Bills Digest No. 102, 2017
PDF version [489KB]
Mary Anne Neilsen
Law and Bills Digest Section
4 May 2018
Contents
Purpose of the Bill
Structure of
the Bill
Background
Committee
consideration
Financial
implications
Statement of
Compatibility with Human Rights
Policy
position of non-government parties/independents
Position of
major interest groups
Key issues
and provisions
Concluding
comments
Date introduced: 7
December 2017
House: Senate
Portfolio: Treasury
Commencement: The
substantive provisions commence on 1 July 2018.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the Federal
Register of Legislation website.
All hyperlinks in this Bills Digest are correct as at
May 2018.
Purpose of the
Bill
The purpose of the Treasury Laws
Amendment (Enhancing Whistleblower Protections) Bill 2017 (the Bill) is
to:
- amend
the Corporations Act 2001 to consolidate
and broaden the whistleblower protection regime for the corporate and financial
sector
- amend
the Taxation Administration Act 1953 (TA Act) to create a whistleblower
protection regime for disclosures of breaches of tax laws and tax avoidance.
Structure
of the Bill
The Bill contains one Schedule consisting of three Parts:
- Part
1 amends the Corporations Act to strengthen and consolidate
whistleblower protections for the corporate and financial sector
- Part
2 amends the TA Act to create a whistleblower protection regime for
disclosures of information by individuals regarding breaches of the tax laws or
misconduct in relation to an entity’s tax affairs
- Part
3 repeals the financial sector whistleblower protection regimes in the Banking Act 1959,
Insurance Act
1973, Life
Insurance Act 1995 and Superannuation
Industry (Supervision) Act 1993 and clarifies transitional
arrangements.
Background
Whistleblowing is often referred to as public interest
disclosure.[1]
It is generally acknowledged that whistleblowers perform an essential function
in the community, ensuring that public officials are held to account and
private actors operate within the confines of the law.[2]
Protection of whistleblowers is therefore integral to fostering transparency,
promoting integrity and detecting misconduct.[3]
Laws protecting whistleblowers aim ‘to protect disclosures
which would otherwise breach the law such as the law of confidential
information and of defamation’ and ‘provide legal remedies for whistleblowers
if they suffer reprisals for making the disclosure’.[4]
Current whistleblower protection
regimes
Currently in Australia, whistleblowers are protected under
three main pieces of legislation federally: the Public Interest
Disclosure Act 2013 (PID Act), the Corporations Act and
the Fair Work
(Registered Organisations) Act 2009 (RO Act). An outline of
these Acts is provided below.
Public Interest Disclosure Act 2013
The PID Act has broad coverage across the
Commonwealth public sector, including application to the Australian Public
Service, statutory agencies, Commonwealth authorities, the Defence Force, and
contracted service providers for Commonwealth contracts.[5]
The PID Act applies in the main to disclosures made
within government—that is disclosures to authorised internal recipients.
Whistleblowers can disclose directly to their supervisors, as well as to the
‘authorised internal recipient’ of the relevant agency. The authorised
recipient can include the Commonwealth Ombudsman if considered appropriate.
In addition to internal disclosures, it is possible to make
a disclosure externally (such as to the media or a member of parliament)
providing certain conditions apply. A whistleblower is protected if he/she goes
public in circumstances believing on reasonable grounds that an investigation
into the internal disclosure was inadequate and if wider disclosure satisfies
public interest requirements.[6]
Intelligence information can never be the subject of a
public interest disclosure other than an internal disclosure and conduct
engaged in by intelligence agencies and by public officials of these
intelligence agencies which relates to the proper performance of their
functions and powers is excluded from the PID scheme.[7]
There is also provision for ‘emergency
disclosures’. Where there is a substantial and imminent danger to health and
safety or to the environment, the internal disclosure can be by-passed and
disclosures can immediately be made public in accordance with specified
conditions.[8]
Should an individual covered by the PID Act make a
public interest disclosure as defined, the PID Act provides protection
for that individual from any civil, criminal or administrative liability and no
contractual or other remedy or right may be enforced or exercised against the
individual on the basis of that disclosure.[9]
Conduct is disclosable if it falls within the broad concept
of wrong doing in the public sector. The types of disclosable conduct include
conduct:
-
unreasonably results in a danger to the health or safety of one
or more persons
-
unreasonably results in, or increases, a risk of danger to the
health or safety of one or more persons
-
contravenes an Australian law
-
constitutes maladministration or
-
involves wastage of government money.[10]
In 2016, an independent statutory review of the effectiveness
and operation of the PID Act, conducted by Philip Moss found that the PID Act had only been
partially successful.[11]
This was due in part to its recent implementation and ineffective operation of
the framework. The review also found that the mechanisms under the PID Act
which facilitate investigation of wrongdoing were overly complex, and the
categories of disclosable conduct were too broad. It was argued that there
should instead be a focus on the most serious integrity risks.[12]
The Moss Review’s recommendations included:
- strengthening
the ability of the Commonwealth Ombudsman and the Inspector-General of Intelligence
and Security to scrutinise and monitor the decisions of agencies, and
increasing the number of investigative agencies
- strengthening
the PID Act’s focus on significant wrongdoing and expanding the grounds
for external disclosure
- redrafting
the PID Act using a principles-based approach and
- providing
better protections for witnesses and whistleblowers.[13]
The Government response to these recommendations is pending.
Corporations Act 2001
Current protections for whistleblower disclosures in the
corporate sector are contained in Part 9.4AAA of the Corporations Act, which
was introduced as part of a range of corporate legislative reforms in 2004.
There are also protections for public interest disclosures
concerning misconduct or an improper state of affairs or circumstances affecting
the institutions supervised by the Australian Prudential Regulation Authority
(APRA) in the following Acts:
- Banking
Act
- Insurance
Act
- Life
Insurance Act and
- Superannuation
Industry (Supervision) Act.[14]
In summary, the protections for whistleblowers in Part
9.4AAA of the Corporations Act include protection from any civil
liability, criminal liability or the enforcement of any contractual right that
arises from the disclosure that the whistleblower has made. Part 9.4AAA also
prohibits the victimisation of whistleblowers, which is a criminal offence
under the Act. A whistleblower has the right to seek compensation if damage is
suffered as a result of any victimisation.
