-leaker-daniel-ellsberg-praises-snowden-manning">Chelsea Manning</a>, <a href="https://www.washingtonpost.com/local/legal-issues/daniel-hale-drone-leak-sentence/2021/07/27/7bb46dd6-ee14-11eb-bf80-e3877d9c5f06_story.html">Daniel Hale</a> and <a href="https://www.nytimes.com/2021/06/14/us/politics/reality-winner-is-released.html">Reality Winner</a> – have been incarcerated. </p>
<p>In early March 2023, Ellsberg made public <a href="https://www.commondreams.org/opinion/daniel-ellsberg-pentagon-papers">a letter to friends and supporters</a> announcing that <a href="https://www.commondreams.org/opinion/daniel-ellsberg-pentagon-papers">he had only months to live</a>. He closed by thanking fellow activists whose “dedication, courage, and determination to act have inspired and sustained my own efforts.” </p>
<p>Ellsberg’s life and legacy are reminders that individual acts of moral courage depend on examples set by others, and they have the potential to spark more, far into the future. As Ellsberg often said, “<a href="https://www.theguardian.com/world/2021/jun/13/daniel-ellsberg-interview-pentagon-papers-50-years">civil courage is contagious</a>.”</p>
<p><em>This article was updated to include Ellsberg’s death on June 16, 2023.</em></p><img src="https://counter.theconversation.com/content/204244/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Christian Appy is the director of the Ellsberg Initiative for Peace and Democracy at the University of Massachusetts, Amherst.
He is currently writing a biography of Ellsberg.</span></em></p>The Vietnam War whistleblower, who died on June 16, 2023, wrestled with his decision to leak thousands of pages of government documents.Christian Appy, Professor of History, UMass AmherstLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2019042023-03-23T21:05:15Z2023-03-23T21:05:15ZWhy is it so difficult to handle whistleblower reports?<figure><img src="https://images.theconversation.com/files/516756/original/file-20230321-28-634uio.jpg?ixlib=rb-1.1.0&rect=1358%2C9%2C4714%2C3182&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The European Union has recently strengthened its regulations aimed at protecting whistleblowers.</span> <span class="attribution"><span class="source">(Shutterstock)</span></span></figcaption></figure><p>Whistleblower rights are on the rise, it seems. In February 2023, the Grand Chamber of the <a href="https://answerconnect.cch.com/document/gfn01162909/news/echr-reverses-and-backs-luxleaks-whistleblower-halet">European Court of Human Rights overturned an earlier criminal conviction</a> of Raphaël Halet, one of the <a href="https://globalfreedomofexpression.columbia.edu/cases/the-case-of-luxleaks/">LuxLeaks</a> whistleblowers that disclosed tax avoidance practices at PricewaterhouseCoopers. </p>
<p>Meanwhile in France, the Mediator drug case still drags on after more than a decade. Pharmaceutical firm Servier <a href="https://www.reuters.com/business/healthcare-pharmaceuticals/french-drug-company-servier-launches-mediator-appeal-2023-01-09/">recently launched an appeal against convictions it was handed in 2021</a> for concealing the risks of the Mediator weight-loss pill. Irène Frachon, the doctor that discovered the drug’s potentially fatal side effects, <a href="https://www.mediapart.fr/en/journal/france/240919/whistleblowing-doctor-who-took-french-pharma-giant-over-killer-drug?onglet=full">still maintains her courageous whistleblowing efforts</a>.</p>
<p>The protection of whistleblowers in Europe is about to get another boost. In transposing the <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32019L1937">EU Whistleblowing Directive</a>, the 27 member states are updating or introducing new legislation. A key feature of the directive is that organizations of 50 or more employees are obliged to have an internal speak-up system.</p>
<p><a href="https://doi.org/10.1007/s10551-017-3727-8">Existing research indicates</a> 95 per cent of people initially blow the whistle inside their organization before considering going external. Yet, companies underestimate what it takes to make internal whistleblowing successful. </p>
<p>The key difficulty is less about getting more people to use company whistleblowing channels and more about how to handle whistleblowing cases effectively. A well-known example is that of <a href="https://www.ft.com/content/cb9eeeb6-3dd5-11ea-a01a-bae547046735?platform=hootsuite">Yasmine Motarjemi</a> who, as a food safety expert at Nestlé, blew the whistle about harmful baby food products inside the company. The company ended up putting the head of that faulty product line in charge of Motarjemi. Soon after, she was fired.</p>
<h2>Opposing views</h2>
<p>In our <a href="https://doi.org/10.1007/s10551-022-05176-0">newly published research in the <em>Journal of Business Ethics</em></a>, we explain what makes whistleblowing reports so difficult to handle.</p>
<p>On one side are whistleblowers who usually don’t provide all relevant information, and who might have unrealistic expectations about the whistleblowing process. On the other side is a company’s top management who just want to get on with things and might have expectations that are…well, unrealistic.</p>
<p>Caught in the middle are compliance officers, or integrity professionals, who want to do their jobs well but are torn apart by two sides pulling in opposite directions.</p>
<figure class="align-center ">
<img alt="A middle-aged woman seen from the shoulders up" src="https://images.theconversation.com/files/516766/original/file-20230321-26-becxjl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/516766/original/file-20230321-26-becxjl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=442&fit=crop&dpr=1 600w, https://images.theconversation.com/files/516766/original/file-20230321-26-becxjl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=442&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/516766/original/file-20230321-26-becxjl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=442&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/516766/original/file-20230321-26-becxjl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=555&fit=crop&dpr=1 754w, https://images.theconversation.com/files/516766/original/file-20230321-26-becxjl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=555&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/516766/original/file-20230321-26-becxjl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=555&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Irène Frachon, the doctor who discovered the drug Mediator could have fatal side effects, arrives at a Paris courthouse in September 2019.</span>
<span class="attribution"><span class="source">(AP Photo/Michel Euler)</span></span>
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</figure>
<p>We used agency theory to gain insights into what causes the handling of whistleblowing to be so difficult and recommend some solutions. <a href="https://www.sciencedirect.com/topics/social-sciences/agency-theory">Agency theory</a> relates to situations in which a person (the principal) delegates a task to someone else (the agent). The agent then acts on behalf of the principal. </p>
<p>Difficulties arise when agents and principals have different interests, information and time horizons. In the case of whistleblowing from inside a company, a peculiar situation arises. Top management delegates the task of handling whistleblower cases to a compliance officer. But the whistleblower also delegates a task to compliance officers — to investigate and stop the wrongdoing they are reporting. </p>
<p>These tasks are only seemingly the same, but in reality compliance officers are agents with two principals: whistleblowers and top management. This double agency makes it extremely difficult for compliance officers to handle whistleblowing. Let’s take a closer look at what exactly causes these difficulties.</p>
<h2>Three types of problems</h2>
<p>We found there are three types of problems compliance officers face: unaligned goals, misunderstood efforts and differences in risk appreciation. These are typical of agency relationships, but specific for internal whistleblowing is that compliance officers are squeezed between two principals — hence, the double trouble.</p>
<p>First, we found the two parties have unaligned goals in how they understand what the good handling of a whistleblowing report is. Whistleblowers are focused on outcome, while top management is focused on reducing negative consequences for the organization. The interest of compliance officers lies in due process and conducting a proper fact-finding investigation process. </p>
<p>Second, the efforts by compliance officers are often misunderstood. Whistleblowers are unable to fully understand the efforts of compliance officers because officers can’t disclose the details of an investigation. Top management also can’t fully understand how compliance officers handle reports because it measures effort in terms of the number of reports and closed cases. </p>
<p>Third, both whistleblowers and top management take risks with compliance officers, but in very different ways. Whistleblowers take risks because compliance officers might not take their concerns seriously or keep their identity confidential. Top management take risks by putting their organization’s reputation and the responsibility of avoiding litigation in the hands of compliance officers.</p>
<h2>Psychological costs</h2>
<p>Agency theory allows us to identify financial and non-financial costs related to agency problems. Whistleblowers and top management each have their own monitoring costs when it comes to observing and controlling compliance officers’ behaviour to reduce their own risk taking. </p>
<p>We find, however, that compliance officers bear double the cost in trying to be a trustworthy agent for both principals. Towards whistleblowers, they want to be credible investigators and safeguards of confidentiality. But they also bear the cost of psychological stress because they cannot be fully transparent to whistleblowers. </p>
<figure class="align-center ">
<img alt="A middle-aged man, with a frustrated look on his face, leans his head against his hand as he looks at paperwork on his desk" src="https://images.theconversation.com/files/516778/original/file-20230321-301-ue24r9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/516778/original/file-20230321-301-ue24r9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/516778/original/file-20230321-301-ue24r9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/516778/original/file-20230321-301-ue24r9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/516778/original/file-20230321-301-ue24r9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/516778/original/file-20230321-301-ue24r9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/516778/original/file-20230321-301-ue24r9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Compliance officers often experience psychological stress when trying to develop a trusting relationship with both whistleblowers and firm management.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
</figcaption>
</figure>
<p>Towards top management, compliance officers want to get employees to report wrongdoings internally and handle these incidents swiftly. But compliance officers bear the cost of psychological stress because they cannot fully control a whistleblower’s next steps.</p>
<h2>A matter of trust</h2>
<p>According to agency theory, conflicts and problems can be resolved by aligning the goals and interests of agents and principals. </p>
<p>Our research indicates that the problems of double-agency in handling whistleblowing can be resolved by empowering compliance officers to reduce their bonding costs vis-à-vis whistleblower and top management. </p>
<p>This can be done in a number of ways, including by publishing performance metrics of the handling process, communicating whistleblowing procedures, making efforts to preserve confidentiality or by giving frequent feedback to whistleblowers.</p>
<p>An alignment of the internal speak-up system with an externally validated benchmark like <a href="https://www.iso.org/standard/65035.html">ISO 37002</a> can also help communicate the trustworthiness of compliance officers to all stakeholders. Top management should receive training on whistleblowing and how to handle reports. Compensation schemes that include a measure of effectiveness of handling whistleblower reports should also be explored. </p>
<p>These governance measures aim to make compliance officers trustworthy leaders of the internal whistleblowing process. Trust is not only required to motivate employees to speak up, but also to assure whistleblowers and top management that the whistleblowing systems actually work.</p>
<p>The strengthened legal protections for whistleblowers across EU member states will force companies to have internal whistleblowing systems in place. It’s crucial that organizations empower compliance officers with strong mandates. A better understanding of the complexity of handling internal whistleblowing could motivate organizations to make internal whistleblowing systems more effective.</p><img src="https://counter.theconversation.com/content/201904/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Wim Vandekerckhove is affiliated with ISO37002 through the British Standards Institute. </span></em></p><p class="fine-print"><em><span>Nadia Smaili et Paulina Arroyo Pardo ne travaillent pas, ne conseillent pas, ne possèdent pas de parts, ne reçoivent pas de fonds d'une organisation qui pourrait tirer profit de cet article, et n'ont déclaré aucune autre affiliation que leur poste universitaire.</span></em></p>Compliance officers, professionals that handle whistleblowing reports, often find themselves caught between two parties with divergent interests — whistleblowers and company management.Wim Vandekerckhove, Professeur en éthique des affaires, EDHEC Business SchoolNadia Smaili, Professor in Accounting (forensic accounting), Université du Québec à Montréal (UQAM)Paulina Arroyo Pardo, Professeure titulaire ESG, Université du Québec à Montréal (UQAM)Licensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1950192022-11-23T05:50:40Z2022-11-23T05:50:40ZHow and why Australian whistleblowing laws need an overhaul: new report<p>Recent developments in Australian whistleblowing cases have shown how critical it is to get our whistleblower protection laws back up to world standards. </p>
<p>Fortunately, there are signs the new government will press ahead with reforms – but what’s involved in truly getting these right?</p>
<p>The importance of whistleblowing has been reinforced by parliamentary debate over Australia’s new National Anti-Corruption Commission (NACC), which resumed this week. On November 10, the <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/National_Anti-Corruption_Commission_Legislation/NACC/Report">Joint Select Committee</a> reviewing the government’s bill expressed unanimous support for “wider-ranging whistleblower protection reforms” to follow, including “specific” consideration of an independent whistleblower protection commission.</p>
<p><a href="https://ministers.ag.gov.au/media-centre/speeches/australian-public-sector-anti-corruption-conference-16-11-2022">Federal Attorney-General Mark Dreyfus</a> has announced reform will start within days, with some “priority amendments” to the whistleblowing law for federal public servants, even as the long awaited anti-corruption body is debated and finalised. He has also flagged there will be more to follow.</p>
<p>How much more, and why is it vital? A <a href="https://www.griffith.edu.au/__data/assets/pdf_file/0031/1657813/Protecting-Australias-Whistleblowers-The-Federal-Roadmap-2022-EMBARGOED-23NOV.pdf">new research report</a>, published today by Griffith University, the Human Rights Law Centre and Transparency International Australia, seeks to present a clear roadmap for getting these reforms right.</p>
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Read more:
<a href="https://theconversation.com/tax-office-whistleblowing-saga-points-to-reforms-needed-in-three-vital-areas-187608">Tax office whistleblowing saga points to reforms needed in three vital areas</a>
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<h2>Expectation vs reality</h2>
<p>In theory, there’s strong consensus in favour of protections for “public interest whistleblowers”. These are the insiders who play a vital role in our integrity systems by speaking up about suspected wrongdoing, usually internally but also to regulators or, if necessary, publicly.</p>
<p>However, protecting whistleblowers often becomes much more controversial in reality, depending on whose interests are affected.</p>
<p>On Monday, federal independent MP Andrew Wilkie – himself a prominent former national security whistleblower – initiated a fresh parliamentary debate in support of stronger protections. He <a href="https://www.theguardian.com/australia-news/2022/nov/21/andrew-wilkies-claims-in-parliament-of-coal-industry-concerning-resources-minister-says">claimed</a> some in the coal industry had lied about the quality of Australian exports. A mining industry whistleblower lay at the heart of the allegations.</p>
<p>Three weeks ago, former army lawyer David McBride <a href="https://www.sydneycriminallawyers.com.au/blog/the-mcbride-public-interest-defence-fiasco-shows-labor-is-also-out-to-get-the-whistleblower/">dropped</a> his attempted defence under the Public Interest Disclosure Act against criminal charges for releasing Defence information about war crimes in Afghanistan. Federal prosecutors claimed the information he sought to use was, itself, too secret to even be admitted in a closed court. This effectively rendered the whistleblower protection law null and void.</p>
<p>In June 2021, the former intelligence operative known as “Witness K” <a href="https://www.abc.net.au/news/2021-06-17/witness-k-pleads-guilty-to-conspiring-to-reveal-classified-info/100223306">pleaded guilty</a> to revealing alleged commercial espionage by Australia against our close neighbour Timor Leste. Again, the whistleblowing law failed to help because the categories of “intelligence information” that cannot be revealed under the act are so wide, they effectively mean nothing can be.</p>
<p>The attorney-general withdrew his consent for the prosecution of Witness K’s lawyer, Bernard Collaery. But he has come under <a href="https://whistleblowingnetwork.org/News-Events/News/News-Archive/Australia-Leading-NGOs-urge-end-to-criminal-prose">international pressure</a> to do more to end the prosecutions of McBride and <a href="https://theconversation.com/tax-office-whistleblowing-saga-points-to-reforms-needed-in-three-vital-areas-187608">Australian Taxation Office whistleblower Richard Boyle</a>. The latter is awaiting a decision on his public interest defence, after four damaging years of charges without even yet getting to a trial.</p>
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<h2>Why we need an overhaul of whistleblowing laws</h2>
<p>The government’s commitment to overhaul whistleblower protections is good news. But however worthwhile, the “priority amendments” recommended by a now out-of-date <a href="https://www.ag.gov.au/about-us/publications/review-public-interest-disclosure-act-2013">2016 review</a> involve few steps towards addressing the deeper defects in the laws.</p>
<p>Most of those 2016 recommendations were designed to make it easier for agencies to navigate their roles, more than improve the protections.</p>
<p>This is why having a forward plan for a full overhaul of federal whistleblowing laws in 2023 is so important.</p>
<p>High among the issues is the lack of effective machinery to enforce whistleblowers’ rights. This problem is shared not only by the public sector law, but by private sector protections in the Corporations Act 2001, <a href="https://www.transparency.org/en/blog/whistleblowing-reforms-in-australia-show-the-way">reformed as recently</a> as 2019.</p>
<p>A whistleblower protection authority was recommended by the <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Corporations_and_Financial_Services/WhistleblowerProtections">Parliamentary Joint Committee on Corporations and Financial Services</a> in 2017. Such an authority also formed part of the national integrity commission proposals put forward by independents Cathy McGowan and Helen Haines, and the Greens, before the 2019 and 2022 elections.</p>
<p>As well, our analysis shows that defective public sector protections have now spread into private sector laws, and even state laws in the case of NSW. Despite other innovations, our federal laws impose tough tests before aggrieved whistleblowers can claim civil compensation for any damage they suffer. They effectively require a criminal reprisal before this can happen.</p>
<p>These protections fall short of European or United States’ standards for when a whistleblower can claim for damage. They’re also increasingly inconsistent across different areas of federal regulation.</p>
<p>Under the Aged Care Act and National Disability Insurance Scheme Act, for example, whistleblowers can also only claim protection if deemed to have complained “in good faith”, irrespective of the truth of their information. They must also identify themselves when making any disclosure. They get no protection if they speak out publicly, even if their internal complaints have been entirely ignored.</p>
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Read more:
<a href="https://theconversation.com/why-whistleblowers-must-be-kept-confidential-just-look-at-what-happened-to-me-126403">Why whistleblowers must be kept confidential – just look at what happened to me</a>
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<p>Union whistleblowers operate under different rules again. And in many areas of federal regulation, unless they’re employees of a corporation, many whistleblowers get no protection at all.</p>
<p>In the US, whistleblower protections are split across more than 47 different pieces of regulatory legislation. Australia can avoid this nightmare of red tape, duplication, confusion and inconsistency.</p>
<p>All this is solvable if whistleblowing law reform is approached systematically, as a whole-of-government initiative – not in the rushed, piecemeal fashion that caused the problems in existing laws.</p>
<p>With trust in the new National Anti-Corruption Commission hinging on the ability of public and private employees to safely bring forward information, the need for comprehensive reform couldn’t be clearer.</p>
<p>We know what needs doing. The challenge now is how best to follow the larger roadmap for reform, beyond its first stages, and ensure this time we complete the whistleblower protection mission.</p><img src="https://counter.theconversation.com/content/195019/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>AJ Brown has received funding from the Australian Research Council and all Australian governments for research on public interest whistleblowing, integrity and anti-corruption reform through partners including Australia's federal and state Ombudsmen, Australian Securities & Investments Commission, and other regulatory agencies, parliaments, anti-corruption and private sector bodies (see most recently 'Whistling While They Work 2: Improving Managerial and Organisational Responses to Whistleblowing in the Public and Private Sectors' (<a href="https://whistlingwhiletheywork.edu.au/">https://whistlingwhiletheywork.edu.au/</a>). He was a member of the Commonwealth Ministerial Expert Panel on Whistleblowing (2017-2019), and is a board member of Transparency International, globally and in Australia. He was proposed to be called as an expert witness in the public interest defence proceedings brought by David McBride.</span></em></p>Recent developments in Australian whistleblowing cases have shown how critical it is to reform our laws - which are far from world standard.A J Brown, Professor of Public Policy & Law, Centre for Governance & Public Policy, Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1919982022-10-26T18:27:21Z2022-10-26T18:27:21ZAn ethical workplace culture can prevent corporate fraud by aiding whistleblowers<figure><img src="https://images.theconversation.com/files/491441/original/file-20221024-8945-q440n3.jpg?ixlib=rb-1.1.0&rect=0%2C29%2C6493%2C4290&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A new study has found that a healthy and ethical company culture plays a more important role in preventing fraud than its board of directors does.</span> <span class="attribution"><span class="source">(Shutterstock)</span></span></figcaption></figure><iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/an-ethical-workplace-culture-can-prevent-corporate-fraud-by-aiding-whistleblowers" width="100%" height="400"></iframe>
