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Whistleblowers, and governments, need more protection

Dr David Solomon retired last year as contributing editor of The Courier-Mail, Brisbane. He was chair of EARC in 1992-3; long after EARC presented its whistleblower report. He is an Adjunct Professor in the School of Political Science and International Studies at the University of Queensland. Thankyou David and The Democratic Audit of Australia for permission to republish this important report.

by David Solomon

Queenslanders in 2005 discovered that their public health system was chronically underfunded, poorly run and in some cases it provided dangerous and even deadly services for those who turned to its hospitals for attention. Two Commissions of Inquiry (the first shut because of the apprehended bias of its Commissioners) and a wide-ranging administrative inquiry were instituted after a whistleblower nurse, Ms Toni Hoffman, told her local MP about the disastrous surgical exploits of an overseas-trained doctor, Dr Jayant Patel, who had become infamously known to some of his colleagues as Dr Death.

The second Commissioner, retired Court of Appeal Justice Geoff Davies QC, published his final report at the end of November 2005. In the course of it, he said the people of Queensland owed a great deal to Ms Hoffman, ‘whose decision to speak to her local Member of Parliament about her concerns regarding the activities of Dr Patel and the apparent threat he represented, led to his exposure and this Inquiry’(Queensland Pubic Hospitals Commission of Inquiry, para. 6.486, p. 466). He continued, ‘Whether Ms Hoffman realised it or not, her disclosure to Mr Messenger MP was not protected by the Whistleblower Protection Act 1994. The fact that Ms Hoffman had to reveal her concerns to Mr Messenger MP, to have those concerns dealt with, and that the disclosure was not protected, reveals the failure of the current system of protecting whistleblowers.’ (ibid, para. 6.486, p. 467. The Commissioner does not deal with the issue of whether Ms Hoffman might have been protected in any way by parliamentary privilege, given that the information she provided may have been intended for use in the Queensland Parliament, and was so used. This is not a settled legal issue, though there is a judgment in the Queensland Supreme Court suggesting privilege is not attracted. See Harry Evans, Odgers’ Australian Senate Practice, 2004, 11th edition, Canberra, pp. 45-6)

In the aftermath of the report, most attention focussed on what was wrong with the health system, who was to blame (and to be punished) and how the system could be fixed. The issue of whistleblowing attracted little attention. But that system too had failed the test to which it had been put: Ms Hoffman’s first complaints were made directly to Queensland Health, as the law required. But her complaints received scant attention. In his report, Commissioner Davies described and discussed the present system of whistleblower protection in Queensland and made recommendations for its reform and improvement. It appears from the Commissioner’s report that this discussion and the proposals he put forward were based primarily on a submission to his inquiry by the Queensland Ombudsman. If adopted the Ombudsman would be given an important continuing role in the supervision and administration of the whistleblower protection regime in Queensland.

The legislation
Queensland was the first Australian jurisdiction to introduce legislation to protect whistleblowers. Following the report of the Fitzgerald Commission of Inquiry in 1989, and in response to its recommendations, the Parliament created the Electoral and Administrative Review Commission (EARC) and the Criminal Justice Commission (CJC). EARC was to inquire into the need for various legal, administrative and parliamentary reforms in Queensland and the CJC to supervise the reform of the Queensland Police Service and to have an ongoing role in monitoring complaints of official misconduct. In 1990 ‘interim’ legislation was enacted to provide protection to whistleblowers giving information or evidence to both EARC and the CJC. In 1991 EARC produce a report on the need for permanent legislation covering whistleblowers who disclose wrongdoing in the public sector, and to a limited extent, elsewhere. Previously the law in Queensland and elsewhere in Australia made it an offence to disclose official secrets or information acquired by a public servant by virtue of their office, though there were various common law, and sometimes statutory, protections for public servants who revealed, for example, criminal conduct.(See, Electoral and Administrative Review Commission, Report on Protection of Whitleblowers, October 1991, particularly chapter 3.) The EARC report summarised the countervailing interests that deserve appropriate recognition and protection in the design of a balanced system for encouraging and protecting whistleblowing that is in the public interest, in this way:

(a) The interests of the public in the exposure, investigation and correction of illegal or improper conduct, and dangers to public health and safety.