The Corporations Act also includes a confidentiality
protection for whistleblowers, making it an offence for a company, the
company's auditors, or an officer or employee of the company to reveal a
whistleblower's disclosed information or identity. Disclosure of this
information to the Australian Securities and Investments Commission (ASIC),
APRA, a member of the Australian Federal Police (AFP) or disclosure with the
whistleblower's consent is allowed.
Part 9.4AAA also outlines the categories of information
disclosures that attract whistleblower protections under the Act, who can
qualify as a whistleblower, who the disclosure should be made to, and the
conditions in which such a disclosure must be made.
In order to receive protection under the Corporations Act
as a whistleblower, the person disclosing misconduct within a company must:
- be
an officer or employee of that company
- have
a contract to provide goods or services to that company
- be
an employee of a person that has a contract to provide goods or services to
that company.[15]
Protections for a whistleblower only apply if they make the
disclosure of misconduct to ASIC, the auditor of the company in question, or
certain persons within the company.[16]
The Corporations Act also provides that, in order to qualify for
whistleblower protection, the person making a disclosure cannot do so
anonymously, and must provide their name before making the disclosure.[17]
Further, the whistleblower must make the disclosure 'in good faith' and have
reasonable grounds to suspect that the company, or an officer or employee of
the company has, or may have, contravened a provision of the corporations
legislation.[18]
A whistleblower can only receive protection under the Act if
they are reporting breaches of the Corporations Act and the ASIC Act,
the regulations made under those Acts and the Insolvency Practice Rules.[19]
Although the Corporations Act establishes an explicit
and central role for ASIC as a receiver of whistleblower disclosures, it is
silent on how the regulator should actually handle the information it receives
from whistleblowers. Nor does the Act empower ASIC to act on behalf of
whistleblowers.
Fair Work
(Registered Organisations) Act 2009
In November 2016, the Parliament passed amendments to the RO
Act which strengthened whistleblower protections for people who report
corruption or misconduct in unions and employer organisations.[20]
These amendments were part of an agreement negotiated by the Government to gain
Senate crossbench support for legislation to establish the new Registered
Organisations Commission and strengthen the governance of trade
unions.[21]
The relevant provisions, found in Part 4A of Chapter 11 in
the RO Act provide protections to persons — ‘the disclosers’ — ‘who
disclose information about certain contraventions of the law’, including current
and former officers, employees, members and contractors of organisations. Anonymous
disclosures are allowed.
To qualify for protection the disclosure has to be made
either to the Registered Organisations Commission, Fair Work Ombudsman, Fair
Work Commission or Australian Building and Construction Commission if the
discloser suspects on reasonable grounds that it refers to 'disclosable
conduct' defined broadly as an act or omission that:
-
contravenes, or may contravene, a provision of the RO Act,
the Fair Work Act 2009 or the Competition and Consumer Act 2010 or
-
constitutes, or may constitute, an offence against a law of the
Commonwealth.[22]
The disclosure can be made via
the discloser’s lawyer.[23]
Disclosures to other external parties do not qualify for protection.
The ‘reprisals’ contemplated by the whistleblower
protections in the Act include the dismissal of an employee, injuring the
employee in his or her employment, altering the employee's position to his or
her detriment, discriminating between an employee and other employees,
harassment or intimidation of a person, harm or injury to a person (including
psychological harm) and damaging a person's property or reputation.[24]
A person who takes a reprisal against a
whistleblower can be pursued for civil or criminal remedies. On an application
for civil remedies, a court can make any order it thinks appropriate if
satisfied that a reprisal was taken or threatened (including compensation,
reinstatement and ordering an apology). An applicant for such civil remedies is
not limited to the Registered Organisations Commissioner but also includes the
target of the reprisal, the General Manager of the Fair Work Commission, the
Director of the Fair Work Building Industry Inspectorate or the Fair Work
Ombudsman.[25]
The criminal sanctions for taking or threatening
to take a reprisal are imprisonment for two years or the imposition of a
penalty of up to 120 penalty units, or both.[26]
At the time of the passage of these amendments,
then Senator Nick Xenophon, the leading negotiator from the Senate cross bench,
was reported as describing the new whistleblower protections as going beyond
anything seen before in the Commonwealth or in the states. He said the reforms
should be a template which needed to be replicated into corporation and public
sector law.[27]
Professor A J Brown, one of the country’s leading authorities
on whistleblower laws, who advised both Senator Xenophon and the Government on
these amendments, was equally enthusiastic.[28]
When giving evidence to the Parliamentary Joint Committee on
Corporations and Financial Services (PJC) inquiry into whistleblower
protections, Professor Brown described the amendments as ‘historic’,
‘significant improvements’ and that the precedents in that legislation would be
an excellent starting point for further changes to the corporations regime.[29]
In a written agreement at this time between
the Nick Xenophon Team (NXT) and the Government (the 2016 agreement), the
Government agreed to support a parliamentary inquiry to examine the RO Act
whistleblower protections ‘with the objective of implementing the substance and
detail of those amendments to achieve an equal or better whistleblower
protection and compensation regime in the corporate and public sectors’.[30] The Agreement also
provided that legislation would be introduced by December 2017 with a vote on
the legislation no later than 30 June 2018.[31]
Reviews and inquiries
Calls for reform to the whistleblower provisions in the Corporations
Act are not new and since 2004, when the provisions were first introduced, there
have been a plethora of inquiries and reviews.[32]
The general consensus of these inquiries is that private sector protection of
whistleblowers is piecemeal, inadequate, out-of-date and in urgent need of
reform.