<p>Whistleblowing is a cornerstone of corporate governance. It allows employees to anonymously disclose questionable financial matters about their companies to help prevent fraud, <a href="https://www.pwc.com/ca/en/services/deals/publications/economic-crime-survey.html">which is a pressing issue in Canada</a>. It’s also incredibly effective, with <a href="https://acfepublic.s3.us-west-2.amazonaws.com/2022+Report+to+the+Nations.pdf">42 per cent of occupational fraud being reported through tips</a>.</p>
<p>But whistleblowing is not just an essential organizational tool — it’s also codified into law. In Canada, <a href="https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/57_2008">whistleblowing procedures are outlined in a national regulation</a> called National Instrument 52-110. This regulation has been in place since 2004 and applies to all companies listed on stock exchanges throughout Canada. </p>
<p>It states that the board of directors, through its audit committee, <a href="https://www.osc.ca/en/securities-law/instruments-rules-policies/5/52-110/audit-committees-ni-52-110-audit-committees">must establish a set of procedures that provide anonymity and confidentiality</a> to any employee that wants to disclose a questionable financial matter.</p>
<p>Despite this regulation, <a href="https://doi.org/10.1007/s10997-021-09602-9">recent research by us</a> suggests that boards of directors, in fact, are not the ones who establish the whistleblowing procedures. Instead, board members depend on management to implement the procedures, which requires a high level of trust between the board of directors and their management team.</p>
<h2>A new approach to fraud</h2>
<p>For our study, we interviewed members of the board of directors of some of Canada’s largest public companies, along with some auditors. We asked the board members about their involvement in whistleblowing procedures to help prevent fraud.</p>
<p>The board members we interviewed did not believe they were in a position to establish whistleblowing procedures because they were far removed from the day-to-day operations of their corporations. </p>
<p>Instead, the board members highlighted the importance of trusting their management teams to establish effective whistleblowing procedures. One board member said: </p>
<blockquote>
<p>“You can’t stop collusion if its taking place, but hopefully you can make sure that you have got the right tone at the top, that you got the right controls in place. You are going to prevent frauds as much as possible and it really comes down to a lot of the behaviours that are in the organization, the culture of the organization…the tone at the top is probably the most important.”</p>
</blockquote>
<p>But this process only works if the board can trust their management teams, meaning the organization has a healthy ethical organizational culture. Without this culture in place, whistleblowing procedures would be ineffective.</p>
<figure class="align-center ">
<img alt="A silhouette of a man typing on a computer screen" src="https://images.theconversation.com/files/491442/original/file-20221024-17346-r9fw6s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/491442/original/file-20221024-17346-r9fw6s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/491442/original/file-20221024-17346-r9fw6s.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/491442/original/file-20221024-17346-r9fw6s.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/491442/original/file-20221024-17346-r9fw6s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/491442/original/file-20221024-17346-r9fw6s.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/491442/original/file-20221024-17346-r9fw6s.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Whistleblowers, and the whistleblower procedures that protect them, are a crucial part of preventing corporate fraud.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
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<h2>Subverting past studies</h2>
<p>Our results differ from past studies, most of which claim that the quality of board members plays an important role in fraud prevention by positively influencing the outcomes of whistleblowing procedures. </p>
<p>One study found that individual characteristics, such as member independence (not being involved in the operations of the company) and financial expertise, <a href="https://doi.org/10.2308/ajpt-51769">were related to positive whistleblowing outcomes</a>. Another found that <a href="https://doi.org/10.1016/j.acclit.2018.03.003">less busy board members and smaller boards led to more positive whistleblowing outcomes</a>.</p>
<p>One reason for this difference could be our method of inquiry. In the past, most researchers relied on public documents and correlation analysis to establish relationships between the qualities held by members of boards of directors with whistleblowing activities. </p>
<p>In other words, past researchers assumed that, because the quality of the board was related to whistleblowing procedure outcomes inside a company, board members were responsible for implementing whistleblowing procedures.</p>
<figure class="align-center ">
<img alt="Shoulder-up view of a man in a suit being interviewed by someone just off-screen" src="https://images.theconversation.com/files/491443/original/file-20221024-11269-1gdnv1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/491443/original/file-20221024-11269-1gdnv1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/491443/original/file-20221024-11269-1gdnv1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/491443/original/file-20221024-11269-1gdnv1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/491443/original/file-20221024-11269-1gdnv1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/491443/original/file-20221024-11269-1gdnv1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/491443/original/file-20221024-11269-1gdnv1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Board members did not believe they were in a position to establish whistleblowing procedures because they were far removed from the day-to-day operations of their corporations.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
</figcaption>
</figure>
<h2>Building a healthy ethical culture</h2>
<p>Our study offers Canadians a different perspective of business management by challenging a long-standing type of corporate governance theory known as <a href="https://www.sciencedirect.com/topics/social-sciences/agency-theory">agency theory</a>. </p>
<p>This theory assumes that the board of directors, which represent the interests of shareholders, should not be overly trusting of management teams because <a href="https://doi.org/10.1007/s10997-008-9062-9">management normally looks out for its own interest</a>. Agency theory dictates that boards should be skeptical of management practices and, in the case of fraud prevention, establish their own whistleblowing procedures for management teams to follow. </p>
<p>Our results suggest the contrary — instead of distrusting management, corporations should promote a healthy ethical culture as a means of preventing fraud. The primary way of achieving this is with an effective code of conduct.</p>
<p>Having a code of conduct alone can dramatically reduce fraud in companies. According to the 2020 Report to the Nations by the Association of Certified Fraud Examiners, <a href="https://legacy.acfe.com/report-to-the-nations/2020/">companies that have a code of conduct lose 50 per cent less funds to fraud</a> when compared to companies that don’t have a corporate code of conduct.</p>
<p>Codes of conduct are sets of policies and procedures that every employee adheres to. It should include all employees at all levels in the company — including upper management. How upper management adheres to the company’s code of conduct is what we refer to as the “tone at the top.” This tone, in turn, dictates how healthy a company’s ethical culture is.</p><img src="https://counter.theconversation.com/content/191998/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Contrary to popular belief, boards of directors are not the ones who establish whistleblowing procedures. Instead, boards depend on their management teams to implement them.Hanen Khemakhem, Professor, Department of Accounting Sciences, Université du Québec à Montréal (UQAM)Mahbub Zaman, Professor of Accounting, University of HullNadia Smaili, Professor in Accounting (forensic accounting), Université du Québec à Montréal (UQAM)Richard Fontaine, Professor, Department of Accounting Sciences, Université du Québec à Montréal (UQAM)Licensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1898482022-09-14T14:27:34Z2022-09-14T14:27:34ZSenegal’s presidential poll is shaping up as a real contest, with voters in the driver’s seat<figure><img src="https://images.theconversation.com/files/489312/original/file-20221012-12-cymzj4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">People wait in line outside their voting station in the popular neighbourhood of Ngor in Dakar on July 31, 2022.</span> <span class="attribution"><span class="source">Photo by JOHN WESSELS/AFP via Getty Images</span></span></figcaption></figure><p>In July 2022 Senegalese voters <a href="https://www.aljazeera.com/news/2022/7/31/senegal-elects-parliament-in-test-for-ruling-partys-influence">converged</a> at polling stations to elect 165 members of parliament (MPs) to represent them in the National Assembly. </p>
<p>Despite a <a href="https://www.france24.com/en/20170730-tense-campaign-senegal-votes-legislative-election-test-president-Sall-wade">tense campaign</a> period, <a href="https://dailytimes.com.pk/975300/low-turnout-as-senegal-picks-parliament-in-test-for-presidential-vote/">low voter turnout</a> (46%), and the opposition’s calls to secure the votes in certain localities, election day remained peaceful and highly competitive. </p>
<p>From the eight major political coalitions that entered the electoral race, two emerged at the top. The stakes were high: just six months before the poll, the ruling coalition <a href="https://www.facebook.com/BennoBokYaakaar">Benno Bokk Yakkaar</a> had <a href="https://www.reuters.com/world/africa/senegals-ruling-party-loses-key-cities-local-elections-2022-01-24/">lost the major cities</a> in municipal, regional and mayoral elections. In the run-up to the elections, some commentators suggested the coalition’s performance would indicate what support there was for the incumbent, <a href="https://www.presidence.sn/en/presidency/biography">President Macky Sall</a>, and his potential attempt to run for a third term in 2024.</p>
<p>In broad terms, these legislative elections were seen to reflect the ability of the opposition and the electorate to buoy democracy and check presidential ambitions to overstay.</p>
<h2>Opposition gains ground</h2>
<p>That’s the message they seemed to send: Benno Bokk Yakkaar’s electorate dwindled again, especially in urban areas. In cities and towns the <a href="https://www.yewwi-askanwi.com/">Yewwi Askan Wi Wallu</a> coalition, made up of two opposition groupings, won by a landslide. </p>
<p>In the end, Benno Bokk Yakkaar obtained 82 MPs and Yewwi Askan Wi earned 80. </p>
<p>For the first time in Senegal’s political history, an opposition front managed to dog the presidential coalition and impose a split parliament with no absolute majority.</p>
<p>The opposition’s breakthrough can be attributed to the dramatic fall in the popularity of Sall and his coalition. The electorate had become increasingly vocal in its demands for more accountability, justice and better socio-economic conditions. </p>
<p>Another contributory factor was the alliance of two major opposition coalitions. This political strategy derailed the presidential camp.</p>
<p>The alliance also benefited from “Sonkomania”, the popular support for <a href="https://www.africa-confidential.com/profile/id/4030/Ousmane_Sonko">Ousmane Sonko</a>, aged 48. Sonko entered the political scene in 2014 when he formed his political party <a href="https://pastef.org/">Senegalese Patriots for Work and Ethics</a>. He remains popular despite a <a href="https://www.dw.com/en/why-senegal-protesters-back-ousmane-sonko-despite-rape-charges/a-56825890">rape allegation</a> case against him still pending in court, which he claims is politically motivated. </p>
<p>Sonko himself wasn’t able to run in the legislative election contest: the list of primary candidates to which he belonged was disqualified due to the presence of another contender’s name on both the primary and alternate roster of candidates. Nevertheless, he remained (along with <a href="https://www.africa-confidential.com/profile/id/4856/Barth%26eacute%3Bl%26eacute%3Bmy_Dias">Barthelemy Dias</a>, the mayor of Dakar) the flagbearer of Yewwi Askan Wi. Voter support for this coalition was widely interpreted as being mobilised by Sonko’s popularity and the critique he has rallied against establishment incumbents.</p>
<p>Sonko’s image as an incorruptible former civil servant and an anti-system politician drew more voters to Yewwi Askan Wi. He promised to hold the executive accountable for financial scandals through parliamentary actions. He also had a strong presence online and on the ground to mobilise supporters. The Yewwi Askan Wi-Wallu coalition built its electoral campaign around his image. </p>
<p>All eyes are now on the 2024 presidential elections. The ruling coalition’s major setback casts new light on what could happen. The contest is shaping up to give the Senegalese a significant and competitive election, leaving voters in the driver’s seat. </p>
<h2>Who is Ousmane Sonko?</h2>
<p>After earning a master’s degree in public law in 1999 at Université Gaston Berger, Sonko joined the prestigious National School of Administration. </p>
<p>As a tax inspector, he occupied a high-ranking position in the Senegalese civil service <a href="https://www.bbc.com/news/world-africa-56323444">before being fired in 2016</a> for exposing and denouncing unethical practices in the national administration.</p>
<p>In 2017, he was elected to the National Assembly. He increasingly became the leading voice of the opposition. In March 2021, <a href="https://www.france24.com/en/africa/20210303-senegal-opposition-leader-sonko-arrested-on-way-to-dakar-court-to-face-rape-charge">he was arrested</a> on disorderly conduct charges on his way to the court in Dakar to begin the legal proceedings on the rape charges. His adherents <a href="https://www.bbc.com/afrique/region-37225666">followed his motorcade</a> to court, protesting as a brigade of opposition. The situation escalated as the police attempted to disperse them. Subsequently, Sonko was arrested for public order disturbance and participating in an unauthorised demonstration. </p>
<p>This sparked an unprecedented uprising, with protests shutting down the major cities. Violence destroyed public infrastructure and French businesses were looted. Fourteen people died and more than 600 were seriously injured. For many, the arrest of a leading opposition figure over political protests by his supporters <a href="https://foreignpolicy.com/2021/03/12/senegal-protest-ousmane-sonko-macky-sall/">was viewed as an attack on democracy</a>.</p>
<p>These events solidified Sonko’s popular support and consolidated his stature as a serious contender for the presidency, and opposition leader.</p>
<p>Given <a href="https://www.africanews.com/2021/09/03/senegal-opposition-coalition-led-by-ousmane-sonko-launched-for-local-elections//">his third-place standing in the 2019 election</a> and the growth of his political base, he can certainly force a runoff election in 2024. His eligibility to run, however, will be determined by the outcome of the rape charge he faces.</p>
<h2>Chances for 2024</h2>
<p>Much of the uncertainty about 2024 hinges on whether Macky Sall decides to seek a third term. He has so far refused to answer that question, which has cost him in terms of popularity. </p>
<p>For the Senegalese electorate, the long presidencies of <a href="https://www.britannica.com/biography/Leopold-Senghor">Léopold Senghor</a> (20 years) and <a href="https://www.britannica.com/biography/Abdou-Diouf">Abdou Diouf</a> (19 years) are a bygone era. </p>
<p>The country has embraced the idea of two-term presidencies, and the incumbent’s honeymoon won’t last more than a decade, as Sall’s predecessor <a href="https://newafricanmagazine.com/3127/">Abdoulaye Wade </a> found out.</p>
<p>Still, should Sall decide to seek a third term, he would have to clear a number of hurdles.</p>
<p>The first one is the Constitutional Court, which would rule on the legality of his candidacy. </p>
<p>Then he would face a number of opposition figures: Sonko, of course, but also potentially <a href="https://www.bbc.co.uk/news/world-africa-16352470">Barthelemy Dias</a>, and possibly <a href="https://www.bbc.co.uk/news/world-africa-49873340">Khalifa Sall</a> (a former mayor of Dakar) and <a href="https://www.africa-confidential.com/profile/id/254/Karim_Wade">Karim Wade</a>. </p>
<p>None of the candidates is likely to earn a majority of the votes (50% plus one) in the first round. But, as Sall well knows, in 2000 and 2012 the incumbent lost the presidential elections when forced to a second round.</p>
<p>Should Sall not seek another term, his party is still in dire straits as it has not cultivated a national figure that would take over the party’s leadership. And it might be too late for such a figure to emerge.</p>
<p>Sonko is well positioned for the 2024 elections – especially if he manages to make inroads with the electorate in rural areas. That would build on his solid popularity with urban voters. </p>
<h2>Implications for Senegalese democracy</h2>
<p>For some, Sonko’s candidacy represents a new course for representation, accountability and quality of governance in Senegal. </p>
<p>By not aligning with the incumbent coalition, he offers an anti-establishment view and a contrast to veteran rivals. </p>
<p>His reputation as a whistleblower continues to drive electoral support, along with his attention to issues of debt, exploitation of natural resources, poverty, underfunded health and education systems and corruption.</p><img src="https://counter.theconversation.com/content/189848/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The 2024 presidential election is shaping up to give Senegalese a significant and competitive election, leaving voters in the driver’s seat.Rachel Beatty Riedl, Professor of International Studies , Cornell UniversityBamba Ndiaye, Assistant Professor, Emory UniversityOumar Ba, Assistant Professor of International Relations, Cornell UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1884932022-08-24T17:27:44Z2022-08-24T17:27:44ZA former whistleblower explains the dangers of Canada’s feeble whistleblowing laws<figure><img src="https://images.theconversation.com/files/480654/original/file-20220823-22-fwhyzh.jpg?ixlib=rb-1.1.0&rect=15%2C39%2C5262%2C3458&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Canadian laws protecting whistleblowers are generally pushed through in the aftermath of a crisis, but rarely turn out to be effective. </span> <span class="attribution"><span class="source">(Shutterstock)</span></span></figcaption></figure><iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/a-former-whistleblower-explains-the-dangers-of-canada-s-feeble-whistleblowing-laws" width="100%" height="400"></iframe>
<p>Canada has had whistleblowing laws since 2007, when the federal government’s <a href="https://laws-lois.justice.gc.ca/eng/acts/p-31.9/">Public Servants Disclosure Protection Act</a> (PSDPA) came into force. All provinces have followed suit, most adopting modified versions of the PSDPA. </p>
<p>But there is no evidence that any of these laws work. A recent study by the International Bar Association’s legal policy and research unit ranked the PSDPA as <a href="https://www.ibanet.org/MediaHandler?id=49c9b08d-4328-4797-a2f7-1e0a71d0da55">one of the worst in the world</a>. The private sector has no law at all. </p>
<p>As a former Canadian Forces naval officer and government manager who <a href="https://www.cbc.ca/news/canada/marine-security-riddled-with-gaps-whistleblower-1.749273">blew the whistle at Transport Canada in 2006</a> about marine safety regulations, I know this puts the public at risk. </p>
<p>These feeble laws may also lead to more undetected wrongdoing and harmful policies — including <a href="https://www.cbc.ca/news/canada/british-columbia/ei-whistleblower-suspended-without-pay-1.1407761">employment insurance rejection quotas</a>, <a href="https://www.nationalmagazine.ca/en-ca/articles/law/ethics/2013/the-whistleblower">laws that are flagrantly unconstitutional</a> and the dismantling of Canada’s universal health-care system.</p>
<p>The last is the most immediate threat. </p>
<h2>The devastating impacts of COVID-19</h2>
<p>COVID-19 wreaked havoc on Canada’s provincial health-care systems, with <a href="https://www.cbc.ca/news/canada/ottawa/canada-record-covid-19-deaths-wealthy-countries-cihi-1.5968749">particularly egregious failures in long-term care</a>. After military medical personnel were called to intervene in Ontario and Québec, a <a href="https://www.cbc.ca/news/canada/toronto/covid-19-coronavirus-ontario-update-may-26-1.5584665">whistleblower leaked an internal report</a> describing a nightmare of neglect. A <a href="https://www.theglobeandmail.com/canada/article-doctor-let-go-over-criticizing-ford-government/">doctor who also spoke up</a> about the Ontario government’s vacillating response faced a swift reprisal. </p>
<figure class="align-center ">
<img alt="White crosses in a grassy patch, with a Canadian flag fastened to one." src="https://images.theconversation.com/files/480656/original/file-20220823-25-2m6s79.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/480656/original/file-20220823-25-2m6s79.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=408&fit=crop&dpr=1 600w, https://images.theconversation.com/files/480656/original/file-20220823-25-2m6s79.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=408&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/480656/original/file-20220823-25-2m6s79.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=408&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/480656/original/file-20220823-25-2m6s79.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=513&fit=crop&dpr=1 754w, https://images.theconversation.com/files/480656/original/file-20220823-25-2m6s79.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=513&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/480656/original/file-20220823-25-2m6s79.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=513&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Crosses are displayed in memory of the elderly who died from COVID-19 at a long-term care facility in Mississauga, Ont., in November 2020.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Nathan Denette</span></span>
</figcaption>
</figure>
<p>Now emergency rooms are being closed <a href="https://ottawa.citynews.ca/local-news/ontario-healthcare-system-on-life-support-why-are-er-wait-times-so-long-5647079">as Ontario’s health-care system stumbles toward collapse</a>. Unfortunately, health-care workers trying to draw attention to these problems have only flimsy protections in provincial health statutes (for example, provisions in Ontario’s <a href="https://www.canlii.org/en/on/laws/stat/so-1991-c-18/latest/so-1991-c-18.html">Regulated Health Professions Act</a>).</p>
<p>Government employees are no better off. This is partly due to poorly written whistleblower protection laws — a point that was made at the federal level <a href="https://cfe.ryerson.ca/sites/default/files/whats_wrong_with_the_psdpa.pdf">in 2012</a>, <a href="https://www.cbc.ca/news/politics/whistleblower-trump-canada-laws-1.5360774">2019</a> <a href="https://www.ibanet.org/MediaHandler?id=49c9b08d-4328-4797-a2f7-1e0a71d0da55">and 2021</a>. A 2017 parliamentary committee’s <a href="https://www.ourcommons.ca/Content/Committee/421/OGGO/Reports/RP9055222/oggorp09/oggorp09-e.pdf">unanimous report</a> called for sweeping changes, but none have been implemented. </p>