(b) The interests of the whistleblower are being protected from retaliation, and in seeing that proper action is taken on the whistleblowing disclosure.

(c) The interests of persons against whom allegations are made in good faith which turn out to be inaccurate, or, worse still, against whom false or misleading allegations are made. Most instances of whistleblowing will involve an allegation of personal impropriety, whether it be of conduct that is illegal, incompetent or negligent, against one or more persons. Such persons are liable to suffer not only damage to their personal and/or professional reputations, but also the stress of being subject to investigation.

(d) The interests of an organisation affected by a whistleblowing disclosure in not having its operations unduly disrupted, causing unwarranted interference with its pursuit of its business or administrative goals.’(ibid, p. 223.)

These competing interests are recognised in the legislation in Queensland and elsewhere. (See, Queensland Public Hospitals Commission of Inquiry, para. 6.487, p. 466 and footnote.)

What’s in it for government?
But there is a fifth interest that is not specifically acknowledged in the EARC report that is of crucial and critical importance: this is the political interest of the relevant government. Governments in the past tried to prevent whistleblowing by public servants, making it improper and even illegal for them to disclose official information without proper authority. They threatened public servants who broke the code of silence with sanctions affecting their continued employment or promotion, as well as the threat of punishment through the criminal courts. But there are times when public sector employees are prepared to take the risk, whether for essentially political reasons – as in the (secret) leaking of information in 1975 about the Loans Affair to the Opposition Deputy Leader – or because of genuinely held concerns about public health and safety - as was the case in Queensland in 2005 when Ms Hoffman complained first to the Health Department and then to her MP about the surgical incompetence of Dr Patel. These exercises in whistleblowing can do enormous political damage to a government and may be (as was the case in 1975) irreparable. Leaking or disclosure of official information is now far easier – and more common – than ever before, and technological changes have not made it easier to trace those responsible. The Australian Federal Police are frequently asked to investigate leaks from the Commonwealth Public Service but rarely find a culprit.

The prospective political damage a government may suffer from the actions of a whistleblower, and the fact that whistleblowers can normally find a ready audience or means of communicating their concerns, provide additional reasons for governments to make laws about whistleblowing that actually encourage whistleblowers to use the official system. The laws should also be structured in such a way as to ensure the system works – it should provide for a proper investigation of problems and contain mechanisms to guarantee that those that are detected are corrected. The system didn’t work in the Patel case because the Health Department was part of the problem. Its culture was such that Ms Hoffman was wasting her time raising her concerns with her superiors. Yet the Whistleblowers Protection Act 1994 makes it clear that the only body to which Ms Hoffman could have complained was Queensland Health.

As Commissioner Davies concluded, the Act needs to be changed. He adopted the submissions of the Queensland Ombudsman in recommending (ibid, paras 6.509-6.512, p. 472):

  1. That the Ombudsman be given an oversight role with respect to all public interest disclosures other than those involving official misconduct. The Ombudsman may investigate the complaint or refer it back to the relevant department for investigation, subject to monitoring by the Ombudsman.
  2. Anyone may make a public interest disclosure protected by the Act in cases involving danger to public health and safety, and negligent or improper management of public funds.
  3. There should be a scale of bodies to which complaints can be made. A complaint should first go to the relevant Department (subject to the role of the Ombudsman). If the disclosure is not resolved in 30 days, the matter can be disclosed to an MP. If the matter is still not resolved (to the satisfaction of the Ombudsman) after a further 30 days, the matter can be disclosed to the media.