Underlying the apparent inadequacies of Australia's current
corporate whistleblower framework, it appears whistleblowing in the corporate
sector is rare. In a 2013 article in the Australian Business Law Review,
Flinders University academics highlighted the fact that 'virtually no use' has
been made of the Part 9.4AAA protections, and suggested:
In part this may be because the whistleblower provisions
under the Corporations Act offer protection under limited circumstances
only [...]. It may also be as a result of the fact that the negative implications
of whistleblowing continue to outweigh potential benefits. The reasons why
individuals do not blow the whistle, or regret it when they do, are many, but
include reprisal, loss of employment if the employer consequently implodes,
black-listing, publicity, psychological and emotional stress, and potential
liability for contractual breaches. In the absence of clear incentives to
disclose fraud, the regulatory value of private individuals as informants is
heavily curtailed. It may be that not enough is currently being done to
overcome disincentives and to encourage whistleblowing in the Australian
corporate environment, and the failure of existing systems to protect
Australian corporate whistleblowers sufficiently has been identified as
offering evidence of the need for a different approach.[33]
The authors argue that consideration should be given to
implementing a system of financial incentives or a ‘bounty system’ as exists in
the United States. Such an approach may be a credible alternative to existing models
that focus on protection rather than incentives.[34]
Comparative international studies which have included
analysis of Australia’s whistleblower laws have drawn similar conclusions
regarding the inadequacies of whistleblower protection legislation,
particularly in the corporate sphere. An independent evaluation of G20
countries' whistleblowing laws was undertaken in 2014 by leading Australian
experts in this field. The study assessed the current state of whistleblower
protection against a set of 14 criteria, developed from five internationally recognised
sets of whistleblower principles recognised as constituting best practice. In
respect of Australia’s laws, the evaluators concluded that although Australia’s
whistleblower protections were fairly comprehensive for the public sector, they
lagged international best practice for the private sector.[35]
The review suggested that in the private sector the scope of wrongdoing covered
is ill-defined, anonymous complaints are not protected, there are no
requirements for internal company procedures, compensation rights are
ill-defined, and there is no oversight agency responsible for whistleblower protection.[36]
Further evaluative research work has recently been
conducted by Professor A J Brown and colleagues from the Whistling While
They Work 2 research project. The project undertook a survey on the
strength of organisational whistleblowing processes and procedures in Australia
with the survey’s 699 respondents covering 10 public sector jurisdictions, five
private industry sector groups and four not-for-profit sector groups. The analysis
examined the self-reported presence of: incident reporting and tracking;
support strategies for staff; risk assessment processes for reprisals;
dedicated support staff; and remediation processes. Amongst other things, the
results of the survey analysis indicate:
- public
and private sector organisations are in many cases making significant efforts
to improve whistleblower protections, although processes in the public sector
are stronger than the private sector, and
- there
is a need for clearer guidance and either statutory or industry requirements,
or incentives, across key areas of whistleblowing processes especially for the
private and not-for-profit sectors.[37]
Parliamentary Joint
Committee on Corporations and Financial Services: Inquiry into whistleblower
protections in the corporate, public and not-for-profit sectors
On 30 November 2016, the Senate referred an
inquiry into whistleblower protections in the corporate, public and
not-for-profit sectors to the Parliamentary Joint Committee on Corporations and
Financial Services (PJC).[38]
The Committee reported in September 2017 (the PJC Report). The Government
supported this inquiry as part of the 2016 agreement with the cross-bench
Senators. While there have been numerous other committee inquiries into whistleblower
protection, the PJC Report is the most relevant in the context of the Bill
currently before the Parliament. Details of the PJC inquiry are available on
the Committee’s homepage.
The PJC made a detailed study of the three Acts (that is,
the Corporations Act, the PID Act and the RO Act) noting
the fragmented nature and the significant inconsistencies that exist, across
both public and private sector whistleblower legislation.
The PJC used the best practice guidelines set out in the Breaking
the Silence report as a systematic basis for conducting its inquiry and
structuring the report.[39]
Based on those criteria, the Committee’s key recommendations include:
- broadening
the private sector protection and ensuring consistency by bringing all private
sector legislation into a single Act (Recommendation 3.1)
- broadening
the private sector definition of disclosable conduct to include:
- a
breach of any Commonwealth law, or
- a
breach any law of a state, or a territory where:
- the
disclosure relates to the employer of the whistleblower and the employer is an
entity covered by the Fair Work Act or
- the
disclosure relates to a constitutional corporation (Recommendation 5.2)
- providing
protections for both former and current staff that could make a disclosure, or
are suspected of making a disclosure (Recommendation 6.2)
- providing
appropriate protection for recipients of disclosures and those required to take
action in relation to disclosure (Recommendation 6.4)
- adopting
a tiered approach comprising:
- internal
disclosure
- regulatory
disclosure and
- external
disclosure (in appropriate circumstances) (Recommendations 8.5 and 8.6)[40]
- protecting
internal disclosures in the private sector, including in registered
organisations (Recommendation 8.1)
- aligning
thresholds for protection across the public and private sectors (Recommendations
6.1, 6.3 and 7.2)
- allowing
for anonymous disclosures across the public and private sectors (Recommendation
7.1)
- protecting
the confidentiality of the disclosures and the whistleblower's identity
(Recommendation 7.3)
- aligning
the public and private sector with the protections, remedies and sanctions for
reprisals in the RO Act (Recommendation 10.2)
- establishing
a Whistleblower Protection Authority (to be housed within a single body or an
existing body) as a ‘one-stop shop’ with oversight of the whistleblower regime
with a range of investigatory powers (Recommendation 12.1)
- that
the Whistleblower Protection Authority have the power to set and promote
standards for internal disclosure procedures in the public and private sector
(Recommendation 12.7)
- requiring
the Whistleblower Protection Authority to provide annual reports to Parliament
for both the public and private sectors in consistent format to facilitate
comparison (Recommendation 12.8).[41]
The PJC also examined the possibility of reward or bounty
systems and took submissions from those arguing for and against their
introduction in Australia. The Committee considered the experiences of other
jurisdictions, noting particularly that reward systems exist in a number of
jurisdictions similar to Australia, including the US and Canada. In the PJC’s
view a reward system would motivate whistleblowers to come forward with high
quality information. This information would otherwise be difficult to obtain.