<p>Provincial laws are also currently under assessment by the <a href="https://cfe.ryerson.ca/news/cfe-releases-new-guide-whistleblower-protection-legislation-and-policies">Centre for Free Expression</a>, and not surprisingly, the findings are discouraging: They are even less effective than the PSDPA.</p>
<h2>Post-crisis damage control</h2>
<p>The problem may not just be in the drafting of these laws. <a href="https://doi.org/10.1111/capa.12324">My own research into dozens of jurisdictions</a> suggests that governments adopt whistleblowing laws largely as a symbolic measure to bolster legitimacy — usually after a crisis. Politicians push the legislation, but once the crisis has passed they turn to other priorities. This puts bureaucrats, who typically resist whistleblowing legislation, back in the driver’s seat.</p>
<p>Perhaps unsurprisingly, many problems are rooted in culture. By convention, Canadian public servants should be selected on merit, must be neutral and are expected to loyally implement the policies of the government of the day. They should also be able to speak frankly and give honest advice with the assurance they will not suffer reprisals. Political and administrative work should be separate. </p>
<p>Perhaps even more than other <a href="https://www.ourcommons.ca/procedure/our-procedure/ParliamentaryFramework/c_g_parliamentaryframework-e.html">Westminster governments</a> — democratic parliamentary systems of government modelled after the United Kingdom’s — Canadian governments are deeply hierarchical. This has an impact on the convention on advice: Few bosses like to be told they’ve let wrongdoing happen on their watch.</p>
<p>In recent decades, there have been <a href="https://doi.org/10.1111/j.1468-0491.1990.tb00111.x">reforms guided by neoliberal ideas</a> that cast governments as ineffective and inefficient and <a href="https://www.jstor.org/stable/1831817">their public servants as self-interested empire-builders</a>. </p>
<figure class="align-right ">
<img alt="Three men follow a woman in a white suit jacket out of a building. All are smiling." src="https://images.theconversation.com/files/480658/original/file-20220823-8395-wgof5v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/480658/original/file-20220823-8395-wgof5v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=855&fit=crop&dpr=1 600w, https://images.theconversation.com/files/480658/original/file-20220823-8395-wgof5v.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=855&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/480658/original/file-20220823-8395-wgof5v.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=855&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/480658/original/file-20220823-8395-wgof5v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1075&fit=crop&dpr=1 754w, https://images.theconversation.com/files/480658/original/file-20220823-8395-wgof5v.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1075&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/480658/original/file-20220823-8395-wgof5v.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1075&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Leaders (from left) Ronald Reagan, Brian Mulroney and Helmut Kohl follow Margaret Thatcher into a courtyard at Hart House in Toronto during an economic summit in June 1988.</span>
<span class="attribution"><span class="source">(CP PHOTO/Fred Chartrand)</span></span>
</figcaption>
</figure>
<p>Former leaders Ronald Reagan of the United States and Britain’s Margaret Thatcher may be the most famous proponents, but Canada and other English-speaking countries, to different degrees, followed this path as well. The promise was that costs would be cut and the public better served when politicians were put in charge. This ignored the fact that misconduct was frequently the result of political direction.</p>
<p>The result has been governments in which <a href="https://www.ippapublicpolicy.org/file/paper/5d0b57425a033.pdf">increasing numbers of unelected political staff</a> routinely intrude into administration. Additionally, politicians control incentives such as <a href="https://doi.org/10.1787/136274825752">promotions to top posts</a> and <a href="https://read.oecd-ilibrary.org/governance/performance-related-pay-policies-for-government-employees_9789264007550-en#page1">performance pay</a>. </p>
<h2>Swept under the carpet</h2>
<p>This facilitates rewarding officials who project an image of error-free administration and who obey without question. Since not making mistakes is almost impossible and blind obedience is dangerous, this effectively incentivizes living in a fantasy world where misconduct is promptly swept under the carpet.</p>
<p>Persistent dissenters quickly <a href="https://canadiandimension.com/articles/view/canadas-shameful-legacy-of-torture-in-afghanistan">become viewed as the problem</a> — not the wrongdoing.</p>
<p>Furthermore, Canadian governments remain stubbornly resistant to suggestions for improvements to their regimes, instead <a href="https://read.oecd-ilibrary.org/governance/committing-to-effective-whistleblower-protection_9789264252639-en#page151">claiming that all is well</a>. The basis of these claims is questionable, as data on the performance of these regimes <a href="https://www.psic-ispc.gc.ca/en/resources/corporate-publications/2021-22/annual-report#section05">is superficial</a>. </p>
<p>Many disclosures to the federal Office of the Public Service Integrity Commissioner were <a href="https://www.psic-ispc.gc.ca/en/resources/corporate-publications/deloitte-report-file-review">dismissed because of flawed processes</a> under the <a href="https://www.thestar.com/news/canada/2011/03/04/integrity_commissioner_christiane_ouimet_got_500k_payout.html">disgraced first commissioner</a>, and the courts ordered cases reopened <a href="https://www.canlii.org/en/ca/fct/doc/2012/2012fc1111/2012fc1111.html">in 2012</a>, <a href="https://www.canlii.org/en/ca/fca/doc/2015/2015fca29/2015fca29.html">2015</a> <a href="https://www.canlii.org/en/ca/fct/doc/2017/2017fc338/2017fc338.html">and 2017</a>.</p>
<p>Damningly, <a href="https://www.psdpt-tpfd.gc.ca/Cases/AllCases-en.html">no whistleblower has succeeded at the federal tribunal</a> that hears their complaints of reprisal. Matters are even worse at provincial levels.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/480663/original/file-20220823-2358-hzpkyw.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman in a hat and mitten carries an orange sign that reads Fix Phoenix Now." src="https://images.theconversation.com/files/480663/original/file-20220823-2358-hzpkyw.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/480663/original/file-20220823-2358-hzpkyw.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=421&fit=crop&dpr=1 600w, https://images.theconversation.com/files/480663/original/file-20220823-2358-hzpkyw.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=421&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/480663/original/file-20220823-2358-hzpkyw.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=421&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/480663/original/file-20220823-2358-hzpkyw.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=529&fit=crop&dpr=1 754w, https://images.theconversation.com/files/480663/original/file-20220823-2358-hzpkyw.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=529&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/480663/original/file-20220823-2358-hzpkyw.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=529&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Members of the Public Service Alliance of Canada affected by the Phoenix Pay System rally in Ottawa on the three-year anniversary of the launch of the botched pay system in February 2019.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Justin Tang</span></span>
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<p>The effect on whistleblowers has been that they remain untrusted and underused, with wrongdoing unreported. For example, in the federal government’s <a href="https://torontosun.com/news/national/costs-for-phoenix-pay-system-failure-approaching-3-billion">multi-billion dollar Phoenix pay system debacle</a>, a <a href="https://www.canada.ca/en/treasury-board-secretariat/corporate/reports/lessons-learned-transformation-pay-administration-initiative.html">review found employees were too frightened to speak up</a>. </p>
<p>This must be fixed if we want to avoid future disasters.</p>
<p>Improving the laws would be a start, but must be accompanied by renewed initiatives in training, awareness and, more fundamentally, a change of culture at top levels. As the COVID-19 pandemic has shown, our lives may depend on it.</p><img src="https://counter.theconversation.com/content/188493/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ian Bron currently serves as a volunteer senior fellow at the Centre for Free Expression Whistleblowing Initiative and on the advisory board of Whistleblowing Canada Research Society. His doctoral dissertation "Square Peg in a Round Hole? Three Case Studies into Institutional Factors Affecting Public Service Whistleblowing Regimes in the United Kingdom, Canada, and Australia" was successfully defended at Carleton University on August 19, 2022. Some funding for field research was provided by the Performance and Planning Exchange.</span></em></p>Canada’s whistleblowing laws aren’t working, and governments don’t seem to care. This puts all of us at risk.Ian Bron, Adjunct Professor, Law and Ethics, Carleton UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1876082022-08-08T20:03:12Z2022-08-08T20:03:12ZTax office whistleblowing saga points to reforms needed in three vital areas<p>Last Friday’s twist in the long prosecution of <a href="https://www.theguardian.com/law/2022/aug/05/prosecutors-seek-suppression-orders-in-case-against-tax-office-whistleblower-richard-boyle">Australian Taxation Office whistleblower Richard Boyle</a> – now headed for its fifth year – brings into relief the serious flaws in our nation’s whistleblowing laws.</p>
<p>Boyle aired his concerns about oppressive debt collection by the ATO in a <a href="https://www.abc.net.au/4corners/mongrel-bunch-of-bastards/9635026">joint ABC–Fairfax media investigation</a> released in 2018. But he went public only after raising his concerns within the ATO and later with the inspector-general of taxation (IGT).</p>
<p>Various reviews confirmed his complaints under the Public Interest Disclosure Act 2013 – the whistleblower protection law for federal public servants – were reasonable. Despite dismissing his original complaint, the ATO ensured the suspect practices, which it <a href="https://www.smh.com.au/politics/federal/ato-garnishees-a-misunderstanding-inquiry-hears-20191018-p5320j.html">claimed</a> resulted from “miscommunication” and “misunderstanding”, were fixed.</p>
<p>A <a href="https://www.theguardian.com/australia-news/2020/jun/19/whistleblower-went-public-after-tax-offices-superficial-inquiry-into-concerns">Senate committee</a> labelled the ATO’s initial investigation into Boyle’s complaint as “superficial”. The IGT found merit in the matters Boyle raised but had <a href="https://www.smh.com.au/politics/federal/ato-garnishees-a-misunderstanding-inquiry-hears-20191018-p5320j.html">no jurisdiction to intervene</a> because it is not a “disclosure recipient” under the 2013 Act.</p>
<p>These events make the Boyle prosecution an important test case. Under the act, the key test of whether he has a defence against charges of making unauthorised recordings and disclosures is whether he believed “on reasonable grounds” the ATO investigation into his first disclosure was “inadequate”.</p>
<p>In Friday’s Kafkaesque twist, the ATO and Commonwealth prosecutors have <a href="https://www.theguardian.com/law/2022/aug/05/prosecutors-seek-suppression-orders-in-case-against-tax-office-whistleblower-richard-boyle">sought suppression orders</a> to prevent media reporting of Boyle’s efforts to assert that defence, in case it prejudices the trial. (Delays have already pushed the trial itself back to October 2023.) It’s the ultimate illustration of how current public interest disclosure laws can end up undermining their own primary purpose.</p>
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Read more:
<a href="https://theconversation.com/dreyfus-ends-prosecution-of-lawyer-over-alleged-leaking-about-australian-spying-in-against-timor-leste-186555">Dreyfus ends prosecution of lawyer over alleged leaking about Australian spying in against Timor-Leste</a>
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<p>Add the time, costs and negative impacts on <a href="https://www.afr.com/politics/federal/ato-whistleblower-richard-boyle-s-court-case-a-shakespearean-tragedy-20220723-p5b3zv">Boyle’s life and health</a>, the resources invested by the ATO and Commonwealth Director of Public Prosecutions, the case’s impact on the Australian government’s reputation and the messages it sends to other potential whistleblowers, and we see just how badly the federal approach to whistleblowing needs an overhaul.</p>
<p>The law needs urgent reform to ensure that:</p>
<ul>
<li><p>whistleblower protection thresholds are more workable and consistent </p></li>
<li><p>when they apply, the protections themselves are worthwhile</p></li>
<li><p>new institutions are created to enforce the laws — especially a whistleblower protection commissioner to short-circuit the legal quagmire and make sure the public interest is efficiently served.</p></li>
</ul>
<h2>Crossing the threshold</h2>
<p>The right thresholds are important because it is easy and normal for organisations to <em>not</em> see employees’ actions as covered by whistleblower protections, simply because other disputes and processes are also in train. The whistleblowing complaint might also include an employment dispute, for example, or a policy disagreement. Or other public interest factors – like national security – might need to be weighed up.</p>
<p>In fact, <a href="http://www.whistlingwhiletheywork.edu.au/wp-content/uploads/2019/08/Clean-as-a-whistle_A-five-step-guide-to-better-whistleblowing-policy_Key-findings-and-actions-WWTW2-August-2019.pdf">our research</a> shows this complexity is the norm. Our study of more than 17,000 employees across 46 large and small public and private sector organisations found that up to half (47%) of all disclosures involve a mixture of public interest issues and personal grievances. Only 20% were solely “public interest”.</p>
<p>The law needs to be clearer that the other 30%, purely personal grievances, belong in other processes. But clear and properly implemented thresholds are the key to whether most whistleblowers will get any protection at all.</p>
<p>Recently, Labor Attorney-General Mark Dreyfus intervened to stop the <a href="https://www.abc.net.au/news/2022-07-07/attorney-general-orders-charges-dropped-against-bernard-collaery/101217272">prosecution of Canberra lawyer Bernard Collaery</a> for disclosing confidential information about the Australian government’s alleged commercial bugging of the Timor-Leste cabinet room.</p>
<p>But the actual whistleblower in that case – Witness K, the spy who took his internal complaints about the bugging to Collaery – missed out, because he, too, didn’t fit the thresholds. He had already been <a href="https://theconversation.com/from-richard-boyle-and-witness-k-to-media-raids-its-time-whistleblowers-had-better-protection-121555">forced to plead guilty</a> for revealing the wrongdoing because, no matter how heinous the crime, the mere fact it involved national intelligence left him with no chance of a defence at all.</p>
<h2>Ensuring effective protections</h2>
<p>Even if the thresholds are met, what value are current protections?</p>
<p>Prime ministers Malcolm Turnbull and Scott Morrison started to lift the bar in the private sector in 2019, <a href="https://www.transparency.org/en/blog/whistleblowing-reforms-in-australia-show-the-way">amending the Corporations Act</a> to surpass the 2013 public sector whistleblowing laws in key ways.</p>
<p>But even if the public sector laws catch up, problems remain. A whistleblower can only receive compensation for the personal and professional impacts of their disclosures if those impacts were, in effect, punishment or payback motivated by awareness of a disclosure.</p>
<p>While okay for a criminal offence, that principle means any whistleblower will struggle to secure compensation if the damage flowed from simple negligence, collateral employment actions or breakdowns in organisational support. No whistleblower has yet succeeded in winning such compensation.</p>
<p>And some whistleblowers deserve justice even if the detriment was beyond anyone’s control. In 2017, the <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Corporations_and_Financial_Services/WhistleblowerProtections">Parliamentary Joint Committee on Corporations and Financial Services</a> recommended Australia should establish a reward scheme that would share with the whistleblower some of the penalties imposed on wrongdoers or the money saved thanks to a disclosure, irrespective of fault. The United States and Canada are just two countries with such schemes.</p>
<h2>Creating the right institutions</h2>
<p>But who would administer such a scheme, or even take on the existing job of ensuring that legal protections for whistleblowers deliver justice, consistently across the public and private sectors? Does anyone have the job of investigating whether a whistleblower was properly treated, or of actively helping federal agencies sort out these often messy cases?</p>
<p>The short answer is no. The Commonwealth ombudsman and the Australian Securities and Investment Commission can require organisations to set up internal disclosure systems, but have little scope, in law or practice, to enforce protections.</p>
<p>The 2017 <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Corporations_and_Financial_Services/WhistleblowerProtections">parliamentary joint committee</a> recommended a whistleblower protection authority or commissioner to fill this stark gap. Since 2018, federal crossbench MPs including <a href="https://cathymcgowan.com.au/wp-content/uploads/2020/10/National-Integrity-Commission-Bill-2018.pdf">Cathy McGowan</a>, <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6787">Helen Haines</a>, <a href="https://www.theguardian.com/australia-news/2022/jul/10/greens-to-seek-changes-to-labors-integrity-commission-legislation-to-protect-whistleblowers">Adam Bandt</a> and <a href="https://www.smh.com.au/politics/federal/our-democracy-will-be-better-for-it-empowering-whistleblowers-key-to-effective-anti-corruption-reform-20220718-p5b2c2.html">Andrew Wilkie</a> have proposed this function be included in the Albanese government’s planned <a href="https://www.theguardian.com/australia-news/2022/jul/06/labor-urged-to-bolster-federal-icac-plan-with-more-protection-for-whistleblowers">National Anti-Corruption Commission</a> reforms.</p>
<p>This makes sense because the new agency will become the most obvious place in Australia for people to safely take complaints about serious wrongdoing and be listened to, or referred to the right place, with the necessary protections applying.</p>
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Read more:
<a href="https://theconversation.com/after-a-border-dispute-and-spying-scandal-can-australia-and-timor-leste-be-good-neighbours-121553">After a border dispute and spying scandal, can Australia and Timor-Leste be good neighbours?</a>
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<p>The need for an agency to coordinate a one-stop-shop process rather than a bureaucratic “pass the parcel” has been identified by no less than four statutory or parliamentary inquiries. These include the 2016 <a href="https://www.ag.gov.au/about-us/publications/review-public-interest-disclosure-act-2013">Moss Review</a> and 2017 <a href="https://www.aph.gov.au/select_integritycommission">Senate Select Committee on a National Integrity Commission</a>, but stretches right back to a 1994 <a href="http://navigatesenatecommittees.senate.gov.au/events/select-committee-on-public-interest-whistleblowing/23">Select Committee on Whistleblowing</a> chaired by Tasmanian Liberal Senator Jocelyn Newman.</p>
<p>Just as the <a href="https://www.theguardian.com/australia-news/2021/nov/11/government-reveals-plan-to-reform-australias-whistleblowing-laws">outgoing Coalition government</a> was proposing further changes to whistleblowing laws, it is welcome news that <a href="https://www.canberratimes.com.au/story/7811624/attorney-weighs-up-whistleblower-laws/">Dreyfus</a> is keeping at least some of that reform on the agenda.</p>
<p>For Australia to retain its record of pursuing world’s best practice in recognising, managing and protecting the role of whistleblowers, it will be vital for that agenda to include all three major elements of overdue reform.</p><img src="https://counter.theconversation.com/content/187608/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>A J Brown has received funding from the Australian Research Council and all Australian governments for research on public interest whistleblowing, integrity and anti-corruption reform through partners including Australia's federal and state Ombudsmen, Australian Securities & Investments Commission, and other Commonwealth and State regulatory agencies, parliaments, anti-corruption bodies and private sector peak bodies (see most recently 'Whistling While They Work 2: Improving Managerial and Organisational Responses to Whistleblowing in the Public and Private Sectors' (<a href="https://whistlingwhiletheywork.edu.au/">https://whistlingwhiletheywork.edu.au/</a>). He was a member of the Commonwealth Ministerial Expert Panel on Whistleblowing (2017-2019) and is also a board member of Transparency International, globally and in Australia.</span></em></p>Labor is committed to changing the law for the better. Here’s what needs doingA J Brown, Professor of Public Policy & Law, Centre for Governance & Public Policy, Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1855512022-06-28T15:05:27Z2022-06-28T15:05:27ZThe art of bribery: a closeup look at how traffic officers operate on Kenya’s roads<figure><img src="https://images.theconversation.com/files/470320/original/file-20220622-17-w9xvh5.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">General Service Unit officers, part of Kenya's police service, stop a commercial vehicle at a checkpoint.</span> <span class="attribution"><span class="source">Tony Karumba//AFP via Getty Images</span></span></figcaption></figure><p>A first-time driver on Kenyan roads is likely to think that commercial and passenger service vehicles are highly regulated. Drivers are frequently stopped by police officers, who are ubiquitous along Kenya’s highways. </p>
<p>Is this evidence that the police are keeping road users safe? </p>
<p>Not necessarily. As <a href="https://www.researchgate.net/publication/358547663_The_art_of_bribery_Analysis_of_police_corruption_at_traffic_checkpoints_and_roadblocks_in_Kenya">my research</a> on police corruption at traffic checkpoints and roadblocks in Kenya shows, other factors are at play. One of them is securing bribes.</p>
<p>A number of reports on <a href="https://www.researchgate.net/publication/321952837_Police_corruption_and_the_security_challenge_in_Kenya">police corruption</a> in Kenya have been drawn up. However, first-hand data on corrupt transactions at police checkpoints and roadblocks are not easy to come by. </p>
<p>I examined the techniques, rationales and legal gaps that allow for corrupt practices and policing misconduct on Kenyan roads. </p>
<p>My research describes how corruption’s logic, practices and coded languages are developed, how actors are recruited and regulated, the inventing and concealing of evidence, establishment of players or networks, and the forming of norms and normalising of corrupt practices.</p>
<p>I call this process the art of bribery.</p>
