CSIRO Misleads the Senate. 4.
Letter to CSIRO Board of Directors Shows that CSIRO Deceived the Senate about the Complaint of at least One Whistleblower.
CSIRO Terminated Every Employee that Complained of Criminal or Civil Breaches of the Law and Retained Every Employee Complained About
In the Senate Estimates hearings of 28 May 2012, CSIRO CEO Megan Clark defended the national science agency against claims of a “culture” of workplace bullying. She said that CSIRO “did not have a problem” with workplace bullying.
However, it now appears that the problem of workplace bullying may have been only one part of a larger culture within CSIRO of generally ignoring the law.
In written answers to Senate Estimates questions on notice BI-144 and BI-145 (31 July 2012), CSIRO formally informed the Senate that, since 2007:
· CSIRO retrenched every single employee who formally complained of criminal or civil breaches of the law.
· By contrast, CSIRO has retained every single employee whose actions were alleged to be illegal– they are still working at CSIRO to this day.
One of the employees who lodged a whistleblower complaint of criminal / civil breaches of the law has now released a letter that was sent to the CSIRO board of directors.
The employee is referred to in CSIRO’s answer to question BI-144 as “Employee B”. The letter was sent to the CSIRO directors on 14 August 2008.
CSIRO says in its answer to BI-144 that this letter:
“Refer[red] to [an] earlier complaint lodged under the CSIRO Whistleblower Scheme in June 2007 and concern as to the progress of the investigation.”
However, that is not correct.
The letter alleged commercial and criminal breaches of the law on the part of certain CSIRO middle managers and an outright refusal by CSIRO senior management to investigate the allegations or report them to appropriate law-enforcement authorities.
The letter comprised a legal assessment of the evidence presented in the whistleblower case. The assessment was carried out by a reputable Melbourne law firm and included the following statements:
Summary of the Complaint
“The complainant makes wide-ranging allegations, which include:
1) Numerous breaches of applicable laws and legal obligations on the part of certain members of the management team at the CSIRO Division of [redacted] in their dealings regarding the spin-off company [redacted]. The allegations include breaches of the Corporations Act 2001, the Trade Practices Act 1974, the Commonwealth Authorities and Companies Act 1997, and the Occupational Health and Safety Acts, including the Commonwealth (1991) and the Victorian Acts (2004). Breaches of legal agreements are also alleged with the commercial partner, [redacted], a stock-exchange listed company.” …
The Scope of the Whistleblower Investigation …
“At the end of February 2008, Dr [whistleblower investigator] provided Dr [whistleblower] with a document that “distilled”and summarised his allegations. In accordance with the “distilled” allegations, the following matters were excluded from the investigation:
1. All alleged criminal and civil breaches of the Corporations Act …
2. All allegations regarding the “commercial”merits of decisions made by certain management figures …” [which included all complaints of criminal and commercial illegalities]
Review of the Complaint and the Response
“The evidence presented by [the complainant] in his complaint is detailed and extensive. A court would need to test the evidence and hear evidence from all relevant parties, however I am satisfied that prima facie, there is a case for the allegations, which would, in my opinion, be made out in the absence of contradictory evidence”.
“I am satisfied that there are grounds for his allegations of breaches of applicable laws and contractual obligations. I accept his contention that there may have been criminal breaches of the Corporations Act 2001 and the Commonwealth Authorities and Companies Act 1997. There also appear to have been prima facie breaches of the aformentioned Acts, as well as the Trade Practices Act 1974. Serious questions are raised regarding commercial practices at [redacted].” …
“It does seem to me that the allegations as to commercial decisions and the implications of those decisions ought to be investigated. Failure to investigate these allegations will … exclude from the Whistleblower process, potentially serious breaches of … various pieces of commercial legislation.” …
“It does not seem to me that allegations of criminal conduct should be excluded from the investigation, especially since the CSIRO Whistleblower policy is specifically intended to address ‘criminal activity’ and thereby improve corporate governance (both ‘in perception and reality’). …
“The failure to conduct such an investigation [of the excluded sections] appears to be contrary to the Whistleblower scheme and raises questions about the intentions of [the] persons [involved]”.
Despite being provided with this legal assessment, the board of directors of CSIRO refused to take action and declined to institute a proper investigation of the alleged criminal and civil breaches of the law that had been raised, or to report them to a relevant law-enforcement authority.
Instead, the above whistleblower was retrenched within months of sending the CSIRO board of directors that letter.
The reason given by CSIRO for the retrenchment in their answer to BI-144 is that:
“CSIRO no longer required the job to be performed because of changes in operational requirements”.
However, CSIRO, in fact, simultaneously hired the employee’s temporary replacement to continue his role at CSIRO.
To this day, the employee’s allegations of criminal and commercial breaches of the law have never been properly investigated by CSIRO or referred by CSIRO to relevant law-enforcement authorities. Commonwealth agencies and authorities like CSIRO, are formally obliged to report suspected criminal conduct to the relevant authorities. CSIRO has not done so in this case.
In November 2010, the Minister of Finance and Deregulation, Penny Wong, ordered an investigation of the allegations of breaches of the Commonwealth Authorities and Companies Act. That investigation is ongoing.
A copy of the above legal assessment, which was sent to the CSIRO board of directors on 14 August 2008, can be found here.
We ask you to decide if this letter merely expresses “concern as to the progress of the investigation”as stated by CSIRO in its answers to the Senate?
The letter from Minister Penny Wong instructing an investigation of these matters can be found here.
CSIRO’s answers to the Senate Estimates questions BI-144 and BI-145 can be found at: http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=economics_ctte/estimates/bud_1213/DIISRTE/index.htm).