The Committee considers that a reward system will also motivate companies to
improve internal whistleblower reporting systems and to deal more proactively
with illegal behaviour.[42]
The PJC recommended the implementation of a reward system
that would place a cap on the reward being paid to a whistleblower, be
reflective of the information that is disclosed and be determined against a
number of criteria so as to mitigate against perceived negative consequences.[43]
Government reform and the Exposure
Draft of the Treasury Laws Amendment (Whistleblowers) Bill 2017
In December 2016, the Government committed, as part of the
Open Government National Action Plan (OGNAP)[44],
to ensure appropriate protections are in place for people who report corruption,
fraud, tax evasion or avoidance, and misconduct within the corporate sector. The
action plan includes a commitment to improve whistleblower protections in the
tax and corporate sectors:
We will do this by improving whistle-blower protections for
people who disclose information about tax misconduct to the Australian Taxation
Office. We will also pursue reforms to whistle-blower protections in the
corporate sector, with consultation on options to strengthen and harmonise
those protections with those in the public sector.[45]
On 23 October 2017, the Government released for public
consultation exposure draft legislation—the Treasury
Laws Amendment (Whistleblowers) Bill 2017 (Exposure Draft Bill) and
related materials.[46]
The Exposure Draft Bill was described as delivering on the Government’s
commitments under the OGNAP and as announced in the 2016 Budget:
These reforms will, for the first time, create a single
whistleblower protection regime in the Corporations Act, to cover the
corporate, financial and credit sectors, and create a new whistleblower
protection regime in the taxation law, to protect those who expose tax
misconduct.[47]
The Minister’s media release indicated that the
Government’s recently formed Expert Advisory Panel on Whistleblower Protections[48]
would assess the Exposure Draft Bill and the Panel’s advice, together with ‘advice
and the feedback received from the consultation’ would be taken into account by
the Government in ‘finalising
the legislation for introduction to Parliament in the last sitting week of the
year’.[49]
At a later stage, the Expert Advisory Panel’s work would involve ‘considering
the remaining recommendations in the PJC Report and providing further
information and advice to Government, to assist it in formulating its response
to the PJC Report’.[50]
Submissions on the Exposure Draft Bill and consultation
paper are available on the Treasury’s website.
The Exposure Draft Bill, with some amendments, formed the
basis for the Bill introduced into Parliament on 7 December 2017.
At this point it should be noted that three major PJC
recommendations are missing from the Bill. These are:
- complete harmonisation of private sector whistleblower protections
by combining such protections into one Act (Recommendation 3.1)
- the introduction of a rewards system or ‘bounties’ for eligible
whistleblowers (Recommendations 11.1 and 11.2) and
- the introduction of a Whistleblower Protection Authority
(Recommendation 12.1).[51]
Committee
consideration
Senate Economics Legislation
Committee
On 8 February 2018, the Senate referred the Bill to the
Senate Economics Legislation Committee for inquiry and report by 16 March 2018.[52]
Details of the inquiry are available on the Committee’s homepage.
The Committee in its report made two recommendations for
amendment of the Bill, namely that an explicit requirement for review be included
in the Bill and that the definition of ‘journalist’ be reviewed. On balance,
the Committee was satisfied that the Bill ‘is a move in the right direction and
will be a valuable contribution to whistleblower protection’.[53]
The Committee recommended that the Bill be passed.
Labor Senators provided additional
comments on the Bill noting amongst other things that while the Government
had committed to introducing a Bill that would be consistent with the PJC
Committee recommendations, the Bill ‘falls far short’ of those recommendations.[54]
They point to the issues with the Bill raised by submitters
including the Law Council of Australia, Professor AJ Brown, Mr Jeff Morris and
the Uniting Church. Labor Senators consider it unlikely that the Government
will introduce legislation for further whistleblower reform in this term of the
Parliament. They conclude their position to be that:
- the
Government should release its response to the PJC report as soon as practically
possible
- the
Government should release guidance on internal whistleblowing policies in a
timely manner, particularly given the concerns raised about the range of
eligible recipients and
- noting
the issues raised during the course of the inquiry, Labor Senators will continue
to consult with stakeholders on the Bill.[55]
The Australian Greens, represented by Senator Peter
Whish-Wilson, argued that the Bill is a missed opportunity. In their additional
comments, the Greens state:
While the Bill does improve protections provided for
whistleblowers—off a very low base—it has failed to do so adequately or in a
way that recognises the enormous toll that whistleblowing can have on an
individual.[56]
Noting what the Greens regard as the extent of the
shortcomings in the Bill and the difficulty of addressing all these issues
through amendment, the Greens nevertheless are intending to seek amendment of
the Bill in the Senate to ‘better reflect the findings’ of the PJC report.[57]
Centre Alliance Senator Rex Patrick, in a dissenting
report, argued that the Bill is ambiguous and confusing and the provisions ‘do
not effectively protect whistleblowers, nor are they sufficiently workable for
companies that will be subject to them’. The Senator states:
The Bill fails both the public and the whistleblower. If it
is to deal effectively with protecting those who have or who are revealing
corporate misconduct, such as in the Commonwealth Bank of Australia ’s (CBA’s)
financial planning arm in 2008 (Jeff Morris), Securency (James Shelton), CBA’s
Intelligent Deposit Machines andthe recent and ongoing revelations from the
Banking Royal Commission, the Bill must be amended.[58]
Senate
Standing Committee for the Scrutiny of Bills
The Senate Scrutiny of Bills Committee (Scrutiny Committee)
raised two issues with the Bill.
Reversal of evidential burden of
proof
The Bill amends the Corporations Act and TA Act
to provide it is an offence for a person to disclose certain information
relating to the identity of a whistleblower (proposed sections 1317AAE (item
2) and 14ZZW (item 15) respectively). The offences include exceptions
where these offences do not apply. Defendants bear the evidential burden in
relation to these exceptions (see subsection 13.3(3) of the Criminal Code Act
1995). The Scrutiny Committee requested the Treasurer's advice as to
‘why it is proposed to use offence-specific defences (which reverse the
evidential burden of proof) in these instances’.[59]
The Minister for Revenue and Financial Services, Kelly
O’Dwyer, in response justified the use of offence specific defences stating:
The expanded corporate defence recognises the necessity of
revealing particular information to unde1take an investigation, and that the
reasonableness of steps taken to reduce the risk of disclosing a
whistleblower's identity will depend on circumstances particular to the entity.