<p>My findings into how government institutions work can provide insights into implementing policies that address corruption. </p>
<h2>Partners in crime</h2>
<p>In Kenya’s traffic stops, bribery is a means to cope and fit within the elaborate network in the police hierarchy. It is an outcome of indoctrination by older timers. There are set rules of the game, some of which are not clearly defined or are loosely regulated. </p>
<p>Motorists pay bribes to circumvent traffic regulations, while the police maximise illicit incomes for personal and institutional gains. Dissidence is rare and may come at a great cost, especially within the police service. But even if dissent occurs in the form of whistleblowing, no significant punishment is meted out on the culprits.</p>
<p>Even though this state of affairs paints a grim image of the police, motorists are equal partners in this corruption racket, especially when they fail to comply with traffic regulations on issues like vehicle loads or speed limits.</p>
<p>Kenya’s unstructured public transport sector and confusing traffic regulations exacerbate bribery at checkpoints, creating a corruption complex that draws in the police and motorists. </p>
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Read more:
<a href="https://theconversation.com/boda-bodas-are-critical-to-kenyas-transport-system-but-theyve-gone-rogue-179234">Boda bodas are critical to Kenya's transport system. But they've gone rogue</a>
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<p>My research was based on an ethnographic study involving police officers and operatives of passenger service vehicles (called matatus) on selected busy routes: Nairobi-Nakuru, Nakuru-Kisumu and Kisumu-Migori. A documentary analysis of secondary data, like <a href="https://www.afrobarometer.org/countries/kenya/">Afrobarometer</a> survey findings and statutory and media reports, complemented the primary data. </p>
<p>When asked how bribes are distributed or divided among the police, one police respondent stated: <em>“Hiyo inaenda mbali na hukuliwa na watu wengi, hata wakubwa.”</em> Translated, this means that collected bribes move along the hierarchy to high-ranking beneficiaries at police headquarters. </p>
<p>This suggests that police corruption in Kenya flows within personal and corporate networks that uniquely bring together lower cadre and major players in the police service. These networks are loosely latched onto a well-established and institutionalised culture of corruption. </p>
<p>In interviews, one officer painted a hopeless picture regarding the application of oversight mechanisms in Kenya’s capital, Nairobi, when he mentioned that they sometimes ‘eat’ (share bribes) with some <a href="https://eacc.go.ke/default/">Ethics and Anti-Corruption Commission</a> officials. </p>
<p>Additionally, seasoned players indoctrinate newcomers. As in most conventional corruption situations, unequal power relations and coercion are the primary drivers. </p>
<p>There are also police officers, mainly base commanders, on retainer payments. Here, owners of vehicle fleets pay bribes in exchange for ‘protection’ or to maintain good relations. The bribery network also involves court officials and magistrates. This turns court corridors into corruption negotiation spaces. </p>
<h2>The rules of the game</h2>
<p>The rules are clear: don’t involve oversight institutions or lawyers when dealing with the police. Police officers are averse to matatu owners and operatives who think they’re connected and know the law. </p>
<p>The same applies to acts of dissent within the service. The police officers I interviewed mentioned professional witchhunts and victimisation as outcomes of whistleblowing. </p>
<p>For motorists, the legal landscape is too time-consuming and costly to effect their agency against police corruption. Matatu owners reported that their vehicles were targeted or their drivers frustrated after a court process, resulting in a difficult, if not impossible, environment to run a business. </p>
<p>Police recruits are advised or socialised on ‘how things are done here’. In this way, institutional structures and culture reinforce corrupt practices. </p>
<p>When a motorist stopped at a roadblock, a lot could happen. The police officer may decide to impound the vehicle and confine it to a station. This is a route many motorists detest because it shifts the grounds of negotiation in favour of the police. </p>
<p>This is because, first, the police are in custody of the vehicle. Second, it involves a bigger fish, such as a base commander, and the issue could end up in court. Third, one’s offences may change or take a different dimension by the time the case gets to court. </p>
<p>Considering the punitive nature of Kenya’s traffic legislation, many motorists make the choice to bribe at the roadblock. </p>
<p>Essentially, bribery incomes have become a source of livelihood for many police officers. As one police respondent in my research stated: </p>
<blockquote>
<p>Ukiangalia vile tunaishi (If you consider how we live), we live in shacks around here. There is no water sometimes and the rooms are suffocating … to make it worse, the salary is not adequate given the Kenya of today. What do you expect me to do? </p>
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<h2>The way forward</h2>
<p>My research found that corrupt exchanges are regulated by the taken-for-granted rules of the game. These legitimise police misconduct, curtail detection and define the scales of bribery. </p>
<p>Likewise, there are socialisation and rationalisation processes among motorists and police officers that lead to non-responsiveness in reporting police misconduct. Furthermore, stricter traffic laws and costly penalties could perpetuate rather than reduce police corruption. </p>
<p>Tackling police corruption, therefore, lies in addressing the broader deficits that hamper the rule of law in Kenya. Corruption is a function of a lack of adequate legislation, and poor quality of police service personnel and public leadership. </p>
<p>The professionalisation of the police should begin by recruiting and attracting highly qualified and educated individuals. This will change the <a href="https://www.pulselive.co.ke/news/local/police-respond-to-senator-malala-after-claiming-the-nps-comprises-school-dropouts/xhnye5p">current narrative</a> that portrays the police service as a den of academic underperformers only known for <a href="https://www.researchgate.net/publication/270706657_The_Achilles'_Heel_of_Police_Reforms_in_Kenya">dispensing brute force</a> on the citizenry as in colonial days. </p>
<p>Raising the academic competency of the service will steer it toward becoming an intelligent organisation and transform its image. It will also be able to address current political neglect in the forms of under-remuneration and poor living conditions for police officers. </p>
<p>Finally, professionalising the force will create an enabling environment for the <a href="https://theconversation.com/kenya-has-tried-to-reform-its-police-force-but-its-left-gaps-for-abuse-176044">ongoing police reforms</a>, which seek to improve the institution’s effectiveness. </p>
<p>The government must ensure intensive training of the police on the rule of law and citizen rights, conduct public awareness campaigns, and create a less costly and burdensome justice system. This calls for effective collaboration and coordination among state agencies, including oversight agencies and the judiciary.</p><img src="https://counter.theconversation.com/content/185551/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gedion Onyango does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Police checkpoints liberally dot Kenya’s highways, but they’re not just about keeping road users safe.Gedion Onyango, Senior Lecturer, University of NairobiLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1824052022-05-26T17:28:01Z2022-05-26T17:28:01ZA unified cybersecurity strategy is the key to protecting businesses<figure><img src="https://images.theconversation.com/files/463775/original/file-20220517-12-jaiiza.jpg?ixlib=rb-1.1.0&rect=8%2C0%2C2986%2C1949&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Organizations have significantly increased their use of data and the internet because of the pandemic, leading to new cyberattack and cybersecurity risks.</span> <span class="attribution"><span class="source">THE CANADIAN PRESS/Jonathan Hayward</span></span></figcaption></figure><p>Following the changes the pandemic has brought about in the business world, organizations have significantly <a href="https://www.forbes.com/sites/forbesbusinesscouncil/2021/02/17/the-internet-overcoming-current-challenges-to-increase-digital-transformation/">increased their use of data and the internet.</a> This, in turn, has increased the prevalence of <a href="https://www2.deloitte.com/ch/en/pages/risk/articles/impact-covid-cybersecurity.html">cyberattacks and cybersecurity risks</a>.</p>
<p>Accounting firm PricewaterhouseCoopers recently released a report estimating that about <a href="https://www.pwc.com/ca/en/services/consulting/cybersecurity-privacy/cyber-threat-intelligence/year-in-review.html">62 per cent of Canadian organizations were impacted by ransomware incidents</a> and attacks in 2021.</p>
<p>Since these risks have crucial implications for companies and their investors and clients, cybersecurity spending saw a major increase. <a href="https://cybersecurityventures.com/cybercrime-damage-costs-10-trillion-by-2025/">Global cybersecurity spending grew</a> to more than $120 billion in 2017 from $3.5 billion in 2004.</p>
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Read more:
<a href="https://theconversation.com/cyberattacks-are-on-the-rise-amid-work-from-home-how-to-protect-your-business-151268">Cyberattacks are on the rise amid work from home – how to protect your business</a>
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<p>The Center for Strategic and International Studies estimates that <a href="https://www.forbes.com/sites/jonathanponciano/2022/03/07/extremely-destructive-russian-cyberattacks-could-cost-us-billions-of-dollars-in-economic-damage-goldman-warns/?sh=1d7d3bff2dc0">malicious cyber activity costs the world $945 billion annually</a>, while Cybersecurity Ventures estimates that <a href="https://www.cnbc.com/video/2021/03/09/cybercrime-could-cost-10-point-5-trillion-dollars-by-2025.html">global cybercrime costs could increase to $10.5 trillion by 2025</a>.</p>
<p>As a result, <a href="https://sfmagazine.com/post-entry/november-2017-cybersecurity-stakeholders/">investors, clients, suppliers and employees</a> are demanding better management and protection of corporate data, along with better <a href="https://www.osler.com/en/resources/regulations/2022/demonstrable-accountability-moving-beyond-tick-the-box-compliance-in-privacy-legislative-schemes">cybersecurity accountability and transparency</a> to mitigate increased cyber risks.</p>
<p>In an article soon to be published in the <a href="https://www.springer.com/journal/10997"><em>Journal of Management and Governance</em></a>, we argue that better cybersecurity and data protection can be achieved through a formal program put together after a careful auditing process. We outline the objectives of such a program below.</p>
<h2>A shared responsibility</h2>
<p>The responsibility of cybersecurity management no longer falls just on the shoulders of IT departments, but is now <a href="https://hbr.org/2021/01/cybersecurity-is-not-just-a-tech-problem">the responsiblity of the entire business</a>. We argue that all firm departments should be involved in cybersecurity programming and planning.</p>
<p>Management and directors should be directly involved in carrying out <a href="https://doi.org/10.1007/s10551-020-04717-9">best practices to mitigate cybersecurity risk</a>. Firm managers should lead by example by <a href="https://hbr.org/2019/11/companies-need-to-rethink-what-cybersecurity-leadership-is">embedding security throughout their company’s operations</a> and responding rapidly to cyber threats as they arise. </p>
<figure class="align-center ">
<img alt="A man adjusting the networking cables on a circuit board." src="https://images.theconversation.com/files/463778/original/file-20220517-26-fotye6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/463778/original/file-20220517-26-fotye6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=441&fit=crop&dpr=1 600w, https://images.theconversation.com/files/463778/original/file-20220517-26-fotye6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=441&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/463778/original/file-20220517-26-fotye6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=441&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/463778/original/file-20220517-26-fotye6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=555&fit=crop&dpr=1 754w, https://images.theconversation.com/files/463778/original/file-20220517-26-fotye6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=555&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/463778/original/file-20220517-26-fotye6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=555&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Investors, clients, suppliers and employees are demanding better management and protection of corporate data, along with better cybersecurity accountability and transparency.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Nathan Denette</span></span>
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<p><a href="https://www2.deloitte.com/content/dam/Deloitte/in/Documents/risk/in-ra-changing-role-of-the-board-on-cybersecurity-noexp.pdf">Corporate board members</a> should ensure the necessary cybersecurity protections are in place for their companies, and approve and review the cybersecurity governance and data protection program regularly. </p>
<p>At the very least, <a href="https://www.forbes.com/sites/betsyatkins/2022/03/18/cybersecurity-and-the-role-of-the-board/?sh=55e57baf72b3">every board should have one cyber expert</a> with proven, up-to-date credentials on its panel. This will lead to better protection for company investors, clients, suppliers and employees.</p>
<h2>Auditing is the first step</h2>
<p>The first step in creating such a program is to <a href="https://cyber.gc.ca/en/tools">assess the current effectiveness</a> of an organization’s cybersecurity risks and data management through a program like the Canadian government’s <a href="https://cyber.gc.ca/en/cyber-security-audit-program">Cyber Security Audit Program</a> or one of the <a href="https://www.nist.gov/cyberframework/assessment-auditing-resources">U.S. government’s auditing resources</a>. These publicly available tools help auditors assess the cybersecurity of their organizations.</p>
<p>As part of the audit, businesses should also hire <a href="https://carbidesecure.com/resources/business-penetration-test/">third-party hackers to test the security</a> of their systems through a penetration test. Hackers bring a unique insight to the audit process, and are capable of finding gaps that security professionals might overlook. </p>
<p>During a penetration test, hired <a href="https://us.norton.com/internetsecurity-emerging-threats-black-white-and-gray-hat-hackers.html">white- or grey-hat hackers</a> carry out an authorized cyberattack to try and find vulnerabilities in a business’s cybersecurity defences. Once detected, businesses can tighten their security to prevent these vulnerabilities from being exploited.</p>
<p>This assessment would provide businesses with a road map for creating a cybersecurity action plan to ensure the protection of sensitive information systems, and the data and privacy of a company’s employees, investors and clients.</p>
<h2>Creating the program</h2>
<p>A comprehensive cybersecurity and data protection plan should cover a wide variety of areas, including the <a href="https://www.techopedia.com/definition/31435/password-manager">creation and safeguarding of passwords</a>, <a href="https://www.techopedia.com/definition/5553/remote-access">remote</a> and <a href="https://www.techopedia.com/definition/5413/access-security">restricted access</a>, <a href="https://www.techopedia.com/definition/25837/email-encryption">email encryption</a>, social media, <a href="https://www.techopedia.com/definition/5416/anti-virus-software">anti-virus measures</a>, <a href="https://www.techopedia.com/definition/13595/contingency-plan">contingency plans</a>, <a href="https://www.techopedia.com/definition/13601/data-breach">data breach</a> responses and training programs.</p>
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<img alt="A hand unlocking a photo screen. In the background an open laptop sits on a table." src="https://images.theconversation.com/files/463776/original/file-20220517-24-jq3xbq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/463776/original/file-20220517-24-jq3xbq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/463776/original/file-20220517-24-jq3xbq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/463776/original/file-20220517-24-jq3xbq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/463776/original/file-20220517-24-jq3xbq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/463776/original/file-20220517-24-jq3xbq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/463776/original/file-20220517-24-jq3xbq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">A cybersecurity program should provide a clear data use policy and the steps that are to be taken after theft, data loss or cyberattacks.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
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<p>Crucially, it would also involve the creation of an <a href="https://cyber.gc.ca/en/guidance/developing-your-it-recovery-plan-itsap40004">IT disaster recovery and emergency plan</a>. Businesses must be prepared for any number of disasters, including power outages and cyberattacks, and be able to act accordingly to recover any lost data.</p>
<p>We also recommend that companies create a whistleblowing policy, since <a href="https://acfepublic.s3.us-west-2.amazonaws.com/2022+Report+to+the+Nations.pdf">42 per cent of occupational fraud is reported through tips</a> and more than half of those tips come from employees. A good whistleblower policy will include a hotline for complaints and <a href="https://doi.org/10.1007/s10551-017-3663-7">ensure confidentiality and protection for all whistleblowers</a>. </p>
<p>Ultimately, a high quality cybersecurity and data protection program will help firms adjust their management protocols and be better prepared for future cybersecurity risks. The internet is only becoming more and more integral to business operations as the years pass. If companies want to stay abreast of new technological developments, they will need to make cybersecurity central to their organizations.</p><img src="https://counter.theconversation.com/content/182405/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Camélia Radu receives funding from CRSH and CPA Canada-CAAA. </span></em></p><p class="fine-print"><em><span>Nadia Smaili receives funding from SSHRC. </span></em></p>An integrative cybersecurity and data protection program will help firms adjust their management protocols and be better prepared for future cybersecurity trends.Camélia Radu, Associate Professor in Accounting, Université du Québec à Montréal (UQAM)Nadia Smaili, Professor in Accounting (forensic accounting), Université du Québec à Montréal (UQAM)Licensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1569032021-03-15T17:41:19Z2021-03-15T17:41:19ZBounty programs: Ineffective in the war on money laundering<figure><img src="https://images.theconversation.com/files/389340/original/file-20210312-21-qj0bne.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C8511%2C5678&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">At first glance, these programs might seem attractive. But they suffer from fundamental flaws.</span> <span class="attribution"><span class="source">(Shutterstock)</span></span></figcaption></figure><p>Much like the war on terrorism and the war on drugs, the politics of law-making around the war on money laundering could easily be co-opted to impose Orwellian measures that risk eroding our liberties. </p>
<p>As the political hysteria over money laundering reaches its pinnacle, and <a href="https://www.narwallitigation.com/2020/05/31/fallout-from-dirty-money-and-its-threat-to-privacy-by-joven-narwal/">as I have pointed out before</a>, policy-makers are resorting to measures, oftentimes first seen in the United States, that would result in serious invasions of privacy. </p>
<p>Now, there is a growing push to import another Americanism into <a href="https://www.fintrac-canafe.gc.ca/fintrac-canafe/antimltf-eng">the Canadian anti-money laundering strategy</a>: a whistleblower incentive program that would amount to bounty hunting for violations.</p>
<p>Implementing a program such as this would not only be unfair, it would be fundamentally ineffective.</p>
<h2>The American experience</h2>
<p>The U.S. has had bounty hunting programs for banking law violations <a href="https://www.sec.gov/spotlight/dodd-frank/whistleblower.shtml">for some time</a>, presented under the guise of whistleblower protections. Most notably under the <a href="https://www.congress.gov/bill/111th-congress/house-bill/4173/text/enr?format=txt">Dodd-Frank Act</a>, which encompassed a series of reforms brought about to better regulate Wall Street after the 2008 financial crisis.</p>
<p>An enhanced bounty program for anti-money laundering violations came into effect this January with the passage of the Anti-Money Laundering Act (AMLA). It was included as part of the <a href="https://www.congress.gov/bill/116th-congress/house-bill/6395/text">National Defense Authorization Act for Fiscal Year 2021</a>, an omnibus bill that passed in December 2020 <a href="https://www.washingtonpost.com/national-security/house-votes-defense-bill-ndaa-trump-veto/2020/12/07/b872dd72-38c3-11eb-9276-ae0ca72729be_story.html">with bipartisan support, despite former President Trump’s veto</a>.</p>
<p>Under the new AMLA, a whistleblower that reports violations of anti-money laundering laws to the government that results in an <a href="https://www.sec.gov/news/speech/speech-peikin-100318">enforcement action</a> of more than US$1 million (about C$1.3 million) is entitled to a “reward,” <a href="https://www.sec.gov/news/press-release/2020-266">calculated as a percentage</a> of the money collected by the state.</p>
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<figcaption><span class="caption">What is the <em>Dodd-Frank Act</em>?</span></figcaption>
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<p>Under Dodd-Frank, these rewards were capped at US$150,000; but the new AMLA has no cap. Instead, whistleblowers receive a reward of up to 30 per cent of the enforcement action. Given the magnitude of some recent money laundering scandals, whistleblowers could receive hundreds of millions <a href="https://www.reuters.com/article/us-danskebank-moneylaundering-whistleblo-idUSKCN1NI2HC">or even billions of dollars</a>. </p>
<p>The AMLA also expands the scope of who may receive a reward to people that were ineligible under Dodd-Frank, such as internal auditors, lawyers or compliance officers — people whose job it is to find and correct behaviour before it turns into misconduct. It also protects whistleblowers from retaliation against their employers.</p>
<h2>Crossing the border into Canada</h2>
<p>Being our closest ally and trading partner, what happens in the U.S. inevitably influences Canada, and the anti-money laundering bounty hunter program is no exception. </p>
<p>The Ontario Securities Commission has already implemented a similar program and recently <a href="https://www.cbc.ca/news/business/whistleblower-payout-osc-1.5035440">made its first payments under the scheme</a>, totalling $7.5 million. Likewise, the Canada Revenue Agency (CRA) has created a bounty program for offshore tax cheating, called the <a href="https://www.canada.ca/en/revenue-agency/programs/about-canada-revenue-agency-cra/compliance/offshore-tax-informant-program.html">Offshore Tax Informant Program</a>, which offers informants up to 15 per cent of the tax collected relating to the non-compliance they report. </p>