In several respects this is an advance over the original EARC proposal. The relevant public sector entity – investigating a complaint about its own conduct or the conduct of one or more of its officers – will be forced to conduct a proper investigation, and do so very quickly. If it does not, it would risk intervention by the Ombudsman who would have power to take over the investigation, and, if not properly resolved, it could be made public. At present the reporting requirements that are supposed to ensure that whistleblower complaints are not ignored, are quite toothless. Who is to know if the Department has properly reported the matter in its next annual report, or whether it has dealt with the complaints in a proper way? The imposition of a time-scale, and the prospect that material provided by the whistleblower can be provided (while the whistleblower is still protected under the law against any recriminatory action) to the Opposition in Parliament or to the media, would be a further incentive for the public sector entity or department to act. Additionally there are several features of the original EARC model that were not legislated by the Goss Government that should now be reconsidered because they would greatly improve the whistleblower system. The first was EARC’s proposal that whistleblowers were entitled to protection if they reported any conduct that constituted an offence under Queensland law. The second is that where a whistleblower comes across conduct that is a ‘serious, specific and immediate danger to the health or safety of the public’ disclosure may be made to any person, including the media. The Parliamentary Committee that reviewed EARC’s report on whistleblowers objected to neither of these proposals.

It is in the interests of governments, as well as whistleblowers, that there be an effective system that allows people who become aware of serious problems within the public sector (in particular) to disclose them to an agency that will properly investigate them and, if the complaints are shown to be justified, have them rectified. Keeping the problems secret, and unresolved, is likely to be counter-productive.


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My sister

About 12 years or more ago, my sister worked in a Women's Refuge in the NT. The refuge was meant to assist women who have suffered domestic violence and needed somewhere to live, away from their abusive husbands - it was mostly used by Aboriginal women.

The refuge was run by the Salvation Army. My sister as a worker there, and acting management at times, became aware of the siphoning off of large funds toward the Salvo's, the use of the refuge car solely by the Salvation Army manager and wife, and, most importantly, the fact that the counselling was aimed at keeping the family together whatever the costs to the woman.

At some point, my sister's conscience could not allow her to accept that the management was acting ethically and morally in the interests of the clients at the refuge, and she became a whistleblower. She lost her job when she started to question the management and ended before the Industrial Relations tribunal.

With the help of a courageous public servant friend, we took the issue to the local press - which is the only reason the Salvo's ended up losing their contract for the refuge. It was so hard going against the Salvation Army and the enormous public goodwill that they have, and which they used to their extreme advantage in keeping embarrassing things confidential.

The whole experience shattered my sister and I'm sure that she would not have the courage, the conviction, or the energy to do the same again.

The thing is, most people can accept that in a privately owned company, the owner should be allowed to manage as he likes, and if you don't like it you leave (and tell everyone you know not to go near it). But in a company that accepts public monies or is funded by government (which uses taxpayer funds) people do have the interests of the public at heart and their conscience weighs heavily upon them if they know that the organisation is acting corruptly.

I believe that it is the people who are committed to social justice and have values of fairness and equality that have the hardest time with their conscience and find that their work eventually becomes intolerable.

My sister loved her job, loved the clientele but could not sit silently by while an already disadvantaged people were not correctly treated.

Constructive Destruction

I apologise if my comments cause pain to anyone who has been seriously hurt, either through whistle-blowing or suicide bombing.

Our society is such that some of its members act on the belief that whistle-blowing is essential for change, and some act on the belief that bombs are essential. Often, rather than evaluating the real immediate and long-term consequences of such actions, we are making judgments primarily based on where we sit.

Ross, assume Indonesia conquers Australia. A 20 year-old is raped by the occupation. Her 18 year-old brother straps a bomb to his chest, walks up to the local invading commander and blows himself up. Would you feel it insulting if he were called a real Aussie hero?

About two years ago, a colleague of mine in Queensland was advising me on private health insurance. He said if any of his children fell sick, he would take them to the public hospital, not a private one. He believed that the quality of care was very clearly better.

I’m not saying Queensland Health was anywhere near perfect, but that it was about average for a large, very complex organisation running a very stressful and difficult business. There is however, broad agreement that it has become worse, despite the huge sums pumped into it.

One immediate result of the whistle-blowing was a boiling over of vitriolic racism - the media hype about Dr. Patel (“Indian-trained surgeon”, “Cheap imports”) couldn’t have been anything else, since any half-competent journalist would have known that Dr Patel was hired on the basis of his American training and qualifications, and many would consider these more demanding than Australian qualifications.