These are matters peculiarly within the defendant entity's knowledge, and not
available to the prosecution. For this reason, it is appropriate that the
defendant entity bear the burden of adducing evidence about these matters to
make out the defence and that this be implemented as an offence-specific
defence rather than as an additional element of the offence.[60]
The Committee thanked the Minister for her response and
asked that the key information provided by the Minister on this issue be
incorporated into the Explanatory Memorandum to the Bill.[61]
Henry VIII clause
Proposed section 1317AI of the Corporations Act,
at item 9 of the Bill requires certain classes of companies to have
whistleblower policies and make these policies available to the company's
officers and employees. However proposed section 1317AJ provides for
ASIC to, by legislative instrument, make an order relieving specified classes
of companies from all or particular whistleblower policy requirements. The
Scrutiny Committee stated:
A provision that enables delegated legislation to amend
primary legislation (including amending the operation of primary
legislation) is known as a Henry VIII clause. There are significant concerns
with enabling delegated legislation to override the operation of legislation
which has been passed by Parliament, as such clauses impact on levels of
parliamentary scrutiny and may subvert the appropriate relationship between
Parliament and the Executive. As such, the committee expects a sound
justification for the use of a Henry VIII clause to be provided in the explanatory
memorandum.[62]
The Scrutiny Committee sought the Treasurer's more
detailed justification for ASIC’s ‘broad powers to exempt classes of company
from the operation of proposed section 1317AI’ and ‘whether it would be
appropriate to amend the Bill to insert (at least high-level) rules or guidance
concerning the exercise of ASIC's powers’.[63]
The Minister, in response, justified these powers stating:
Given the range of corporate and business structures, the
Bill permits ASIC a class order power to allow it to make class orders that
strike a reasonable balance between promoting widespread self-regulation and
protecting smaller entities from unnecessary regulation. These considerations
will need to be assessed on a case by case basis. Additional rules or guidance
are not appropriate as they may limit the utility of the class order powers,
particularly in respect of unforeseen situations.[64]
The Committee thanked the Minister for her response and
asked that the key information provided by the Minister on this issue be
incorporated into the Explanatory Memorandum to the Bill.[65]
Financial
implications
The Explanatory Memorandum states that the amendments in
Part 1 of Schedule 1 to the Bill will have minimal financial impact, although
the estimated compliance cost for the corporate sector is $15.4 million per
year over ten years.[66]
The financial impact of the amendments in Part 2 of Schedule 1 is said to be
unquantifiable and there are no compliance costs from the impact of the tax
whistleblower regime.[67]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[68]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights considered
the Bill did not raise human rights concerns.[69]
Policy position
of non-government parties/independents
As noted above, Australian Labor Party Senators, Australian
Greens Senator Peter Whish-Wilson and Centre Alliance Senator Rex Patrick, in
their work for the Senate Committee inquiry into the Bill, raised a number of
concerns, essentially arguing that the Bill is a minimalist approach and fails
to adequately improve protections for whistleblowers. See above under the
heading Senate Economics Legislation Committee.
Position of major interest groups
The Senate Economics Legislation Committee inquiry into the
Bill received 33 submissions. These submissions are from a range of interested
parties including key representatives of the legal, banking, tax and accounting
professions, advocates of transparency and open government, as well as
academics and other individuals. Some organisations and individuals made
submission to the Treasury on the Exposure Draft Bill. As the Exposure Draft
Bill and the Bill before Parliament are very similar, the views of submitters
are relevant in this Digest.
While submitters were generally supportive of the need for
private sector reform, there were a range of views about the specifics of the Bill.
Some of the broader recommendations are set out here and the Keys issues and
provisions section below provides further commentary on the more specific
amendments.
Commonwealth Ombudsman
Based on experience in working with Commonwealth agencies
and whistleblowers in relation to the PID Act, the Office of the
Commonwealth Ombudsman (OCO) has formed the view that broad-based whistleblower
schemes are very labour-intensive. The OCO’s submission to Treasury on the
Exposure Draft Bill states:
For the OCO, an underestimated source of work has come from
disclosers and agencies requiring independent and confidential support on how
to action disclosures, the extent of whistleblower protections in practice, and
investigative processes.
Based on this experience, a corporate whistleblower scheme is
likely to present as a very substantial implementation task. Without the
benefit of reliable demand estimates, the scale and scope of disclosures will
test the capacity of corporate entities to manage disclosures sufficiently and
in a way that gives broad, public assurance that the scheme is operating
effectively. The potential complexity of the matters disclosed under any
corporate scheme is likely to include resourcing and cost implications.[70]
The OCO also notes that the Exposure Draft Bill is silent
on the institutional arrangements necessary to support the administration of
the corporate scheme. (Note that this is also the case in the Bill before the
Parliament.)
The OCO’s view is that without independent external
oversight there could be conflict of interest issues:
In our view, it may be difficult for existing corporate
regulators to assume this additional role without raising significant conflict
of interest concerns for the public. That is because regulators such as ASIC
have a regulatory and law enforcement role in relation to corporations. If they
were also to administer the whistleblower scheme they would be provided with
information under that scheme which was relevant to their regulatory function
but which may not be able to be shared with the relevant parts of their agency,
given the need to maintain the confidentiality of the information provided by
the whistleblower.
Independent oversight and system-wide monitoring of corporate
entities discharging responsibilities under a statutory scheme is recommended
as is a resourced and independent complaint review mechanism.[71]
Transparency International Australia
Transparency International Australia (TI Australia) considers
that the positive element of the Bill is that it ‘transforms a currently
inadequate scheme into the beginning of an effective scheme’, but argues that
the Government should be placing priority on a comprehensive reform package as
outlined by the PJC Report rather than piecemeal legislative
improvements.[72]
The submission states:
Domestic and international experience shows
that whistleblower protections can be strong ‘on paper’ but meaningless in
practice, unless the right support is provided to enable whistleblowers to
activate their rights. It is also imperative that the scheme is sufficiently
comprehensive, with appropriate support of administering agencies and regulated
entities, including an agency with the power and resources to properly refer
and coordinate the responses to disclosures where multiple agencies may become
involved. Both these elements are entirely missing from the Government’s proposed
amendments [...]