<p>With <a href="https://www.rcinet.ca/en/2021/03/03/canada-urged-to-toughen-whistleblower-protection/">recent calls to enhance whistleblower protections in this country</a>, it is only a matter of time before we see more programs like this across Canada.</p>
<h2>Caught in the crossfire</h2>
<p>At first glance, these programs might seem attractive. But they suffer from three fundamental flaws.</p>
<p>First, they are completely reactionary, only rewarding the reporting of misconduct after it has occurred. This means that an employee who finds out about potential misconduct and does nothing, but reports it to the government later, gets a reward. Whereas an employee who stops misconduct from happening, gets nothing. This underscores that when you do things right, people won’t be sure you’ve done anything at all.</p>
<p>Second, <a href="https://doi.org/10.2308/ajpt-51663">research suggests</a> that financial incentives like these may actually decrease whistleblowing, which upends its entire purpose.</p>
<p>Third, and most troublingly, <a href="https://www.narwallitigation.com/2014/02/06/potential-pitfalls-of-the-cra-offshore-tax-informant-program/">as I’ve raised previously in relation to the CRA’s offshore tax informant program</a>, bounty programs like this create a strong incentive to provide misleading or unreliable information in the hopes of receiving an award. </p>
<p>It has long been understood in the criminal law context that information provided based on the hope of gaining an award or advantage — particularly from someone who may themselves be implicated in the wrongdoing — <a href="https://www.aclu.org/other/snitching-institutional-and-communal-consequences-professor-alexandra-natapoff">is unreliable</a>. This lesson was only learned in the criminal law sphere after <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/jtlp10&div=13&id=&page=">countless wrongful convictions</a>. </p>
<p>Anti-money laundering policy-makers would be wise to look to these unfortunate experiences before extending a fundamentally flawed structure to yet another facet of our legal system.</p><img src="https://counter.theconversation.com/content/156903/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joven Narwal does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>There is a growing trend to import another Americanism into the Canadian anti-money laundering strategy: a whistleblower incentive program that would amount to bounty hunting for violations.Joven Narwal, Adjunct Professor at the UBC Allard School of Law, University of British ColumbiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1412312020-06-23T12:01:38Z2020-06-23T12:01:38ZExposing Donald Trump: Bolton book the latest in decades of White House disclosures to test First Amendment<p>Former US national security adviser John Bolton is the latest ex-government official to rebuke the misconduct, ignorance and self-serving behaviour of the president, Donald Trump, in the form of a tell-all book. The Room Where It Happened details Trump’s idiosyncrasies, offers of favours to authoritarian leaders, lack of basic knowledge, and “<a href="https://www.nytimes.com/2020/06/18/us/politics/john-bolton-memoir-takeaways.html">obstruction of justice as a way of life</a>”. </p>
<p>Promoting the book in a series of interviews, Bolton told one reporter that he <a href="https://abcnews.go.com/Politics/bolton-hopes-trump-term-president-warns-country-imperiled/story?id=71320449">hopes it will be a one-term presidency</a>: “Two terms, I’m more troubled about,” he said.</p>
<p>Yet the battle around the publication is more than another Trumpian political scandal. It centres on the disclosure of US national security information, particularly the concept of “prior restraint” that allows the government to censor speech or expression before it has occurred.</p>
<p>The issues originate in whistleblowing in the 1970s when former officials spoke out against government wrongdoing. Bolton is certainly no whistleblower although the legacy of that era informs an ongoing struggle today around first amendment freedom of speech rights and state secrecy.</p>
<h2>Beyond politics</h2>
<p>In many respects, the case is emblematic of Trump’s White House. Bolton was in post from April 2018 to September 2019, the longest serving national security adviser under Trump, but now asserts the president “lacks the competence to carry out the job” and is not “<a href="https://abcnews.go.com/Politics/bolton-trumps-fit-office-competence-carry-job/story?id=71311306">fit for office</a>.” When the first excerpts from the book emerged, Trump characteristically lashed out with a tweet full of insults and accusations.</p>
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<p>The politics are certainly messy. Bolton, a hawkish Republican, is an opportunistic political operative. With publication of the book, he has angered Trump’s supporters. At the same time his revelations have not won him friends among the <a href="https://www.washingtonpost.com/opinions/2020/06/17/john-bolton-delivers-scathing-indictment-trump-himself/">president’s numerous opponents</a>. </p>
<p>Bolton’s <a href="https://www.nytimes.com/2020/06/18/us/politics/bolton-book-congress.html">refusal to testify</a> during the impeachment hearings at the beginning of the year, preferring to save his material for his book, has led to accusations that he was putting <a href="https://edition.cnn.com/2020/06/17/opinions/boltons-staggering-profile-in-cowardice-honig/index.html">personal interest before national interest</a> as well as profiteering, and <a href="https://www.washingtonpost.com/opinions/bolton-isnt-just-selling-books-hes-saving-his-legacy/2020/01/28/18a60cfc-420f-11ea-b503-2b077c436617_story.html">trying to save his legacy</a>.</p>
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<h2>Prior restraint</h2>
<p>The crux of the matter is not individual politics but whether Bolton was authorised to publish the memoir. On June 20, Judge Royce C Lamberth of the Federal District Court of the District of Columbia denied a last-ditch Justice Department motion to block its release. Noting that excerpts were already printed and the book widely in circulation, <a href="https://www.nytimes.com/2020/06/20/us/politics/john-bolton-book-ruling.html">he stated that</a>: the “the damage is done. There is no restoring the status quo.” </p>
<p>The author nonetheless remains in trouble. The <a href="https://www.nytimes.com/2020/06/20/us/politics/john-bolton-book-ruling.html">judge concluded that</a>: “Bolton has gambled with the national security of the United States” by potentially exposing secrets. The government could still sue Bolton for not following the prepublication review process that applies to everyone who signs a secrecy agreement.</p>
<p>The prepublication review system was created following a <a href="https://cup.columbia.edu/book/whistleblowing-nation/9780231194174">wave of whistleblowing</a> that exposed government abuse in the 1970s. The most famous example was Daniel Ellsberg’s revelation of the <a href="https://www.archives.gov/research/pentagon-papers">Pentagon Papers</a>, a top secret military report on US involvement in the Vietnam War. Other whistleblowers including <a href="https://cup.columbia.edu/book/whistleblowing-nation/9780231194174">Frank Snepp, Philip Agee, and Victor Marchetti</a> wrote books detailing their experiences working for the Central Intelligence Agency. Not all of them revealed secrets but the fact they were speaking publicly raised concerns.</p>
<p>In response, the US government created a process requiring all current and former national security officials to submit material intended for a public audience before it could be published. This vetting process was intended to protect classified information.</p>
<p>The system has been <a href="https://cup.columbia.edu/book/whistleblowing-nation/9780231194174">riddled with problems from the beginning</a>, including lengthy review processes and arbitrary decision-making around what can and cannot be published. The issues have afflicted both works that criticise and support US foreign relations. In 2019 the Knight First Amendment Institute and the American Civil Liberties Union <a href="https://knightcolumbia.org/documents/89075fc7c5/2019.04.02_ECF-1_Complaint.pdf">filed a lawsuit</a> challenging the system as dysfunctional and placing too much power in the hands of reviewers.</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/343465/original/file-20200623-188926-1nqqf6w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/343465/original/file-20200623-188926-1nqqf6w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/343465/original/file-20200623-188926-1nqqf6w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=912&fit=crop&dpr=1 600w, https://images.theconversation.com/files/343465/original/file-20200623-188926-1nqqf6w.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=912&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/343465/original/file-20200623-188926-1nqqf6w.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=912&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/343465/original/file-20200623-188926-1nqqf6w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1146&fit=crop&dpr=1 754w, https://images.theconversation.com/files/343465/original/file-20200623-188926-1nqqf6w.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1146&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/343465/original/file-20200623-188926-1nqqf6w.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1146&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Frank Snepp: forfeited royalties for his book.</span>
<span class="attribution"><span class="source">Amazon</span></span>
</figcaption>
</figure>
<p>Authors who refuse to submit work for prepublication review are liable to be prosecuted. After publishing a 1977 book without approval, Snepp was <a href="https://caselaw.findlaw.com/us-supreme-court/444/507.html">ordered by the Supreme Court</a> to forfeit all royalties to his former employer, the CIA. The court ruled that the book had caused “irreparable harm” to national security.</p>
<p>Bolton’s <a href="https://www.wsj.com/articles/the-white-house-vs-john-bolton-11591813953">legal team claims</a> he did not violate the secrecy agreement because he had satisfied all issues raised by the National Security Council’s senior director for prepublication review.</p>
<p>But the nature of the secrecy system and the review process is nebulous and allows the executive branch significant room for manoeuvre. While <a href="https://www.independent.co.uk/news/world/americas/us-politics/url-trump-john-bolton-book-classified-conversations-a9569551.html">Trump’s assertion</a> that “every conversation with me… [is] highly classified” is a stretch, the suggestion that “<a href="https://twitter.com/realDonaldTrump/status/1274366497360613381">Bolton broke the law</a>” and “<a href="https://twitter.com/realDonaldTrump/status/1274353051252535298">must pay a very big price for this, as others have before him</a>” is consistent with the broad authority afforded to presidents on national security matters.</p>
<p>The White House recently opened a <a href="https://www.nytimes.com/2020/06/20/us/politics/john-bolton-book-ruling.html">second prepublication review process</a> of Bolton’s book. The outcome of this latest review, which will be overseen by Judge Lambert, will determine his fate. If the courts follow historical precedent and rule in favour of the government, like Snepp before him, Bolton stands to forfeit his reported $2 million advance, and could face criminal liability that includes the possibility of a jail sentence.</p>
<h2>Speech rights</h2>
<p>While the author remains in legal peril, Bolton’s revelations continue to receive widespread attention. That the press can report national security secrets is rooted in another seminal whistleblowing case, Ellsberg’s release of the Pentagon Papers to the New York Times and other outlets. The <a href="https://www.law.cornell.edu/supremecourt/text/403/713">Supreme Court ruled</a> that prior restraint of the press was unconstitutional.</p>
<p>The First Amendment of the US constitution protects freedom of speech and freedom of the press from government interference. But when it comes to discussing national security information, the <a href="https://cup.columbia.edu/book/whistleblowing-nation/9780231194174">press enjoys greater protection than government employees</a>.</p>
<p>In hyper-partisan times, it can be hard to look beyond the immediate political stakes. Yet the issues raised by this episode predate Bolton and Trump and are likely to persist long after them.</p><img src="https://counter.theconversation.com/content/141231/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kaeten Mistry received funding from the Arts & Humanities Research Council.</span></em></p>The former national security adviser seems likely to be sued and could face criminal liability.Kaeten Mistry, Senior Lecturer in American History, University of East AngliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1408292020-06-18T12:17:29Z2020-06-18T12:17:29ZHere’s why some people are willing to challenge bullying, corruption and bad behavior, even at personal risk<figure><img src="https://images.theconversation.com/files/342503/original/file-20200617-94078-1gy6mv0.jpg?ixlib=rb-1.1.0&rect=209%2C286%2C7029%2C4341&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Certain characteristics mean moral rebels are willing to not go with the flow.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/rebellion-concept-royalty-free-image/1170636104">Francesco Carta fotografo/Moment via Getty Images</a></span></figcaption></figure><p>Georgia Secretary of State Brad Raffensperger, a longtime Republican, spent months standing up to intense and highly public <a href="https://www.cbsnews.com/news/georgia-election-brad-raffensperger-lindsey-graham-throw-out-ballots/">pressure from members of Congress</a>, who urged him to throw out legally cast ballots, <a href="https://theconversation.com/trumps-smoking-gun-tape-is-worse-than-nixons-but-congressional-republicans-have-less-incentive-to-do-anything-about-it-152643">and from President Donald Trump</a>, who asked him to “find 11,780 votes” to change the outcome of the election.</p>
<p>Rep. Adam Kinzinger of Illinois became the first Republican member of Congress to <a href="https://chicago.cbslocal.com/2021/01/07/congressman-adam-kinzinger-president-donald-trump-removal-25th-amendment-us-capitol-riot/">call for Trump’s immediate removal</a> from office by the 25th Amendment, following the mob riot at the U.S. Capitol on Jan. 6.</p>
<p>Ben Danielson, a well-regarded medical director of a Seattle medical clinic, resigned in November to protest ongoing racism in the hospital, noting concerns about his “<a href="https://crosscut.com/equity/2020/12/revered-doctor-steps-down-accusing-seattle-childrens-hospital-racism">own complicity as a representative of a hospital</a> that does not treat people of color as it should.”</p>
<p>All of these people spoke up to call out bad behavior, even in the face of immense pressure to stay silent. Although the specifics of each of these cases are quite different, what each of these people share is a willingness to take action. <a href="https://scholar.google.com/citations?user=-dCo5lYAAAAJ&hl=en&oi=ao">Psychologists like me</a> describe those who are willing to defend their principles in the face of potentially negative social consequences such as disapproval, ostracism and career setbacks as “moral rebels.”</p>
<p><a href="https://www.hup.harvard.edu/catalog.php?isbn=9780674241831">Moral rebels</a> speak up in all types of situations – to tell a bully to cut it out, to confront a friend who uses a racist slur, to report a colleague who engages in corporate fraud. What enables someone to call out bad behavior, even if doing so may have costs?</p>
<h2>The traits of a moral rebel</h2>
<p>First, moral rebels generally <a href="https://doi.org/10.1080/10508422.2015.1012765">feel good about themselves</a>. They tend to have high self-esteem and to feel confident about their own judgment, values and ability. They also <a href="https://doi.org/10.1177/0146167209346170">believe their own views are superior</a> to those of others, and thus that they have a social responsibility to share those beliefs.</p>
<p>Moral rebels are also <a href="https://doi.org/10.1016/j.jsp.2015.10.002">less socially inhibited than others</a>. They aren’t worried about feeling embarrassed or having an awkward interaction. Perhaps most importantly, they are far less concerned about conforming to the crowd. So, when they have to choose between fitting in and doing the right thing, they will probably choose to do what they see as right. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/342510/original/file-20200617-94060-1a795tg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/342510/original/file-20200617-94060-1a795tg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/342510/original/file-20200617-94060-1a795tg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=576&fit=crop&dpr=1 600w, https://images.theconversation.com/files/342510/original/file-20200617-94060-1a795tg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=576&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/342510/original/file-20200617-94060-1a795tg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=576&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/342510/original/file-20200617-94060-1a795tg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=724&fit=crop&dpr=1 754w, https://images.theconversation.com/files/342510/original/file-20200617-94060-1a795tg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=724&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/342510/original/file-20200617-94060-1a795tg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=724&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The orbitofrontal cortex (in green on this brain that is facing to the left) looks different in moral rebels.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/illustration/digital-illustration-of-human-brain-with-royalty-free-illustration/98193711">Dorling Kindersley via Getty Images</a></span>
</figcaption>
</figure>
<p>Research in neuroscience reveals that people’s ability to stand up to social influence is reflected in anatomical differences in the brain. People who are more concerned about fitting in show <a href="https://doi.org/10.1016/j.cub.2012.01.012">more gray matter volume in one particular part of the brain</a>, the lateral orbitofrontal cortex. This area right behind your eyebrows creates memories of events that led to negative outcomes. It helps guide you away from things you want to avoid the next time around – such as being rejected by your group. </p>
<p>People who are more concerned about conforming to their group also show <a href="https://doi.org/10.1016/j.jadohealth.2013.12.035">more activity in two other brain circuits</a>; one that responds to social pain – like when you experience rejection – and another that tries to understand others’ thoughts and feelings. In other words, those who feel worst when excluded by their group try the hardest to fit in.</p>
<p>What does this suggest about moral rebels? For some people, feeling like you’re different than everyone else feels really bad, even at a neurological level. For other people, it may not matter as much, which makes it easier for them to stand up to social pressure. </p>
<p>These characteristics are totally agnostic as to what the moral rebel is standing up for. You could be the lone anti-abortion voice in your very liberal family or the lone abortion rights advocate in your very conservative family. In either scenario it’s about standing up to social pressure to stay silent – and that pressure of course could be applied about anything.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/342504/original/file-20200617-94101-1j66rwv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/342504/original/file-20200617-94101-1j66rwv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/342504/original/file-20200617-94101-1j66rwv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/342504/original/file-20200617-94101-1j66rwv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/342504/original/file-20200617-94101-1j66rwv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/342504/original/file-20200617-94101-1j66rwv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/342504/original/file-20200617-94101-1j66rwv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/342504/original/file-20200617-94101-1j66rwv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Kids learn to stand up for what they believe in when they see their role models doing so.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/girl-jumps-holding-a-sign-while-she-and-her-family-protest-news-photo/1216479646">Apu Gomes/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>The path of a moral rebel</h2>
<p>What does it take to create a moral rebel?</p>
<p>It helps to have <a href="https://psycnet.apa.org/record/2005-08753-003">seen moral courage in action</a>. Many of the civil rights activists who participated in marches and sit-ins in the southern United States in the 1960s had parents who displayed moral courage and civic engagement, as did many of the Germans who rescued Jews during the Holocaust. Watching people you look up to show moral courage can inspire you to do the same.</p>
<p>A budding moral rebel also needs to feel empathy, imagining the world from someone else’s perspective. Spending time with and really getting to know people from different backgrounds helps. White high school students who had more contact with people from different ethnic groups – in their neighborhood, at school and on sports teams – have higher levels of empathy and see people from different minority groups in <a href="https://doi.org/10.1111/josi.12053">more positive ways</a>.</p>
<p>These same students are more likely to report taking some action if a classmate uses an ethnic slur, such as by directly challenging that person, supporting the victim or telling a teacher. People who are <a href="https://doi.org/10.1007/s11292-010-9109-1">more empathetic</a> are also more likely to defend someone who is being bullied.</p>
<p>Finally, moral rebels need particular skills and practice using them. One study found that teenagers who <a href="https://doi.org/10.1111/j.1467-8624.2011.01682.x">held their own in an argument with their mother</a>, using reasoned arguments instead of whining, pressure or insults, were the most resistant to peer pressure to use drugs or drink alcohol later on. Why? People who have practiced making effective arguments and sticking with them under pressure are better able to use these same techniques with their peers. </p>
<p>Moral rebels clearly have particular characteristics that enable them to stand up for what’s right. But what about the rest of us? Are we doomed to be the silent bystanders who meekly stand by and don’t dare call out bad behavior?</p>
<p>Fortunately, no. It is possible to develop the ability to stand up to social pressure. In other words, anyone can learn to be a moral rebel.</p>
<p><em>This is an updated version of an article originally published on June 18, 2020.</em></p><img src="https://counter.theconversation.com/content/140829/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Catherine A. Sanderson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Psychologists have identified the characteristics of ‘moral rebels’ who make the tough choice to stand up for their principles in the face of negative consequences.Catherine A. Sanderson, Poler Family Professor and Chair of Psychology, Amherst CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1289672020-01-14T13:47:53Z2020-01-14T13:47:53ZCan the Constitution stop the government from lying to the public?<figure><img src="https://images.theconversation.com/files/308449/original/file-20200103-11904-29ocdq.jpg?ixlib=rb-1.1.0&rect=0%2C17%2C6000%2C5973&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The old joke says you can tell a politician is lying if his lips are moving.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-illustration/politician-long-nose-lies-man-pop-1071460601">Alexander_P/Shutterstock.com</a></span></figcaption></figure><p>When regular people lie, sometimes their lies are detected, sometimes they’re not. Legally speaking, sometimes they’re protected by the First Amendment – and sometimes not, like when they commit fraud or perjury. </p>