No apologies needed

Hey Jay S, I'm not hurt, just rather surprised someone would make a comparison between the two categories. I found that comment rather distasteful really, perhaps using the currency of terrorist news for your writing. Your choice.

The answer from me re your hypothetical is No. I would consider such a person a bloody fool. He should strap the bomb on the other person and leave.

As to Queensland Health. There are distinct areas here, Jay. One is the staff that work in public hospitals. I have heard very little, if any, criticism of them in general and in fact most comments are that they knock themselves out trying to deal with what faces them daily. On that front the main issue really has been the employment and use of overseas trained doctors.

In particular Dr Patel, although there are others mentioned and no doubt others who have left suddenly and others that are still in the hospitals.

I clearly put the problem at Peter Beattie's feet as he has presided over the deterioration of our health service to such a degree that people have been killed on the table ( by Dr Patel). I would in no way describe that as anything other than vicious and ego driven.

Your comment about the racist vitriol. Again I must say I find such a comment rather odd. The problem that was raised was Dr Patel. His employment and that of who knows how many overseas trained doctors can only be described as fraudulent and he deserves every bit of vitriol he has got so far.

Other doctors too have been suspect because of his actions but what would you expect people to do? When the media is full of stories about untrained doctors from overseas being let loose in hospitals I would say that people would be rightly worried if they were treated by anyone not Australian in that climate. Unfortunate but reality. To classify such criticism as racist is simply moving the real target. Dr Patel, Beattie and his mates.

When is it permissible to refer to someone's background? It seems more and more to me that anything that non Australians don't like they brand as racist. It's a poor excuse.

Why What Happens to Whistleblowers Happens

Webdiary readers might like to read my lengthy review essay on whistleblowing, and the two books I review in it, to get a deeper understanding of why whistleblowers are treated in the ways in which they are.

By no means is this a comprehensive explanation, but it's been around for almost six years, and folks who have been subjected to workplace bullying, reprisals for whistleblowing, and similar (which are epidemic in Australian workplaces) have found this essay, and the books I review very clarifying and helpful.


Thank you, Mark, for your review. It's the quality of writing that I find I want to bookmark, and read several times.


Ross, I read recently that the USA has a Federal Department (or section thereof) whose sole purpose is to investigate the claims of whistleblowers in the federal bureaucracy. The plan is to get a staff lawyer to take a brief from the whistleblower and give a basic evaluation of whether the case was worthy of further investigation.

The story went on to say that under the present administration its operation has been stymied with the appointment of a Bush crony now nick-named "The Plumber" because he stops all leaks. Staff lawyers have been stopped from speaking to potential informants.

I'm sorry I can't be more specific as to where I found the article but I was struck by how easily an organisation set up to help and protect whistleblowers could itself be so politically manipulated that its own workers felt the need to go to the press.

I wonder

I have wondered from the start of this story what would have happened if Toni Hoffman's Local MP belonged to the ruling Labor Party. If I have the story correct, Toni tried several approaches to the hierarchy within the hospital through "appropriate channels" but without success. It was only on appraising Rod Messenger of her concerns that he was able to make a ruckus in parliament that gained traction in the media and the rest is history.

What path would a Labor MP have taken I wonder? Cetainly they would not have raised their concerns openly in parliament. It seems that, irrespective of the importance of the message, it might depend on who you tell and their capacity to do something about it that results in action.


Yes Ken, the whole saga has been a disgrace and still Beattie is planning an early election and expecting to win ( they probably will despite everything simply because there is no other choice. Who the hell would vote QLD Libs and Nats into power?). There should be a box on every election paper for the voter to tick "None of the above".

The CMC (for non QLDer's this is the supposed watchdog on government. Known locally as Beattie's clearing house) has even been accused today by Gordon Nuttall of depriving him of his rights. Unbelieveable really. He managed the Heath system while Patel was killing patients and Nuttall says it's himself that has suffered both the worst year of his life and been deprived of his rights.

