Killing chickens to show monkeys: why it’s vital to protect whistleblowers, not persecute them

Lawyer and Lendlease tax-fraud whistleblower Anthony Watson writes on Australia’s whistleblower laws and why reform is vital to protect those who expose wrongdoing from having to choose between their careers and silence.

Disclosing serious failings in the public interest must not remain the preserve of those citizens who are prepared to sacrifice their personal lives and those of their relatives, as has happened too often in the past.   Sounding the alarm must become a normal reflex of every responsible citizen who has become aware of serious threats in the public interest. 

                   ~Resolution 2300 (2019) of the Parliamentary Assembly of the Council of Europe, para 3

On November 30, Attorney General Mark Dreyfus introduced the Public Interest Disclosure Amendment (Review) Bill 2022 with the stated aims of increasing protection for disclosers, providing greater flexibility in how disclosures are handled, and enhancing oversight of the scheme by the Ombudsman.

A comprehensive review of all whistleblower laws is slated to occur next year.

Against this background, the cases of a black woman in 1970s America, and the Chinese doctor who first observed and warned against Covid, are enlightening.

For those two cases bring to life otherwise esoteric questions about whistleblower laws: Who is to be protected, under what circumstances, and from when? How should the inequality of financial arms be handled? 

Invariably, whistleblowers report the wrongdoing of big companies and governments, who have enormous resources. How do we ensure the reported wrongdoing is investigated and acted upon, and not swept under the carpet? Should we have a Whistleblower Authority or other enforcement body?

Also in November, Griffith University, the Human Rights Law Centre and Transparency International Australia released a report setting out the 12 key areas of reform needed to place Australia back on the road to international best practice. That Report can be found here: Roadmap 

Mississippi race whistleblower Bessie Burnley Givhan

Bessie Givhan was a black public-school teacher. For eight years prior to her dismissal, Bessie taught at the Western Line Consolidated School in Mississippi, in a district marked by a turbulent history of racial discrimination. In 1971, Bessie’s contract was terminated, at a time when the school district was in the throes of court-ordered desegregation.

Bessie’s competence as a teacher was never in question and had nothing to do with her dismissal. Rather, her employers were distressed by Bessie’s complaints, made to Principal Leach, her immediate superior, about school practices she believed were unlawful and which she felt were harming the students. Bessie complained that the school administration were reserving administrative positions for white staff, and that black youths were being fenced out of the more desirable jobs given to their white peers.

Bessie took her case to court, arguing that her communications were protected by the First Amendment (Freedom of Speech).

Both the lower courts found the School’s decision to terminate Bessie was motivated primarily by the fact that Bessie had made the complaints. The District Court found that the School’s motivation “…was almost entirely a desire to rid themselves of a vocal critic of the district’s policies and practices which were capable of interpretation as embodying racial discrimination.”

The paradox of not going public

The District Court found that the School had violated Bessie’s First Amendment rights. But the Fifth Circuit held that Bessie’s communications, which would otherwise be protected by the First Amendment, necessarily lost that protection because they were expressed directly to the principal rather than in a public forum: “Neither a teacher nor a citizen has a constitutional right to single out a public employee to serve as the audience for his or her privately expressed views…”. 

Because Bessie did not seek to “disseminate her views publicly” the First Amendment did not protect her from a retaliatory dismissal.

The Fifth Circuit thus turned on its head the usual, and usually thought proper, order of complaint presentation. Surely it is better to assure protection for an employee raising an issue with internal channels, rather than force the employee to resort first to a public forum in order to ensure such protection.  

The Supreme Court overturned the Fifth Circuit. Justice Rehnquist remarked; “The First Amendment forbids abridgement of the ‘freedom of speech’. Neither the amendment itself nor our decisions indicate that this freedom is lost to the public employee who arranges to communicate privately with his employer rather than to spread his views before the public.”

Although she had not worked for the twelve years it took her to win her case, Bessie returned to the School to teach.