<p>But what about when government officials lie?</p>
<p>I take up this question in my recent book, “<a href="https://www.cambridge.org/core/books/governments-speech-and-the-constitution/BAE6367A698475ED9DBB328B5D9E40E5">The Government’s Speech and the Constitution</a>.” It’s not that surprising that public servants lie – they are human, after all. But when an agency or official backed by the power and resources of the government tells a lie, it sometimes causes harm that only the government can inflict.</p>
<p>My research found that lies by government officials can violate the Constitution in several different ways, especially when those lies deprive people of their rights.</p>
<h2>Clear violations</h2>
<p>Consider, for instance, police officers who <a href="https://supreme.justia.com/cases/federal/us/391/543/">falsely tell a suspect that they have a search warrant</a>, or <a href="https://supreme.justia.com/cases/federal/us/372/528/">falsely say that the government will take the suspect’s child away</a> if the suspect doesn’t waive his or her constitutional rights to a lawyer or against self-incrimination. These lies violate constitutional protections provided in the <a href="https://www.law.cornell.edu/constitution/fourth_amendment">Fourth</a>, <a href="https://www.law.cornell.edu/constitution/fifth_amendment">Fifth</a> and <a href="https://www.law.cornell.edu/constitution/sixth_amendment">Sixth</a> Amendments.</p>
<p>If the government jails, taxes or fines people because it disagrees with what they say, it violates the First Amendment. And under some circumstances, the government can silence dissent just as effectively through its lies that encourage employers and other third parties to punish the government’s critics. During the 1950s and 1960s, for example, the <a href="http://mshistorynow.mdah.state.ms.us/articles/243/mississippi-sovereignty-commission-an-agency-history">Mississippi State Sovereignty Commission</a> spread damaging falsehoods to the employers, friends and neighbors of citizens who spoke out against segregation. As a federal court found decades later, the agency “<a href="https://law.justia.com/cases/federal/district-courts/FSupp/719/1345/1438234/">harassed individuals who assisted organizations</a> promoting desegregation or voter registration. In some instances, the commission would suggest job actions to employers, who would fire the targeted moderate or activist.”</p>
<p>And some lawsuits have accused government officials of <a href="https://www.reuters.com/article/us-usa-noflylist/us-court-allows-no-fly-list-lawsuits-dissenters-warn-of-danger-idUSKCN1Q32JV">misrepresenting how dangerous a person was</a> when putting them on a no-fly list. Some judges have expressed <a href="https://www.leagle.com/decision/infdco20140630872">concern about whether the government’s no-fly listing procedures</a> are rigorous enough to justify restricting a person’s freedom to travel. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/308390/original/file-20200102-11900-12qvggu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/308390/original/file-20200102-11900-12qvggu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/308390/original/file-20200102-11900-12qvggu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=366&fit=crop&dpr=1 600w, https://images.theconversation.com/files/308390/original/file-20200102-11900-12qvggu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=366&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/308390/original/file-20200102-11900-12qvggu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=366&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/308390/original/file-20200102-11900-12qvggu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=460&fit=crop&dpr=1 754w, https://images.theconversation.com/files/308390/original/file-20200102-11900-12qvggu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=460&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/308390/original/file-20200102-11900-12qvggu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=460&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">In 1971, The New York Times and The Washington Post published the Pentagon Papers, exposing officials’ lies about the war in Vietnam.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Watchf-Associated-Press-Domestic-News-New-York-/61378866a8224e64be95556e7b29dcb5/137/0">AP Photo/Jim Wells</a></span>
</figcaption>
</figure>
<h2>Spreading distrust and uncertainty</h2>
<p>But in other situations, it can be difficult to find a direct connection between the government’s speech and the loss of an individual right. Think of government officials’ lies about their own misconduct, or their colleagues’, to avoid political and legal accountability – like the many lies about the Vietnam War by Lyndon Johnson’s administration, <a href="http://archive.nytimes.com/www.nytimes.com/interactive/us/2011_PENTAGON_PAPERS.html?_r=1">as revealed by the Pentagon Papers</a>. </p>
<p>Those sorts of lies are part of what I’ve called “<a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3097156">the government’s manufacture of doubt</a>.” These include the government’s falsehoods that seek to distract the public from efforts to discover the truth. For instance, in response to growing concerns about his campaign’s connections to Russia, President Donald Trump claimed that <a href="https://www.reuters.com/article/us-usa-trump-obama/trump-claims-obama-wiretapped-him-during-campaign-obama-refutes-it-idUSKBN16B0CC">former President Barack Obama had wiretapped him</a> during the campaign, even though the Department of Justice confirmed that <a href="https://www.newsweek.com/trump-russia-investigation-wiretap-fbi-obama-658888">no evidence supported that claim</a>.</p>
<p>Decades earlier, in the 1950s, Sen. Joseph McCarthy sought both media attention and political gain through <a href="https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1286&context=californialawreview">outrageous and often unfounded claims</a> that contributed to a culture of fear in the country.</p>
<p>When public officials speak in these ways, they undermine public trust and frustrate the public’s ability to hold the government accountable for its performance. But they don’t necessarily violate any particular person’s constitutional rights, making lawsuits challenging at best. In other words, just because the government’s lies hurt us does not always mean that they violate the Constitution. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/308393/original/file-20200102-11896-rl3ntn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/308393/original/file-20200102-11896-rl3ntn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/308393/original/file-20200102-11896-rl3ntn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=411&fit=crop&dpr=1 600w, https://images.theconversation.com/files/308393/original/file-20200102-11896-rl3ntn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=411&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/308393/original/file-20200102-11896-rl3ntn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=411&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/308393/original/file-20200102-11896-rl3ntn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=516&fit=crop&dpr=1 754w, https://images.theconversation.com/files/308393/original/file-20200102-11896-rl3ntn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=516&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/308393/original/file-20200102-11896-rl3ntn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=516&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Sen. Joe McCarthy, left, talks with his attorney, Roy Cohn, during Senate hearings in 1954.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:McCarthy_Cohn.jpg">United Press International/Wikimedia Commons</a></span>
</figcaption>
</figure>
<h2>What else can people do?</h2>
<p>There are other important options for protecting the public from the government’s lies. Whistleblowers can help uncover the government’s falsehoods and other misconduct. Recall FBI Associate Director Mark Felt, <a href="https://www.vanityfair.com/news/politics/2005/07/deepthroat200507">Watergate’s “Deep Throat”</a> source for The Washington Post’s investigation, and <a href="https://www.npr.org/templates/story/story.php?storyId=5651609">Army Sgt. Joseph Darby</a>, who revealed the mistreatment of prisoners at Abu Ghraib. And lawmakers can enact, and lawyers can help enforce, laws that protect whistleblowers who expose government lies. </p>
<p>Legislatures and agencies can exercise their oversight powers to hold other government officials accountable for their lies. For example, Senate hearings led Sen. McCarthy’s colleagues to <a href="https://www.senate.gov/artandhistory/history/common/censure_cases/133Joseph_McCarthy.htm">formally condemn his conduct</a> as “<a href="https://www.senate.gov/artandhistory/history/resources/pdf/1954McCarthyCensure.pdf">contrary to senatorial traditions and … ethics</a>.” </p>
<p>In addition, the press can seek documents and information to check the government’s claims, and the public can protest and vote against those in power who lie. Public outrage over the government’s lies about the war in Vietnam, for example, contributed to <a href="https://www.history.com/news/lbj-exit-1968-presidential-race">Lyndon Johnson’s 1968 decision not to seek reelection</a>. Similarly, the public’s disapproval of government officials’ lies to cover up the Watergate scandal helped lead to <a href="https://www.history.com/this-day-in-history/nixon-resigns">Richard Nixon’s 1974 resignation</a>.</p>
<p>It can be hard to prevent government officials from lying, and difficult to hold them accountable when they do. But the tools available for doing just that include not only the Constitution but also persistent pushback from other government officials, the press and the people themselves.</p>
<p>[ <em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/128967/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Helen Norton does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>When a person or agency backed by the power and resources of the government tells a lie, it sometimes causes harm that only the government can inflict.Helen Norton, Rothgerber Chair in Constitutional Law, University of Colorado BoulderLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1264032019-11-07T15:28:22Z2019-11-07T15:28:22ZWhy whistleblowers must be kept confidential – just look at what happened to me<p>As the <a href="https://abcnews.go.com/Politics/controversial-phone-call-impeachment-calls-trump-whistleblower-timeline/story?id=65810201">impeachment process</a> gathers speed in Washington, President Donald Trump has attacked the whistleblower at the heart of allegations surrounding his phone call with the Ukrainian President Volodymyr Zelenskiy. </p>
<p>In recent weeks, both <a href="https://www.axios.com/trump-identify-whistleblower-ukraine-complaint-759b3cdd-1918-490d-b8c4-536776cb86f8.html">Trump</a> and <a href="https://www.realclearpolitics.com/video/2019/11/04/rand_paul_on_whistleblower_at_trump_rally_media_do_your_job_and_print_his_name.html">Republican senator, Rand Paul</a>, have stepped up calls for the whistleblower to be identified. </p>
<p>Trump <a href="https://www.latimes.com/politics/story/2019-09-26/trump-at-private-breakfast-who-gave-the-whistle-blower-the-information-because-thats-almost-a-spy">reportedly told the audience at a private event</a> in late September that the whistleblowers should be regarded as “almost a spy” for their “treasonous” acts of exposing his alleged impropriety. Such language is a classic example of “stigmatisation” used by those at fault to deflect attention away from themselves and back at their accuser. </p>
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<p>If whistleblowing is to succeed, it relies upon credibility, which in turn is founded on the validity of the evidence and the trustworthiness of the person disclosing it. While organisations or regimes might not easily refute documented evidence, they can more easily damage or destroy a reputation, and with it the credibility of an individual whistleblower. But if the character and evidence of the whistleblower are believed then organisations and their leaders stand to have their own reputations damaged and face potentially enormous commercial, political and economic losses. </p>
<h2>Destroying reputations</h2>
<p>I have <a href="https://www.private-eye.co.uk/pictures/special_reports/shady-arabia.pdf">personal experience of this process</a>. In 2010, I made a confidential disclosure about large-scale corruption in British government defence contracts in Saudi Arabia to the UK Ministry of Defence, who exposed me to the defence contractor I was employed by, GPT, resulting in my dismissal from the company. The UK’s Serious Fraud Office requested consent to prosecute from the attorney general in July 2018 and Transparency International and Spotlight on Corruption are now asking <a href="https://www.ft.com/content/5a5921e0-e6c3-11e9-b112-9624ec9edc59">him to justify the delay</a>.</p>
<p>While the immediate loss of my job and source of income were devastating, the real damage came from the ensuing professional and personal “stigmatisation” of being someone not to be trusted, a loose cannon who cannot be relied on, and who is therefore unemployable. </p>
<p>After co-founding the whistleblower support organisation, <a href="https://www.wbuk.org/">Whistleblowers UK</a> in 2012, I went on to research the whistleblower dilemma as an element of the human right of freedom of expression. My PhD research is looking at why people do not blow the whistle. Although my investigations are still ongoing, it’s already clear that the primary deterrent to speaking out is fear: fear of losing one’s job, income, mental and physical health and domestic peace. </p>
<p>It’s this fear that becomes a weapon in the hands of the unscrupulous and ruthless. While the initial wounds against whistleblowers who are uncovered are inflicted at work, the deeper damage and deterrents are accomplished through personal and professional reputational stigma. This phenomenon is reflected across all sectors of society, <a href="https://theconversation.com/sacked-for-whistleblowing-now-the-nhs-must-reform-16176">including the NHS</a>, not just the business world. </p>
<p>The issue of disclosing wrongdoing rapidly escalates into a war of reputations as a matter of survival for both the whistleblower and organisation, where stigmatisation becomes a key weapon in a battle for public credibility. As the sovereign or corporate entity uses the full range of its soft and hard resources to diminish the threat, it often reduces the credibility of the witness, and therefore their evidence, deterring others from following a similar path. </p>
<p>One high-profile example of this was the <a href="https://www.theguardian.com/business/2018/may/11/barclays-jes-staley-fined-whistleblower-fca">action of Jes Staley</a>, chief executive of Barclays, who in 2016 made repeated attempts to unveil an anonymous whistleblower at the bank. Staley <a href="https://www.bankofengland.co.uk/news/2018/may/fca-and-pra-jointly-fine-mr-james-staley-and-announce-special-requirements-at-barclays">was fined £642,000</a> by the UK’s Financial Conduct Authority and Prudential Regulation Authority for his misdemeanour. </p>
<p>It’s actions like this, or the threat of being unveiled, which my research shows can deter others from making disclosures because of the fear of future recrimination. </p>
<h2>On the attack</h2>
<p>As a result, stigmatisation of the whistleblower often becomes an essential element of the organisation’s defensive strategy. After all, who wants to be known as a “snitch” or a “spy” or even a “traitor”? </p>
<p>Trump has stuck to this playbook. In November, he sought to portray the whistleblower as an insignificant informer acting out of grudge rather than a sense of duty. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1191342959695933441"}"></div></p>
<p>This was purposely styled to induce a cynical scepticism in the minds of the public about the true motives of the whistleblower, in contrast to the allegations they are bringing forward about inappropriate behaviour. Trump’s <a href="http://theconversation.com/why-does-a-president-demand-loyalty-from-people-who-work-for-him-95199">demand for personal fealty</a> from former FBI head James Comey back in 2017, already revealed how the president prioritises personal loyalty over morality from those working for his administration.</p>
<p>It is this fundamental contest between loyalty to the organisation and honest disclosure of wrongdoing to a wider society that lies at the heart of the whistleblower dilemma for organisations. Confidentiality of the whistleblower’s identity is the first line of protection against those in power who seek to destroy those who dare speak about organisational wrong-doing. </p>
<p>Without such confidentiality, the powerful cannot be held to account by the vulnerable. And if that becomes the norm, we run the risk of descending into a pit of immorality. As the philosopher Edmund Burke noted: “When bad men combine, the good must associate; else they will fall one by one, an unpitied sacrifice in a contemptible struggle.”</p><img src="https://counter.theconversation.com/content/126403/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ian Foxley does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A former British whistleblower on the damage done when those who come forward with the truth are stigmatised.Ian Foxley, PhD Researcher, University of YorkLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1254792019-10-30T22:38:23Z2019-10-30T22:38:23ZIf the Trump whistleblowers lived in Canada, they’d face serious risks<figure><img src="https://images.theconversation.com/files/298822/original/file-20191027-113998-1a9ypzw.jpg?ixlib=rb-1.1.0&rect=50%2C0%2C5615%2C3631&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Whistleblowers step forward and shine a light on abuses of power at all levels of government. So why aren't we protecting them?</span> <span class="attribution"><span class="source">(Shutterstock)</span></span></figcaption></figure><p>Whistleblowers put their careers, and sometimes their safety, on the line to protect democratic ideals and the public interest. </p>
<p>Canada, like its southern neighbour, is not immune to whistleblowing controversies at the highest levels of government. Would a whistleblower be protected in Canada if faced with a situation similar to the <a href="https://www.nytimes.com/interactive/2019/10/26/opinion/trump-whistleblower-letter.html">White House whistleblower’s</a>? Not so much. </p>
<p>There are countless examples of Canadian public officials who have suffered reprisals such as having their <a href="https://www.cbc.ca/news/canada/prince-edward-island/3-former-civil-servants-file-1-8m-suit-against-former-p-e-i-premier-government-agency-over-privacy-breach-1.5010386">personal information disclosed</a>, being <a href="https://cullencommission.ca/app/uploads/sites/527/2019/10/003-Ruling-3-re-Applications-for-Standing.pdf">forced into early retirement</a>, <a href="https://www.cbc.ca/news/canada/montreal/agriculture-minister-whistleblower-1.5173818">being fired</a>, <a href="https://www.cbc.ca/news/business/alberta-regulator-whistleblower-1.5312463">threatened</a> and <a href="https://www.cbc.ca/news/canada/british-columbia/delays-in-whistleblower-protection-system-1.4803588">even bankrupted</a> after going public with allegations of wrongdoing. </p>
<p>For example, in 1998, three Health Canada scientists revealed they <a href="https://www.cbc.ca/news/canada/ottawa/shiv-chopra-not-reinstated-1.4276816">were being pressured to approve veterinary drugs</a> that would get into the food supply without the legally required evidence of human safety. Their revelations ultimately led to a ban on bovine growth hormone. However, after blowing the whistle, they were fired for “insubordination.”</p>
<p>During the 2004 <a href="https://www.cbc.ca/news2/background/groupaction/gomeryreport_phasetwo_full.html">sponsorship scandal</a>, a <a href="https://carleton.ca/profbrouard/wp-content/uploads/2014ArticleIJCSMcaseCanadianSponsorshipCase2014June91002014002.pdf">Public Works procurement officer</a> refused to sign off on advertising contracts that he felt broke the rules of normal procurement. He was effectively fired. </p>
<p>This led to the eventual revelation that advertising contracts worth millions from the federal sponsorship program <a href="https://www.macleans.ca/uncategorized/allan-cutler-was-a-conservative-hero/">were being illegally directed to government-friendly firms</a>. </p>
<p>In 2013, <a href="https://www.nationalmagazine.ca/en-ca/articles/law/ethics/2013/the-whistleblower">a senior lawyer with the Department of Justice</a> challenged his own department in court for allowing laws to be enacted that would likely infringe upon the Canadian Charter and Bill of Rights. He was suspended without pay and eventually took early retirement.</p>
<h2>Not clearcut</h2>
<p>Whistleblowing cases are not always clearcut. The Canadian legislation aimed at protecting whistleblowers in Canada, which provincial laws are modelled on, is the <a href="https://laws-lois.justice.gc.ca/eng/acts/p-31.9/">Public Servant Disclosure Protection Act (PSDPA)</a>. It adopts a narrow definition of whistleblower, protecting only certain federal employees. </p>
<p>Some argue that a whistleblower can be anyone who has <a href="https://www.whistleblowers.org/what-is-a-whistleblower/">knowledge of wrongdoing</a> by an organization. Whistleblowers are often accused of being disgruntled, misguided or otherwise flawed employees. </p>
<p>For instance, in 2016, a Saskatchewan nurse who was home on maternity leave <a href="https://nationalpost.com/pmn/news-pmn/canada-news-pmn/saskatchewan-nurse-fighting-26k-fine-over-facebook-comments">criticized on Facebook the care home where her grandfather was a patient</a>. As a result, the Saskatchewan Registered Nurses Association disciplined Carolyn Strom for professional misconduct and bringing the profession into disrepute, and fined her $26,000. </p>
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<img alt="" src="https://images.theconversation.com/files/299347/original/file-20191029-183147-upr3is.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/299347/original/file-20191029-183147-upr3is.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/299347/original/file-20191029-183147-upr3is.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/299347/original/file-20191029-183147-upr3is.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/299347/original/file-20191029-183147-upr3is.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/299347/original/file-20191029-183147-upr3is.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/299347/original/file-20191029-183147-upr3is.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Strom was found guilty of professional misconduct by the Saskatchewan Registered Nurses Association in 2016 and handed a hefty financial penalty.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Michael Bell</span></span>
</figcaption>
</figure>
<p>The <a href="https://bccla.org/our_work/strom-v-saskatchewan-registered-nurses-association/">B.C. Civil Liberties Association</a> has expressed concern that the ruling will discourage health-care workers from discussing problems they encounter, even in private forums. <a href="https://www.theguardian.pe.ca/news/canada/saskatchewan-nurse-carolyn-strom-goes-to-provinces-top-court-in-four-year-landmark-case-over-facebook-post-352988/">A lawyer for the nurse’s association</a> argued that Strom “should have taken internal measures instead of speaking publicly and identifying herself as a nurse.”</p>
<p>More recently, <a href="https://www.bbc.com/news/world-us-canada-47362652">Jody Wilson-Raybould</a>, former justice minister and attorney general, alleged that she was wrongfully pressured by the Prime Minister’s Office to intervene in the prosecution of SNC-Lavalin for overseas bribery in favour of a deferred prosecution agreement. </p>