I suspect one or two QLD Health's patients may have missed out on just a few of their rights under Nuttall's stewardship. Like, they are dead.

As you indicated it was only because Toni Hoffman approached a member of the Opposition that anything was exposed. Even then the National MP who exposed it for her was blasted by all in authority at the time. The secrecy and pressure on people to shut up is just too much.

Re your other comment. "The Plumber" I think is replicated in all government Agencies. Cover up is the first choice rather than exposing and fixing problems.

My own experience within a number of large organisations ( government ) is that such entities do document and legislate to make things look nice but the reality of how whistleblowers are generally treated is the opposite to what legislation exists.

How do you, for example, deal with the management tactic of isolating a worker, placing them in a location by themselves with little or nothing to do? That may sound a dream situation to some people but it truly is soul destroying and is a frequently used tactic. Also used while the worker is told it is for their protection etc. Bullshit, bullshit and so on.

For Dr Mark, I am about to read the pages you linked to as I find it an interesting topic, very much so. However I would have thought that the motive for treating whistleblowers as they have been was just fear. Fear that something will be exposed and get somebody "into trouble".

No doubt there are many aspects of the situation but that's it basically isn't it Mark?

Whistle blowers and suicide bombers

There are some eerie similarities between whistle blowers and suicide bombers.

Both make a loud noise. Both cause a lot of indiscriminate destruction. There is hope that what is destroyed will be rebuilt in a better form, but this does not happen – it only costs more. In both instances the individual is seriously maimed. Our (or at lest my) feelings for them are quite complex, and contain respect, annoyance and superiority.

My mother and her brother used to be heads of church institutions. At one point they became quite frustrated with church politics. My uncle left and sued the church. My mother continued working. When I asked her why, she said “Creating change from within is harder but more likely to be ultimately successful than throwing stones from outside.”


Dr Solomon has written a fairly obvious summary of whistleblower needs. Clearly what exists now does not protect whistleblowers at all and this is the problem really. That is that legislation cannot change the culture that exists in nearly every level of our society.

The first reaction of an organisation and it's management is to protect that organisation, and it's policies. Whistleblowers are seen by such people as "the enemy" regardless of whether the whistleblower is correct in their claims or not. Even when they are exactly right and justified it is a rare case indeed that they are given recognition for helping etc.

In public some recognition of what whistleblowers may achieve is given but in private they are regarded as poison.

In many cases the person blowing the whistle becomes the target rather than the problem identified. It is only rarely that whistleblowers are treated as normal people with a conscience. Of course there are some who take this line out of spite and in truth there is probably always some of this feeling in a whistleblower, mainly because by the time they do blow the whislte they will have tried informal approaches etc to avoid the spotlight themselves and become angry and frustrated.

Potential whistleblowers do not know what they face when they think about making their stand. It is a thankless task and usually results in the discrediting and ruin of the whistleblowers career, and personal life.

A common threat to whistleblowers is to ruin them financially by forcing them into a legal scenario which they cannot afford, financially or emotionally. Most do not survive this process and give up in fear.

To the Australian in the street whistleblowers are more than likely viewed as "dobbers" as is the want of weak cultures. This attitude is best seen amongst criminals and perhaps our heritage is partly responsible for that. The point I'm making here is that whistleblowers have either little or no support and suffer accordingly in a battle against superior finances and resources.

I can only thank those people who do the right thing and report issues when needed. Toni Hoffman had to put up with months of anguish, personal abuse, threatened with losing her career and more before anyone listened to her. In the end it was only because the issues she was reporting became public knowledge that anything was done.

Despite the enormous coverage the problems in QLD hospitals remain. Probably much more than pre Patel as Premier Beattie tries to paper over the yawning chasms in QLD Health and government's credibility.

I don't know what can be done to give whistleblowers and potential whistleblowers the support and resources to report their issues without vengeance. Perhaps a separate institution that cared for them etc would help but even such an organisation would be subject to human foibles. I despair for the integrity of the average worker in this country, I really do.

I must say to compare them with suicide bombers is inappropriate regardless of the situation. Such a comment I find rather insulting.

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