These facts reinforce our view that the
Government should respond with a more comprehensive package before introducing
any specific amendments to Parliament.[73]
TI Australia also supports the PJC recommendation that all
private sector whistleblower protections should be placed in one set of rules
(including those relating to tax, even if the identity of a tax entity for the
rules is slightly broader than just corporate entities):
Anything less risks the proliferation of
multiple rules which will only complicate matters both for whistleblowers, and
for companies; and impede the practical effectiveness of protections. Even if
the Government decides to continue to proceed with amendments to the
Corporations Act as an interim measure before proceeding to a fully
comprehensive approach, the tax whistleblowing provisions should be
incorporated into that Act (including protections for financial services,
credit, insurance, superannuation of whistleblowers) rather than left sitting
in parallel. In the absence of compelling reasons, we consider that having
parallel schemes is both unnecessary and unwise. We believe the Government
should heed the Parliamentary Committee report on this as well as other
matters, before proceeding with any legislation.[74]
Finally, it is TI Australia’s view that the
absence of any significant new implementation roles and responsibilities being
given to any agency (for example a whistleblowing agency, whether stand-alone
or part of another agency) is a likely fatal gap in the proposed arrangements.[75]
Law Council of Australia
The Law Council of Australia strongly supports significant
reform of whistleblowing laws in Australia and the broad thrust and intent of
the Bill. However, the Law Council’s submission, like TI Australia, expresses concern
that the Bill is not addressing the requirements for a comprehensive scheme, as
identified by the PJC Report.[76]
The Law Council’s primary recommendation on the Exposure
Draft Bill was that the Expert Advisory Panel and the Treasury assess that Bill
against the Report to ensure a comprehensive whistleblower regime is achieved. The
Law Council considered that this should occur prior to the introduction of the
Bill into Parliament to ensure appropriate alignment of whistleblower laws.[77]
In its submission on the Bill now before the Parliament, the
Law Council notes that the Bill does not currently address several of the
issues for a comprehensive whistleblower regime, as identified by the PJC
report including:
- the
creation of a single Whistleblower Protection Act covering all areas of
Commonwealth regulation beyond the Bill’s corporate financial service and tax
entities
- access
to non-judicial remedies
- an
agency empowered to implement the regime such as a whistleblower protection
authority and
- appropriate
resourcing for effective implementation.[78]
The Law Council therefore encourages the Australian
Government and the Treasury to continue to work towards a comprehensive
whistleblower regime and to provide a prompt response to the PJC Report.
Further, the Law Council notes that there have been
changes between the Exposure Draft and the Bill which are of concern including:
- the
expanded definition of ‘eligible recipient’ now includes a person who
supervises or manages the individual. In some organisations this may be
relatively junior employees and this will place a substantial training and
compliance burden on organisations. Given the very broad scope of disclosable
conduct, it is the Law Council’s view that companies may be required to expend
a lot of time responding to complaints which are outside the intended scope of
the legislation. It argues that if this change is to proceed, clarification is
needed to ensure that the obligations imposed are realistically achievable
- the
change in the onus of proof in regard to orders for compensation and other
remedies (the claimant only needs to adduce or point to evidence that
suggests a reasonable possibility of the matters in proposed paragraph
1317AD(1)(a)—that is, it is not necessary for the claimant to prove the matters
on the balance of probabilities). In this context, the Law Council notes for
example that KPMG in its submission on the Exposure Draft suggested that there
should be mandatory conciliation (similar to that contained in the Fair Work
Act general protections regime) before a victimisation claim can be filed
- the
manner in which the emergency disclosure provisions will work. That is, the
notification process in proposed paragraph 1317AAD(1)(d) appears to serve no
purpose as it does not require the discloser to notify the regulated entity or
to give ASIC, APRA or the prescribed bodies, an opportunity to respond
- the
matters which must be dealt with in whistleblower policies have been further
expanded by the Bill, rather than confined.[79]
Professor AJ Brown
Professor Brown did not make a submission on the Exposure
Draft Bill, perhaps because he now holds a position on the Government’s Expert Advisory
Panel set up to advise the Government on the Exposure Draft Bill and the PJC
Report.
Professor Brown’s views are however well articulated in
evidence to the PJC inquiry. Professor Brown strongly emphasised that one of
the most important choices for the PJC and for the Government and the
Parliament is whether whistleblower protection reform for the corporate and
private sectors should be considered in a piecemeal sense or in a comprehensive
sense. He states:
We have evidence now, I think, for the first time that in my
mind confirms that from a business point of view, the logical path is a
comprehensive overarching approach rather than a piece-by-piece, regulatory
silo approach.[80]
In a detailed submission to the Senate Committee inquiry
into the Bill, Professor Brown set out the key strengths and weaknesses of the
Bill. He acknowledges that the Bill proposes many long overdue improvements to
whistleblowing provisions within the Treasury portfolio and that the Bill would
also succeed in at least partially implementing 15 out of the 35
recommendations of the PJC Report.[81]
However Professor Brown identifies five specific areas in
which the Bill does not currently meet national or international standards of
best practice, PJC recommendations and/or existing Government commitments and
policy objectives. These areas are:
- separation
of criminal and civil remedies (that is, the need for a clear separation
between criminal liability for victimisation of whistleblowers and the
different basis on which whistleblowers should be able to obtain compensation
for detriment suffered as a result of whistleblowing)
- making
civil remedies available for detriment flowing from a failure in duty to support
or protect whistleblowers (irrespective of individual intent or belief) (proposed
section 1317AD)
- a
best practice version of the reverse onus of proof in compensation matters (proposed
subsection 1317AE(2))
- a
reasonable filter against individual personal and employment grievances matters
(proposed subsection 1317AA(4))
- realistic
and appropriate protection for third party (for example media/public) disclosure
matters (proposed section 1317AAD).[82]
These matters are discussed more fully in the Key issues
and provisions section of the Bills Digest.
Key issues and provisions
Part
1—Amendment of the Corporations Act 2001
Part 1 of Schedule 1 to the Bill contains amendments
to the Corporations Act that aim to consolidate the existing
whistleblower protections and remedies for corporate and financial sector
whistleblowers while also strengthening and broadening these protections.