<p>The fact that she alleged wrongdoing against her superiors put her in <a href="https://slate.com/news-and-politics/2019/10/canada-election-justin-trudeau-jody-wilson-raybould-disruption.html">the middle of a political storm</a>.</p>
<h2>Ineffective legislation</h2>
<p>The PSDPA act has been <a href="https://cfe.ryerson.ca/sites/default/files/whats_wrong_with_the_psdpa_0.pdf">criticized as ineffective</a> by free speech advocates. It has a <a href="https://d3n8a8pro7vhmx.cloudfront.net/whistleblowingcanada/pages/57/attachments/original/1572418700/Policy_Brief_No._1__Who_is_a_Whistleblower.pdf?1572418700">restrictive definition</a> of who is a whistleblower, and does not cover all the people who may have knowledge of an organization’s affairs. </p>
<p>The act provides the option for employees to use the internal disclosure process — contacting a supervisor, or “senior disclosure officer” or directly to the <a href="https://www.psic-ispc.gc.ca/">Public Service Integrity Commissioner (PSIC)</a>. The in-house strategy has a chilling effect because potential whistleblowers might need to air their grievances with the very managers they’re experiencing problems with.</p>
<p>Opting to go to the Public Service Integrity Commissioner often doesn’t help, because the commissioner can refuse to deal with any disclosure — either in terms of wrongdoing or reprisal. </p>
<p>Whistleblowers aren’t permitted to air their grievances publicly, except where there is urgent threat to health or safety. They are not permitted to go to members of Parliament or the courts for help, and they’re blocked by the commissioner from access to the <a href="https://www.psdpt-tpfd.gc.ca/Home-eng.html">Public Servants Disclosure Protection Tribunal</a> in most cases.</p>
<p>This asymmetrical system also puts the onus on the whistleblower to prove the reprisals they face for coming forward are actually reprisals, <a href="https://curve.carleton.ca/55116fc0-3210-4ae4-9bf4-1e242483df94">acknowledged by experts as a near-impossible task</a>. </p>
<h2>Failing spectacularly</h2>
<p>Despite the importance of whistleblowing as a fundamental check on power in democratic societies, Canada fails spectacularly in the area of whistleblower protection laws. </p>
<p>In June 2017, the government’s <a href="https://www.ourcommons.ca/Committees/en/OGGO">Operations and Estimates Committee</a>, made up of MPs from all parties, submitted a <a href="https://www.ourcommons.ca/DocumentViewer/en/42-1/OGGO/report-9/page-21#1">unanimous report</a> to the government lamenting restrictions and lack of clarity in the Public Servants Disclosure Act and recommending amendments. </p>
<p>The government response came a few months later and made clear there would be no legislative changes. Whistleblowing expert Tom Devine, from the U.S. <a href="https://www.whistleblower.org/">Government Accountability Project</a>, noted at the 2019 <a href="https://www.uu.nl/en/events/international-whistleblowing-conference-iwrn">International Whistleblowing Research Conference</a> that Canada’s whistleblowing act did not contain even one of the <a href="https://www.whistleblower.org/international-best-practices-for-whistleblower-policies/">20 elements considered “best practice”</a> for whistleblowing protection legislation. </p>
<p>Pamela Forward, president of the <a href="https://www.whistleblowingcanada.com/about">Whistleblowing Canada Research Society</a>, a leading think tank on the issue noted:</p>
<blockquote>
<p>“Canada’s treatment of whistleblowers should be of imminent concern … because a whistleblower in a situation like the one currently unfolding in the U.S. would not enjoy a similar level of protection in Canada.”</p>
</blockquote>
<p>Whistleblowers can play a crucial role when <a href="https://www.hilltimes.com/2019/07/01/205637/205637">democratic institutions begin to disintegrate</a> by providing a check on abuses of power and accountability at all levels of government. </p>
<p>Whistleblowers protect us. But who protects them?</p>
<p>[ <em>You’re smart and curious about the world. So are The Conversation’s authors and editors.</em> <a href="https://theconversation.com/ca/newsletters?utm_source=TCCA&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=youresmart">You can read us daily by subscribing to our newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/125479/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Paloma Raggo receives funding from Social Sciences and Humanities Research Council. She is a board member of Whistleblowing Canada Research Society. </span></em></p>Whistleblowers protect us. But who protects them?Paloma Raggo, Assistant Professor of Philanthropy and Nonprofit Leadership, Carleton UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1242482019-09-27T17:16:55Z2019-09-27T17:16:55ZSpies and the White House have a history of running wild without congressional oversight<figure><img src="https://images.theconversation.com/files/294454/original/file-20190926-51414-h53rap.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Donald Trump and Rudy Giuliani in late November 2016, after Trump won the presidential election. </span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Trump/e499e75d52224697a2aac62bc854030a/138/0">AP/Carolyn Kaster</a></span></figcaption></figure><p>At the heart of the current crisis over <a href="https://www.nytimes.com/2019/09/25/us/politics/ukraine-transcript-trump.html">President Donald Trump’s dealings with Ukrainian President Volodymyr Zelenskiy</a> is an <a href="https://www.nytimes.com/interactive/2019/09/26/us/politics/whistle-blower-complaint.html">intelligence whistleblower</a> whose information has finally made it into public view.</p>
<p>The whistleblower’s complaint about Trump’s interaction with Zelenskiy was initially <a href="https://intelligence.house.gov/news/documentsingle.aspx?DocumentID=688">withheld from the House Intelligence Committee</a>, something which the committee chairman protested was a violation of the law. </p>
<p>The complaint was ultimately <a href="https://www.nytimes.com/2019/09/25/us/politics/whistle-blower-complaint-trump.html">turned over</a> after House Speaker Nancy Pelosi announced an <a href="https://www.youtube.com/watch?v=Weaoc5EZN0c">impeachment inquiry of the president</a> and almost two weeks <a href="https://intelligence.house.gov/news/documentsingle.aspx?DocumentID=708">after the committee subpoenaed</a> it, and after the Senate had <a href="https://www.rollcall.com/news/house-changes-whistleblower-resolution-to-match-senate">passed a unanimous resolution</a> to provide the complaint to Congress.</p>
<p>For decades now, the evolving role of congressional oversight of U.S. intelligence has involved major clashes and scandals, from the <a href="https://www.britannica.com/event/Iran-Contra-Affair">Iran-Contra affair of the 1980s</a> to the <a href="https://www.nytimes.com/2008/06/05/washington/05cnd-intel.html">intelligence abuses that led to the 2003 war in Iraq</a>. </p>
<p>Central to all of these clashes are attempts by intelligence agencies, the president and the executive branch to withhold damning information from Congress. Another common element is the use of civilians to carry out presidential or intelligence agency agendas.</p>
<h2>Coups and assassinations</h2>
<p>“Intelligence” is the government’s term for collection of information of military or diplomatic value. After World War II, large, new agencies – <a href="https://www.cia.gov/about-cia/history-of-the-cia">the CIA</a> and the <a href="https://www.britannica.com/topic/National-Security-Agency">National Security Agency</a> – <a href="https://www.govinfo.gov/content/pkg/GPO-INTELLIGENCE/html/int022.html">were established</a> to conduct information gathering and secret operations.</p>
<p>From the aftermath of World War II to the 1970s, there was <a href="https://fas.org/sgp/crs/intel/R45175.pdf">virtually no congressional oversight</a> <a href="https://www.intelligence.senate.gov/sites/default/files/10388.pdf">of this intelligence apparatus</a>. And there was only intermittent <a href="https://library.cqpress.com/cqalmanac/document.php?id=cqal76-1189802">presidential direction</a>. During the Cold War, intelligence was considered too sensitive for Congress to know. </p>
<p>Some of the agencies’ intelligence work, called “covert activities,” was not mere information-gathering. And some of the <a href="https://2001-2009.state.gov/r/pa/ho/frus/johnsonlb/xxvi/4440.htm">activities undertaken by these agencies</a> had a profound impact around the world – without U.S. democratic institutions playing a role. </p>
<p>For example, in 1953 the <a href="https://www.theguardian.com/world/2013/aug/19/cia-admits-role-1953-iranian-coup">CIA overthrew the democratically elected leader of Iran</a>, Mohammad Mossadegh, and installed in his place the shah, an autocrat who proved happy to do what the U.S. wanted. </p>
<p>The public and Congress had <a href="https://foreignpolicy.com/2017/06/20/64-years-later-cia-finally-releases-details-of-iranian-coup-iran-tehran-oil/">little or no awareness that the CIA</a> engineered this.</p>
<p>In the 1970s, between <a href="https://www.nytimes.com/1974/07/03/archives/cia-is-criticized-over-watergate-minority-staff-in-senate-says.html">information uncovered in the Watergate hearings</a> and <a href="https://www.nytimes.com/1974/12/22/archives/huge-cia-operation-reported-in-u-s-against-antiwar-forces-other.html">some key investigative journalism</a>, the lid blew off the intelligence agency’s secrecy about the CIA’s many covert interventions both in other countries’ affairs <a href="https://www.nytimes.com/1974/07/03/archives/cia-is-criticized-over-watergate-minority-staff-in-senate-says.html">and in the U.S.</a> </p>
<p>A special temporary committee headed by <a href="https://www.senate.gov/artandhistory/history/common/investigations/ChurchCommittee.htm">Senator Frank Church (D-Idaho)</a> <a href="https://www.congress.gov/bill/94th-congress/senate-resolution/21">was established</a> <a href="https://www.senate.gov/artandhistory/history/common/investigations/pdf/ChurchCommittee_SRes21.pdf">in 1975</a> to explore “the extent, if any, to which illegal, improper, or unethical activities were engaged in by any agency of the Federal Government.” </p>
<p>The activities uncovered included various <a href="https://www.politico.com/magazine/story/2018/02/24/fidel-castro-cia-mafia-plot-216977">unsuccessful attempts to kill Fidel Castro</a>, the communist leader of Cuba. The CIA’s plans for Castro’s assassination included help from organized crime figures like Santo Trafficante and other people who were not U.S. government officials. Rudy Giuliani is not an organized crime figure, but <a href="https://www.vox.com/policy-and-politics/2019/9/25/20883309/rudy-giuliani-ukraine-trump">he’s similar in that he’s a civilian involved in foreign affairs</a>: in this case, the president’s dealings with Ukraine. </p>
<p><a href="http://www.aarclibrary.org/publib/contents/church/contents_church_reports.htm">The Church Committee discovered</a> CIA plots that were known by presidents; they discovered some that were not. None was known by Congress. The very idea that <a href="https://nsarchive2.gwu.edu/NSAEBB/NSAEBB222/">intelligence agencies could plot overthrowing or murdering foreign leaders</a> without congressional oversight <a href="https://constitutioncenter.org/blog/looking-back-at-the-church-committee">flabbergasted lawmakers</a>. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/294435/original/file-20190926-51414-oyh6cv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/294435/original/file-20190926-51414-oyh6cv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=405&fit=crop&dpr=1 600w, https://images.theconversation.com/files/294435/original/file-20190926-51414-oyh6cv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=405&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/294435/original/file-20190926-51414-oyh6cv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=405&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/294435/original/file-20190926-51414-oyh6cv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=509&fit=crop&dpr=1 754w, https://images.theconversation.com/files/294435/original/file-20190926-51414-oyh6cv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=509&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/294435/original/file-20190926-51414-oyh6cv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=509&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A meeting of the Church Committee, 1975.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Watchf-AP-A-DC-USA-APHS454379-Senate-Intelligen-/838371c2f2ef4ef38cb8f7bfc4febe49/2/0">AP Photo/Henry Griffin</a></span>
</figcaption>
</figure>
<h2>Keeping Congress informed</h2>
<p>The Church Committee and <a href="https://www.cia.gov/library/center-for-the-study-of-intelligence/csi-publications/csi-studies/studies/winter98_99/art07.html">its sister committee in the House</a> recommended a major reform: the creation of <a href="https://www.cia.gov/news-information/featured-story-archive/2011-featured-story-archive/cia-and-congress-hpsci.html">House</a> and <a href="https://www.senate.gov/artandhistory/history/common/investigations/pdf/ChurchCommittee_SRes400_SSCI.pdf">Senate Intelligence Committees</a> that would have oversight over intelligence agency activities. </p>
<p>These oversight committees were to be <a href="https://www.senate.gov/artandhistory/history/common/investigations/ChurchCommittee.htm">kept fully and currently informed by the intelligence agencies</a>. Nothing was to be withheld from Congress. </p>
<p>The notion that President Trump could force a Ukrainian government investigation of Joe Biden, and that this would be withheld from the House Intelligence Committee, directly contradicts the <a href="https://www.belfercenter.org/publication/confrontation-or-collaboration-congress-and-intelligence-community">imperative of congressional oversight</a> established by Congress in the late 1970s.</p>
<p>In the 1980s, the House Intelligence Committee faced one of its greatest challenges – <a href="https://www.brown.edu/Research/Understanding_the_Iran_Contra_Affair/iran-contra-affairs.php">the Iran-Contra affair</a>. President Reagan had kept secret from the committee that he had approved arms-for-hostage deals with Iran and used the proceeds for resupplying arms to the Contras, who were opponents of the Sandinista regime in Nicaragua. </p>
<p>These covert measures fulfilled some of Reagan’s major foreign policy goals. They were not matters of <a href="https://www.nytimes.com/2019/09/25/us/politics/donald-trump-impeachment-probe.html">personal political benefit for the president, as the Ukraine affair represents with Trump</a>. When the scandal broke from news about hostage-trading and about a plane crash in the Contra resupply operation, <a href="https://archive.org/stream/reportofcongress87unit#page/n7/mode/2up">the House formed an Iran-Contra investigating committee</a>. I was special deputy chief counsel of that committee, which was a select committee drawn in part from the House Intelligence Committee. </p>
<p>The Iran-Contra initiatives, although <a href="https://www.pbs.org/wgbh/americanexperience/features/reagan-iran/">led by Oliver North</a> of the national security staff, also relied on civilians to carry out plans, not unlike Rudy Giuliani. These were <a href="https://www.chicagotribune.com/news/ct-xpm-1988-03-21-8803020354-story.html">Richard Secord, with a military background, and Albert Hakim</a>, an accountant who spoke fluent Persian. </p>
<p>Such private figures have enormous power by virtue of their connection to the White House while simultaneously being exempt from routine public sector oversight by congressional intelligence committees.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/294436/original/file-20190926-51457-4bss88.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/294436/original/file-20190926-51457-4bss88.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=397&fit=crop&dpr=1 600w, https://images.theconversation.com/files/294436/original/file-20190926-51457-4bss88.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=397&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/294436/original/file-20190926-51457-4bss88.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=397&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/294436/original/file-20190926-51457-4bss88.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=499&fit=crop&dpr=1 754w, https://images.theconversation.com/files/294436/original/file-20190926-51457-4bss88.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=499&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/294436/original/file-20190926-51457-4bss88.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=499&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Donald Regan, President Reagan’s chief of staff, testifies before the Iran-Contra Committee in 1987.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Watchf-AP-A-DC-USA-APHS315187-Iran-Contra-Regan-1987/d987988c38d7479d9345cddf4375677d/19/0">AP Photo/Lana Harris</a></span>
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</figure>
<h2>Scrutiny grows</h2>
<p>After <a href="https://www.britannica.com/event/September-11-attacks">9/11, when al-Qaida terrorists destroyed the World Trade Center</a>, the CIA and President George W. Bush came under congressional scrutiny for how much <a href="https://www.politico.com/magazine/story/2015/11/cia-directors-documentary-911-bush-213353">they had known in advance – and ignored</a>. </p>
<p>Initially, they were reluctant to divulge what they knew, much like Trump at first fought oversight about his talks with Zelenskiy. </p>
<p>But eventually it came out that <a href="https://web.archive.org/web/20110429015452/http://archives.cnn.com/2002/ALLPOLITICS/05/19/bush.decision.911.cnna/">President Bush’s daily briefing from the intelligence community had warned</a> of plots to crash airplanes into buildings.</p>
<p>In 2002 came <a href="https://www.newsweek.com/2015/05/29/dick-cheneys-biggest-lie-333097.html">what many consider</a> one of the greatest abuses of intelligence. President Bush and Vice President Richard Cheney <a href="https://www.npr.org/templates/story/story.php?storyId=5166040">bent the CIA’s intelligence reporting to support a United States invasion</a> of Iraq. Internally, the CIA knew its intelligence was extremely weak about whether Iraq had weapons of mass destruction.</p>
<p>But the CIA served Bush and Cheney and made the public case to invade Iraq. Only after the war was over could the House Intelligence Committee penetrate the secretiveness of the CIA and find out the case for the Iraq war was built on foundations like the <a href="https://www.theguardian.com/world/2011/feb/15/curveball-iraqi-fantasist-cia-saddam">extremely dubious tales of the informant known as “Curveball</a>.” </p>
<h2>Presidential accountability</h2>
<p>What can be learned from history about the Ukraine scandal? </p>
<p>One lesson is the enormous struggle Congress in general, and the House Intelligence Committee in particular, has waged to exercise democratic accountability over presidential actions. That accountability is made impossible when private citizens – Richard Secord, Albert Hakim, Rudy Giuliani – are used by presidents to carry out foreign affairs.</p>
<p>Another lesson is the power of the CIA to withhold from Congress what it knows would embarrass the president. </p>
<p>And yet another lesson is the disastrous foreign affairs repercussions when the intelligence system is abused by presidents. </p>
<p>The Ukraine affair is the latest intelligence crisis in the troubled control of foreign affairs by the representatives of the American public.</p>
<p>[ <em>Like what you’ve read? Want more?</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=likethis">Sign up for The Conversation’s daily newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/124248/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charles Tiefer does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A former congressional staffer says withholding damning evidence from Congress and using civilians to carry out presidential or intelligence agency agendas links the Ukraine crisis to other scandals.Charles Tiefer, Professor of Law, University of BaltimoreLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1241462019-09-25T20:52:20Z2019-09-25T20:52:20ZTrump, Ukraine and a whistleblower: Ever since 1796, Congress has struggled to keep presidents in check<p>George Washington, hero of the American Revolution and the country’s first president, in 1796 <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/upitt20&div=59&id=&page=">withheld documents</a> the House of Representatives had requested from him regarding treaty negotiations with France. </p>
<p>Washington thought that giving the House <a href="https://www.everycrsreport.com/reports/RL30966.html">papers respecting a negotiation with a foreign power would be to establish a dangerous precedent.</a> </p>
<p>Washington’s reluctance to hand over these documents has <a href="https://www.justice.gov/file/23246/download">echoed through time</a>, in conflicts between Congress and Presidents Monroe, Jefferson, Adams all the way to Presidents Coolidge, Kennedy, Nixon and Reagan, among others. For the most part, members of Congress still must rely on the president and his administration for <a href="https://www.jstor.org/stable/23056912?seq=1#page_scan_tab_contents">information</a> in the areas of foreign relations and intelligence. </p>
<p>In the latest version of that long-running tension between Congress and the president over power, <a href="https://www.dni.gov/index.php/newsroom/press-releases/item/2046-statement-by-acting-director-of-national-intelligence-joseph-maguire">Acting Director of National Intelligence Joseph Maguire</a> appeared before the House Intelligence Committee on September 26. </p>
<p>The testimony is part of a <a href="https://www.washingtonpost.com/politics/2019/09/24/full-trump-ukraine-timeline-now/">chain of events</a> that began in mid-August of 2019 when an anonymous whistleblower filed a complaint with the inspector general for the intelligence community, who is <a href="https://www.law.cornell.edu/uscode/text/50/3033">tasked by Congress</a> to identify problems in the national intelligence agencies. The complaint related to reports that President Trump pressured Ukraine to investigate former Vice President Joe Biden and his family. The developing conflict between Trump and Congress has involved, among other aspects, a struggle over who can have access to crucial documents.</p>
<p>The Intelligence Committee will no doubt use Maguire’s testimony as a preliminary step in the formal impeachment inquiry <a href="https://www.nbcnews.com/politics/trump-impeachment-inquiry/pelosi-announce-formal-impeachment-inquiry-trump-n1058251">announced</a> by House Speaker Nancy Pelosi, a Democrat, on Tuesday.</p>
<p>Questions about the degree to which the <a href="https://theconversation.com/trump-vs-congress-the-emergency-declaration-should-not-be-resolved-in-court-112118">legislative and executive branches of the U.S. government should share power</a> have arisen throughout the nation’s history. While a simple view of the American Constitution revolves around the idea that the federal government is divided into three coequal branches, this understanding is incomplete. </p>
<p>The Founders <a href="https://theconversation.com/separation-of-powers-an-invitation-to-struggle-110476">struggled with problems related to the separation of powers</a>. The text of the Constitution, combined with subsequent legal analysis, shows tension between a desire to separate the branches and the need to integrate the federal government’s core functions. </p>
<p>Foreign relations and national security issues like those underlying the Ukraine conflict only exacerbate this tension.</p>
<h2>President’s broad authority</h2>