The case of China’s Covid whistleblower Dr Li Wenliang

In December 2019, Dr Li Wenliang, an ophthalmologist at Wuhan Central Hospital, observed several patients with SARS-like symptoms. Li warned colleagues and friends about what he had observed on a closed social media platform.  

Word got out, and Li was taken to the Public Security Bureau in Wuhan, accused of spreading false rumours and disturbing the public order. Li was forced to sign a letter of reprimand. He confessed: As a Communist Party member, I lacked political sensitivity. I deeply regret the impact this has caused.

On January 1, 2020, China Central Television broadcast that the Wuhan Bureau of Public Security had identified and punished eight people, including Li, who spread untrue information about a virus. The item stated that ‘eight rumour spreaders’ had disturbed the social order and caused damaging social consequences. 

It instructed viewers not to believe or spread rumours. And it advised that the rumour spreaders had been punished. In China, this tactic is called ‘killing chickens to show monkeys’ (shaji geihoukan). The authorities silenced doctors and others for raising red flags, and played down the danger to the public.

Meanwhile, the virus spread. Thailand reported the first confirmed case outside China on January 13. On January 22, the eleven million people of Wuhan were placed in draconian lockdown.  

In an interview with the New York Times, Dr Li said he felt aggrieved by the police actions. “If the officials had disclosed information about the epidemic earlier, I think it would have been a lot better. There should be more openness and transparency.”

Li died from covid. He was declared dead at 9.30pm February 6. The anger on social media was so great that government officials intervened, and the Wuhan Hospital reported Li was not dead. Then Li was declared dead a second time on February 7.

Punishment by partiality: Lendlease white-collars stick to the right side of the law no matter what

Australia’s Whistleblower laws

The cases of Bessie Givhan and Dr Li Wenliang highlight the importance of whistleblowing and the importance of protecting whistleblowers. As a society we should insist upon whistleblower protection and that whistleblowers’ messages are heeded and acted upon.

The principal elements for consideration are threefold:

• The scope of protection against detrimental conduct – who and what is covered, at what stage, and on what basis.  
• The effectiveness and practicality of protection against detrimental conduct: covering issues such as the inequality of arms between the whistleblower and the wrongdoer, the expense and costs-risk of pursuing a claim, and whether we should have a Whistleblower Authority or other enforcement body, rather than leaving enforcement only to the whistleblower.
• The adequacy of measures to ensure that those who receive the protected disclosures deal with the substance of the disclosure and address the underlying wrongdoing.

Bessie Givhan’s case took twelve years and yet the reason for her dismissal (the detrimental conduct) was not disputed. Usually, a whistleblower is attacked personally, her motives – which may be mixed – are queried, and the reason for her dismissal challenged.

Killing chickens

One goal of disparaging a whistleblower is to deter others from speaking up (“killing chickens to show monkeys”). The other equally important goal is to intimidate and humiliate the whistleblower.  When a whistleblower calls out the behaviour of a big corporate, the corporate responds by questioning the psychological stability and moral character of the whistleblower.

C. Fred Alford, in his book Whistleblowers: Broken Lives and Organisational Power, calls this the “nuts and sluts” strategy. He writes: “The key organisational strategy is to transform an act of whistleblowing from an issue of policy and principle to an act of private disobedience and psychological disturbance.”

We have seen from the Hayne Royal Commission and the Inquiries and commissions into the casinos, behaviours that value money over fairness, and schemes that privilege power over justice. All of these entities espoused (and still espouse) the shared values of integrity, fairness, transparency, respect and openness.

But those terms are piffle. The tie that binds the individuals effecting the misconduct is the private accumulation of wealth and privilege.  And that is a bond not easily broken. As Royal Commissioner Hayne observed in his Final Report:  First, in almost every case, the conduct in issue was driven not only by the relevant entity’s pursuit of profit but also by individuals’ pursuit of gain, whether in the form of remuneration for the individual or profit for the individual’s business.

Those who observe wrongdoing and who want to speak up should not have to choose between their careers and silence.