Disclosures
qualifying for protection
Existing section 1317AA details the disclosures that
qualify for protection under Part 9.4AAA of the Corporations Act. Item
2 would repeal and replace section 1317AA in order to broaden the
types of disclosures that qualify for protection (referred to as qualifying
disclosures).
Under proposed section 1317AA a disclosure may
qualify for protection under Part 9.4AAA if:
- it
is made by an ‘eligible whistleblower’ in relation to a ‘regulated entity’
- it
concerns a ‘disclosable matter’ and
- it
is disclosed to any of the following:
- ASIC
or APRA (or other Commonwealth body that is prescribed by reguFlations)
- an
‘eligible recipient’, or
- a
legal practitioner for the purposes of obtaining legal advice or representation
on the operation of the whistleblower regime.
The meaning of the terms ‘disclosable matter’, ‘eligible
whistleblower’, ‘regulated entity’, and ‘eligible recipient’ are discussed
below.
Meaning of
‘disclosable matter’
The matters that may be disclosed in order to qualify for
protection are set out in in proposed subsections 1317AA(4) and 1317AA(5).
A disclosable matter is information the whistleblower has reasonable grounds to
suspect:
- concerns
misconduct, or an improper state of affairs or circumstances, in relation to
the regulated entity or (if the regulated entity is a body corporate)—a related
body corporate, or
- indicates
that the regulated entity or related body corporate (or any officer or
employee) has engaged in conduct that constitutes an offence against, or a
contravention of the Corporations Act, the ASIC Act, the Banking
Act, the Financial
Sector (Collection of Data) Act 2001, the Insurance Act, the Life
Insurance Act, the National Consumer
Credit Protection Act 2009, or the Superannuation Industry
(Supervision) Act, or instruments made under these laws, or
- constitutes
an offence against any other law of the Commonwealth that is punishable by
imprisonment for a period of 12 months or more, or
- represents
a danger to the public or the financial system, or
- is
other conduct as prescribed by the regulations.
Comment
Unlike the current regime, disclosures do not have to be
made in good faith, but only on the basis of an objective test requiring the
discloser to have ‘reasonable grounds to suspect’ misconduct or other
disclosable matters. As the Explanatory Memorandum notes, recent reviews have
all argued that a requirement that a whistleblower makes a disclosure ‘in good
faith’ creates uncertainty and risk for whistleblowers.[83]
Disclosures may be made anonymously as confirmed in the
Note at the end of proposed section 1317AA. In contrast, the existing
regime requires a whistleblower to provide a name when making a disclosure.[84]
Meaning of
‘eligible whistleblower’
The meaning of ‘eligible whistleblower’ is important as it
sets the boundaries for who may make disclosures that qualify for protection
under Part 9.4AAA. The new law expands the categories of individuals who can
make a qualifying disclosure. Under proposed section 1317AAA an
‘eligible whistleblower’ is an individual who is, or has been, in a
relationship with an entity (the regulated entity) about which a disclosure is
made. The following individuals are eligible whistleblowers if they are, or
have been:
- an
officer, employee, or associate of the regulated entity
- an
individual (or their employee) who supplies services or goods to the regulated entity
(whether paid or unpaid)
- for
a regulated entity that is a superannuation entity
- an
individual who is a trustee, custodian or investment manager of the
superannuation entity
- an
officer of a body corporate that is a trustee, custodian or investment manager
of the superannuation entity
- an
employee of any of the above
- an
individual (or their employee) who supplies services or goods (whether paid or
unpaid) to an individual who is a trustee, custodian or investment manager of
the superannuation entity or to an officer of a body corporate that is a
trustee custodian or investment manager of a superannuation entity
- a
relative or dependent of any of the above (this includes a spouse, parent or
other linear ancestor, child or grandchild, and sibling)[85]
or
- an
individual prescribed by the regulations in relation to a type of regulated
entity.
Comment
By way of comparison, the existing corporate and financial
sector whistleblower protections apply to persons in a current relationship
with the company or entity about which the disclosure is made. The Explanatory
Memorandum argues that this presents a gap in current protections, as it precludes
former directors, officers and employees, contractors and closely related
persons from making protected disclosures. The amendments described above
expand the categories of protected persons to include a person who was formerly
in an eligible whistleblower relationship with a regulated entity.[86]
Meaning of
‘regulated entities’
Proposed section 1317AAB consolidates the list of
entities currently regulated by the whistleblower protection regimes in the Corporations
Act and other financial services legislation. Regulated entities are
defined to be any of the following:
- a
company
- a
corporation to which paragraph 51(xx) of the Constitution applies
(that is, a foreign corporation, or trading or financial corporation formed
within the limits of the Commonwealth)
- within
the meaning of the Banking Act—an authorised deposit taking institution
(ADI) or authorised non-operating holding company (NOHC) or their subsidiaries[87]
- within
the meaning of the Insurance Act—a general insurer or an authorised NOHC
or their subsidiaries
- within
the meaning of the Life Insurance Act—a life company or a registered
NOHC or their subsidiaries
- within
the meaning of the Superannuation Industry (Supervision) Act—a superannuation
entity or a trustee of a superannuation entity
- an
entity prescribed by the regulations for the purposes of this section.
Meaning of
‘eligible recipients’
‘Eligible recipients’ are persons to whom a qualifying
disclosure may be made, as appropriate to the entities they are involved with.
Under proposed section 1317AAC the category of person to whom a
qualifying disclosure may be made has been expanded and now includes a manager
or supervisor of the whistleblower.
Each of the following is an eligible recipient for a
regulated entity that is a body corporate:
- an
officer, auditor or actuary of the body corporate or related body corporate
- a
person authorised by the body corporate to receive disclosures and
- the
supervisor or manager of a whistleblower who is an employee of the body corporate.
For a disclosure concerning a superannuation entity, each of
the following is an eligible recipient:
- an
officer, auditor or actuary of the superannuation entity
- an
individual who is a trustee of the superannuation entity
- a
director of a body corporate that is the trustee of the superannuation entity,
and
- a
person authorised by the trustee or trustees to receive disclosures that may
qualify for protection.