<p><a href="https://www.reuters.com/article/us-usa-trump-whistleblower-text-idUSKBN1W935Q">Pelosi’s announcement</a> relied heavily on references to the U.S. Constitution. At one point, she said, “Our republic endures because of the wisdom of our Constitution enshrined in three coequal branches of government serving as checks and balances on each other.” </p>
<p>Yet, what exactly does the Constitution say about the relationship among these three branches?</p>
<p><a href="https://caselaw.findlaw.com/us-supreme-court/539/396.html">Over time,</a> the Constitution’s language has been interpreted to grant the president <a href="https://www.cfr.org/backgrounder/us-foreign-policy-powers-congress-and-president">broad authority</a> in the conduct of foreign affairs. Many recognize <a href="https://doi.org/10.1007/BF02810961">presidential power is greatest</a> when the president directs foreign policy. </p>
<p>The president’s broad power is partly by design. Imagine if the president had to publicly broadcast his strategy and build a legislative coalition every single time he communicated with a foreign leader. </p>
<p>And part of the president’s power is a result of the accumulation of laws granting policy authority to the executive branch over time. </p>
<p>Regardless, there is no question that the Founders intended for members of Congress to exercise oversight of presidential conduct in foreign policy. In fact, Congress <a href="https://www.justice.gov/file/23246/download">first established</a> a congressional committee to request executive branch documents relating to foreign relations in 1792. </p>
<p>Yet then, as now, lawmakers struggled to obtain the requested information. </p>
<h2>Oversight system’s weaknesses</h2>
<p>Because voters in contemporary politics reward or punish the president for issues that arise in foreign relations, presidents have a <a href="https://doi.org/10.1017/S0022381607080061">reason to control</a> the narrative when it comes to national security. </p>
<p>Congress often has little incentive – or ability – to do much about it. There is waning congressional <a href="https://press.princeton.edu/titles/10514.html">interest</a> in oversight of foreign policy. Reelection concerns encourage members of Congress to focus their energies on domestic affairs and constituent service. </p>
<p>When legislators do get involved in foreign policy, they are often in a reactive position. Because of the president’s constitutional freedom to initiate contact with foreign powers, the <a href="https://academic.oup.com/jleo/article-abstract/15/1/132/827394">president has an advantage</a> over Congress. </p>
<p>Furthermore, the <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/ajps.12066">nature of the oversight system</a> can hinder legislators’ responses to presidential action. It takes time and resources to coordinate a response, not to mention agreement among a majority of members of Congress.</p>
<h2>What’s old is new again</h2>
<p>So what makes the crisis involving Trump, Ukraine and the whistleblower different from other foreign policy power struggles between Congress and the executive branch? </p>
<p>Perhaps this is a Trump issue, not a foreign policy issue. More constituents are <a href="https://www.huffpost.com/entry/impeachment-summer-august-recess_n_5d6c3030e4b0cdfe0571f71f?guccounter=1">pressuring</a> their Democratic congressmen to pursue impeachment than ever before. This straightforward conflict may provide a <a href="https://fivethirtyeight.com/features/impeaching-trump-on-russia-was-unpopular-will-ukraine-be-different/">clear story</a> for Democrats to tell. </p>
<p>Yet, despite providing <a href="https://int.nyt.com/data/documenthelper/1848-unclassified-phone-call-transcript-Trump-Zelensky-Biden/249ed692ce978e413641/optimized/full.pdf#page=1">a written record of the call between Trump and Ukraine’s leader</a>, the president and his administration still control much of the information about the events. </p>
<p>And Congress has limited time and resources to force the executive branch to relinquish this information, particularly if Congress wishes to do so before the 2020 election. </p>
<p>While Congress can <a href="https://www.nytimes.com/2019/08/13/us/politics/trump-house-lawsuits.html">appeal to the courts</a> to compel disclosure of documents it needs in its investigation of the Ukraine affair, it is unclear whether the courts would do so. </p>
<p>Separation of powers issues and what is called the <a href="http://www.aulawreview.org/the-political-question-doctrines/">political question doctrine</a> – which says some disputes are too political in nature for the judiciary – makes courts reluctant to interfere in political fights between Congress and the president, particularly about national security.</p>
<p>The situation is further complicated by the fact that <a href="https://www.cnn.com/2019/09/25/politics/donald-trump-nancy-pelosi-impeachment/index.html">Republican support for Trump appears intact</a>, making coordination across the chambers of Congress quite difficult.</p>
<p>While the current battle between Trump and congressional Democrats is newsworthy, it is not entirely new. The fight for information over the president’s negotiations with foreign powers is an inevitable consequence of the U.S. constitutional system.</p>
<p>[ <em>Like what you’ve read? Want more?</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=likethis">Sign up for The Conversation’s daily newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/124146/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jennifer Selin has received funding for her research on Congress from the Dirksen Congressional Center and the Center for Effective Lawmaking. </span></em></p>The conflict between Congress and President Trump over his dealings with Ukraine’s president is just the latest version of a long-running struggle for power between the two branches of government.Jennifer Selin, Kinder Institute Assistant Professor of Constitutional Democracy, University of Missouri-ColumbiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1215552019-08-12T19:57:23Z2019-08-12T19:57:23ZFrom Richard Boyle and Witness K to media raids: it’s time whistleblowers had better protection<p>Never has the case for law reform to properly protect public-interest whistleblowers been so stark.</p>
<p>Today, the <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/FreedomofthePress">public hearings</a> into press freedom begin, following the “<a href="https://www.abc.net.au/news/2019-06-07/ita-buttrose-statement-in-full-on-afp-raids-on-abc/11189266">seismic</a>” raids on media organisations in early June.</p>
<p>A broader <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Environment_and_Communications/PressFreedom">Senate inquiry</a> into protecting public whistleblowing is hot on its heels. This builds on a <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Corporations_and_Financial_Services/WhistleblowerProtections/Report">2017 parliamentary inquiry</a>, which recommended reforms only partially implemented.</p>
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Read more:
<a href="https://theconversation.com/dutton-directive-gives-journalists-more-breathing-space-but-not-whistleblowers-121730">Dutton directive gives journalists more breathing space, but not whistleblowers</a>
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<p>Yesterday, a <a href="https://www.abc.net.au/news/2019-08-12/ato-whistleblower-richard-boyle-to-launch-crowdfunding-campaign/11387694">crowdfunding campaign</a> for Richard Boyle’s legal defence was launched. Boyle is charged with 66 offences for disclosing concerns about oppressive debt collection by the Australian Taxation Office in Adelaide.</p>
<p>What’s more, the unknown Australian Secret Intelligence Service agent “Witness K” last week <a href="https://www.theguardian.com/australia-news/2019/aug/06/witness-k-to-plead-guilty-in-timor-leste-spying-case-but-lawyer-to-fight-charges">pleaded guilty</a> to exposing secrets by revealing Australia bugged Timor Leste government buildings during treaty negotiations in 2004. </p>
<p>Witness K’s legal advisor, Bernard Collaery – still fighting his own charges – <a href="https://www.theguardian.com/australia-news/2019/aug/10/witness-k-and-the-outrageous-spy-scandal-that-failed-to-shame-australia">described the prosecution</a> as:</p>
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<p>a very determined push to hide dirty political linen […] under the guise of national security imperatives.</p>
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<p>The trouble is, Australian laws make it inevitable for whistleblowers to be charged whenever national security <em>might</em> be involved – even when, in theory, they’re intended to protect public interest whistleblowing.</p>
<h2>Most whistleblowers don’t go public</h2>
<p><a href="https://news.griffith.edu.au/2019/08/07/worlds-largest-whistleblowing-project-throws-weight-behind-reforms/">New research</a> – the world’s largest on whistleblowing – demonstrates the importance of whistleblower protection to public integrity and regulatory systems like never before.</p>
<p>Released last week, our <a href="http://www.whistlingwhiletheywork.edu.au/?p=1029">Clean As A Whistle</a> study reports on whistleblowing policies in 699 public and private sector organisations, and the experience of 17,778 employees in 46 of them. This includes 5,055 who raised concerns about wrongdoing, internally and outside their organisation.</p>
<p>The study confirms just how rare <em>public</em> whistleblowing is, even though whistleblowing <em>within</em> organisations is the lifeblood of integrity. In fact, whistleblowing is ranked as the single most important way wrongdoing is brought to light, leading to action or reform more than 60% of the time.</p>
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Read more:
<a href="https://theconversation.com/parliamentary-press-freedom-inquiry-letting-the-fox-guard-the-henhouse-119820">Parliamentary press freedom inquiry: letting the fox guard the henhouse</a>
</strong>
</em>
</p>
<hr>
<p>In our study, 98% of whistleblowers raised their concerns internally. Only 2% went outside their organisations in the first instance. Even when whistleblowers feel forced to go outside, it is rarely directly to the media. In fact,</p>
<ul>
<li>only 16% of reporters ever went to an external regulatory body</li>
<li>of the 20% of reporters who ever went public, 19% went to a union, professional association or industry body. Only 1% of whistleblowers ever went directly to a journalist, media organisation or public website.</li>
</ul>
<p>These data show there’s hardly a crisis of leaking and external disclosure of information in Australian institutions.</p>
<p>As our research highlights, Australia’s whistleblowing laws need many reforms to make protections real – including a properly resourced whistleblower protection authority. But reform of public disclosure rules is especially critical.</p>
<h2>The latest laws to protect whistleblowers don’t go far enough</h2>
<p>The government’s <a href="https://theconversation.com/its-a-new-era-for-australias-whistleblowers-in-the-private-sector-119596">latest improvements</a> to whistleblower protection laws, for the private sector, try to recognise the principle that whistleblowers should remain protected if they need to go public.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/its-a-new-era-for-australias-whistleblowers-in-the-private-sector-119596">It's a new era for Australia's whistleblowers – in the private sector</a>
</strong>
</em>
</p>
<hr>
<p>The improvements include a “three-tiered” approach to protect internal, regulatory and public disclosures. Pioneered in NSW, and expanded in the UK, this is now reflected in seven of Australia’s nine public sector whistleblowing laws, as well as amendments to the <a href="https://www.legislation.gov.au/Details/C2019C00216">Corporations Act</a>.</p>
<p><a href="https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_767_homepage.html">Legislation</a> from Western Australia uses a simple test to determine when public whistleblowing should be protected. Protection applies wherever an agency has refused to investigate, has not completed an investigation within six months, or has investigated but failed to recommend action. </p>
<p>But the equivalent federal law has been crippled by blanket prohibitions on certain types of information, especially anything connected with national security or “intelligence”, since inception in 2013.</p>
<p>Now, these <a href="https://theconversation.com/four-laws-that-need-urgent-reform-to-protect-both-national-security-and-press-freedom-118994">fundamental flaws</a> in our laws are embarrassing everyone from the AFP to the government itself, triggering criminal investigations and charges against whistleblowers, irrespective of the public interest.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/four-laws-that-need-urgent-reform-to-protect-both-national-security-and-press-freedom-118994">Four laws that need urgent reform to protect both national security and press freedom</a>
</strong>
</em>
</p>
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<h2>Punishment for revealing any intelligence information, any at all</h2>
<p>These flaws mean fraud, corruption or criminal behaviour in any activity vaguely touched by intelligence agency functions cannot be revealed to the public, even when the same disclosure about any other agency would be protected.</p>
<p>The key problem is section 41 of the <a href="https://www.legislation.gov.au/Details/C2019C00026">Public Interest Disclosure Act 2013</a> (PID Act). It says protection can never be given to someone who revealed “intelligence information” to the public. This is defined as anything which “has originated with, or has been received from, an intelligence agency”. </p>
<p>It doesn’t matter how grievous the wrongdoing was – or even that revealing it would not actually harm any security or intelligence interests. If it is connected in any way to the agency, the whistleblower will still be punished.</p>
<p>The same is true of the poorly-named exclusion of “inherently harmful information” from disclosure under sections 121 and 122 of the <a href="https://www.legislation.gov.au/Details/C2019C00043/Html/Volume_1">Criminal Code</a>. </p>
<p>Contrary to its name, the information excluded from whistleblower protection doesn’t necessarily need to be harmful. Instead, it refers to any information with security classification, or, like the PID act, any record “obtained by, or made by or on behalf of” an intelligence agency.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/explainer-what-are-the-media-companies-challenges-to-the-afp-raids-about-119382">Explainer: what are the media companies' challenges to the AFP raids about?</a>
</strong>
</em>
</p>
<hr>
<p>The inappropriateness of these blanket exclusions was vividly confirmed last week. <a href="https://www.smh.com.au/politics/federal/peter-dutton-orders-afp-to-lift-the-bar-for-investigating-journalists-ahead-of-major-inquiry-20190809-p52fos.html">Peter Dutton directed the AFP</a> to only investigate secrecy breaches by journalists when the case includes:</p>
<blockquote>
<p>a harm statement indicating the extent to which the disclosure is expected to significantly compromise Australia’s national security.</p>
</blockquote>
<p>But why is this “harm test” not already the basis of the law in the first place?</p>
<p>Unless we extend the protections applying to public whistleblowing, we cannot expect the public to take the rest of our whistleblowing regimes seriously. And the effect will be chilling on all reporting of wrongdoing on which public integrity daily depends.</p><img src="https://counter.theconversation.com/content/121555/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>A J Brown and his research team receives funding from the Australian Research Council and many other partner organisations including the Commonwealth Ombudsman and Australian Securities and Investments Commission (see <a href="http://www.whistlingwhiletheywork.edu.au">www.whistlingwhiletheywork.edu.au</a>). He is also a boardmember of Transparency International and Transparency International Australia, and was a member of the Commonwealth Government's Ministerial Expert Advisory Panel on Whistleblowing (2017-2019). </span></em></p>Australian laws make it inevitable for whistleblowers to be charged whenever national security might be involved, even when the information is in the public interest.A J Brown, Professor of Public Policy & Law, Centre for Governance & Public Policy, Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1123492019-03-18T10:49:24Z2019-03-18T10:49:24ZWhistleblowing: athletes shouldn’t have to choose between their careers and the truth<figure><img src="https://images.theconversation.com/files/263620/original/file-20190313-123551-1d196bk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">shutterstock</span></span></figcaption></figure><p>Athletes should not feel like they have to choose between their careers or telling the truth about doping in sport. Yet, our <a href="https://www.researchgate.net/publication/329580258_The_process_isn't_a_case_of_report_it_and_stop_Athletes'_lived_experience_of_whistleblowing_on_doping_in_sport">new research</a> shows that this is (too) often the reality for many involved in the sporting world. Telling the truth isn’t always rewarded. Instead, speaking up – whistleblowing – is too often followed by <a href="https://www.theguardian.com/sport/blog/2015/nov/15/anti-doping-whistleblowers-iaaf-wada">retribution</a>.</p>
<hr>
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<p><em>You can listen to more articles from The Conversation, narrated by Noa, <a href="https://theconversation.com/uk/topics/audio-narrated-99682">here</a>.</em></p>
<hr>
<p>Our new research shows that whistleblowing on doping in elite sport can (and does) come at a cost to the whistleblower. As we discovered, for both US and UK doping whistleblowers, coming forward with information requires ongoing personal sacrifice – emotional, financial and relational.</p>
<p>Contrary to common belief, whistleblowing on doping is generally not a simple matter of report and move on. Rather, it is a series of steps – each accompanied by complex decisions – that exist from the moment of witnessing the questionable behaviour to well beyond the act of actually whistleblowing. </p>
<p>We spoke to three people who had reported doping in elite sport to gather insights into their unique whistleblowing experiences. Collectively, their accounts stressed that whistleblowing is a process that is often accompanied by myriad consequences consequences for the whistleblower. </p>
<h2>The difficulties</h2>
<p><a href="https://theconversation.com/doping-why-some-athletes-are-reluctant-to-speak-out-79862">Previous research</a> shows that athletes are generally hesitant to report doping despite being opposed to personally using banned substances. As an athlete, do you report doping behaviour to protect the integrity of sport, or keep quiet to protect a fellow sportsperson’s career, reputation and well-being?</p>
<p>Most athletes avoid publicly consuming illegal substances or engaging with banned methods. So doping whistleblowers do not necessarily have direct evidence of a specific doping incident. Instead, they are often privy to a series of incidents or events that collectively equate to doping. </p>
<p>The (potential) whistleblower therefore has to connect the dots and determine that the act(s) has indeed broken anti-doping rules. This on its own is challenging, but then add in the possibility that the person actually breaking the doping rules is someone you have a relationship with – and the prospect of whistleblowing becomes that much more complex. </p>
<p>Once doping has been identified, the whistleblower has to determine how and to whom they are going to report doping. Who can they trust with the information? Also, do they want to voluntarily take responsibility for (likely) altering the career trajectory of the athlete who has doped? These are weighty questions – whistleblowing on doping is complicated. Yet, sportspeople are increasingly expected to do it through such channels as the World Anti-Doping Agency’s <a href="https://speakup.wada-ama.org/WebPages/Public/FrontPages/Default.aspx">Speak Up! Platform</a>.</p>
<h2>Support needed</h2>
<p>Our research shows that whistleblowing can and does have life-altering implications for whistleblowers. The emotional burden of knowing that you have potentially ended someone’s athletic career can weigh heavy. At the same time, voluntarily risking such things as your reputation, financial stability and athletic career is a daunting prospect. It’s not surprising then that some athletes are <a href="https://theconversation.com/doping-why-some-athletes-are-reluctant-to-speak-out-79862">reluctant to speak out</a>. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/263621/original/file-20190313-123554-161mhrn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/263621/original/file-20190313-123554-161mhrn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/263621/original/file-20190313-123554-161mhrn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/263621/original/file-20190313-123554-161mhrn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/263621/original/file-20190313-123554-161mhrn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/263621/original/file-20190313-123554-161mhrn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/263621/original/file-20190313-123554-161mhrn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">It must be easier for athletes to speak out, without fearing reprisals.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
</figcaption>
</figure>
<p>It is clear that further support is needed to enable more people to report doping in sport. For this to happen, whistleblowers need practical and emotional support at every step in the whistleblowing journey. Evidence-based whistleblowing policies –- with explicit protections for whistleblowers and clear guidelines on when and how to report – are a key starting point for this and should be implemented and enforced. And while anonymous reporting hotlines like the World Anti-Doping Agency’s Speak Up! platform and accompanying <a href="https://www.wada-ama.org/sites/default/files/whistleblowingprogram_policy_procedure_en.pdf">Whistleblower programme</a> are a huge step in the right direction, research has not kept pace with these advances in policy and practice</p>
<p>Whistleblower education must also be provided, signposting people to available whistleblowing platforms and how to use them – as well as informing them about their rights as whistleblowers. An independent person – such as an ombudsman – to contact for advice and support should also be offered. Providing a sport ombudsman was listed as a “priority recommendation” in the 2017 Duty of Care in Sport <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/610130/Duty_of_Care_Review_-_April_2017__2.pdf">Report</a> regarding the handling of general welfare issues in UK sport. We suggest an ombudsman should be provided to support doping whistleblowers specifically.</p>
<p>The athlete voice is getting <a href="https://www.bbc.com/sport/athletics/47225647">louder</a> – with athletes rallying together and demanding a say in how global sport is run. Yet, it seems the current doping whistleblowing culture is more likely to deter athletes from speaking up than encourage them. But on the positive side, athletes also hold the key to understanding what changes need to be made to shift this culture towards one that empowers whistleblowers to come forward – which will ultimately help to protect the integrity of sport.</p><img src="https://counter.theconversation.com/content/112349/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kelsey Erickson received funding from the World Anti-Doping Agency to conduct this research. </span></em></p><p class="fine-print"><em><span>Susan Backhouse received funding from the World Anti-Doping Agency to conduct this research.</span></em></p>Whistleblowing on doping can and does have life-altering implications for athletes – new research.Kelsey Erickson, Research Fellow in Anti-Doping, Leeds Beckett UniversitySusan Backhouse, Director of Research and Professor of Psychology and Behavioural Nutrition, Leeds Beckett UniversityLicensed as Creative Commons – attribution, no derivatives.