Where a superannuation entity is a body corporate, then the
eligible recipients include all of those that are eligible in respect of any
other body corporate.
Proposed subsection 1317AAC(3) gives the Minister the
power to prescribe additional persons or bodies as eligible recipients in
regulations.
Emergency
disclosures
This category of disclosure has significant cumulative
requirements and preconditions as set out in proposed section 1317AAD.
Importantly an emergency disclosure can only occur if there has been a previous
disclosure to either ASIC or APRA or another prescribed Commonwealth authority and
the following conditions apply:
- the
whistleblower has reasonable grounds to believe that there is an imminent risk
of serious harm or danger to public health or safety, or to the financial
system, if the information is not acted on immediately
- a
reasonable period has passed since the disclosure to ASIC or APRA was made, and
- after
the end of the reasonable period, the whistleblower gives the body to which the
disclosure was made a written notification that includes sufficient information
to identify the previous disclosure and states that he or she intends to make
an emergency disclosure.
The Explanatory Memorandum does not provide guidance on
the meaning of reasonable period of time stating only that it be ‘reasonable in
all the circumstances’.[88]
Emergency disclosures can only be made to:
- a
member of the Parliament of the Commonwealth or of a state or territory Parliament,
or
- a
journalist, defined to mean a person who is working in a professional capacity
as a journalist for a newspaper, magazine, radio or television broadcasting
service, or an electronic service (including a service provided through the
internet) that is operated on a commercial basis and is similar to a newspaper,
magazine or, or radio or television broadcast.
The Explanatory Memorandum explains that the definition of
journalist is intended to ensure that disclosure to any ‘journalistic’ or
‘media’ enterprise is not sufficient and public disclosures on social media or
through the provision of material to self-defined journalists are not covered
by the protection.[89]
Comment
A number of submitters commented on the equivalent provision
in the Exposure Draft Bill. For example TI Australia argues this provision
falls very far short of international best practice:
While we support an approach where public disclosures should
generally only attract the protections if an effort has first been made to
bring it to the attention of a relevant regulatory or law enforcement agency, the
provision as currently drafted does not adequately cover circumstances where
these protections can and will sometimes be needed.[90]
TI Australia’s position remains, as previously submitted,
that:
All Australian whistleblower protection laws
should extend to whistleblowers who reasonably make their concerns public—for
example because there is no safe mechanism for internal or regulatory
reporting, their employer fails to respond reasonably to their disclosure, or
other reasonable circumstances—including availability of a statutory public
interest defence to civil or criminal proceedings in those situations.[91]
TI Australia also notes that the PJC Report
recommended a test based on a simplified or more ‘objective’ version of the PID
Act tests – which include:
- provision for emergency disclosures without
first going to a regulatory agency, in dire circumstances such as described in
s.1317AAC(1)(c),
- provision for further public disclosure
where any public interest disclosure has not been responded to within a
reasonable time (not just ‘emergency’ ones)
- provision for further public disclosure
where a public interest disclosure has been responded to, but the
response is ‘inadequate’.[92]
TI Australia agrees with the PJC that these
types of circumstances should be included in what is ‘reasonable’, and notes
that the amendments are currently a long way from that standard.
TI Australia’s submission also points to
some of the high profile whistleblowing cases such as Commonwealth Bank
whistleblower Jeff Morris, which in its view should receive protection but
would not be covered by the emergency disclosure provisions in the Bill:
For example, the amendments as currently
proposed would not cover some of the major whistleblowing incidents in recent
Australian history, where it is widely agreed and indeed applauded that
whistleblowers did go public, after inadequate action by regulators. This
includes the Securency / Note Printing Australia foreign bribery matters, and
the related to Commonwealth Bank Financial Planning services and similar
matters. These are exactly the types of situations which must be covered by
these rules, if we genuinely wish that both companies and regulators improve
their practices to ensure that such public disclosure is not required.[93]
In contrast to TI Australia and the PJC Report, some
submitters question the need to provide protection to disclosures to external
bodies. For example the Australian Bankers Association and the Insurance
Council of Australia have concerns about expanding the whistleblower escalation
process to Members of Parliament and journalists.[94]
The Australian Bankers Association submission on the Exposure Draft Bill
states:
The existing (and proposed) framework entitles a
whistleblower to raise concerns with a regulator – Australian Securities and
Investment Commission (ASIC), Australian Prudential Regulation Authority (APRA)
and the Australian Federal Police (AFP) – which are the appropriate bodies to
address “an imminent risk of serious harm or danger to public health or safety,
or to the financial system”. It is inappropriate to establish a parallel
process outside existing regulatory and law enforcement frameworks.
Regulators are required to thoroughly, impartially and
confidentially investigate disclosures and act in the best interests of the
public. Similar standards and requirements are not mandatory for the media.[95]
The Law Council supports the provision as drafted. It considers
that it is appropriate that a disclosure should first be made to a regulator or
the AFP before any disclosure can be made to a member of parliament or a
journalist.[96]
Confidentiality
of whistleblower’s identity
Part 9.4AAA of the Corporations Act includes
provisions aimed at protecting the identity of persons making disclosures. The
Bill repeals and replaces these provisions with the intention of clarifying and
expanding these protections.[97]
Under proposed subsection 1317AAE(1), at item 2
of the Bill, it is an offence for a person to whom a qualifying disclosure is
made to disclose confidential information obtained in the disclosure.
Confidential information is information that identifies the discloser or
information likely to lead to the identification of the discloser.
Proposed subsection 1317AAE(2) sets out
exceptions to this offence, which include where the disclosure is made to:
- ASIC,
APRA or the AFP
- a
legal practitioner for the purpose of obtaining legal advice in relation to the
operation of the whistleblower provisions
- a
person or body prescribed by the regulations, or
- any
person where the disclosure is made with the consent of the discloser.
Proposed subsection 1317AAE(3) clarifies
that exceptions also apply where information is passed from ASIC, APRA
or the AFP to Commonwealth and state and territory authorities for the purpose
of assisting the authority in the performance of its functions or duties. This
would include information passed between ASIC, APRA and the AFP.
Proposed subsection 1317AAE(4) provides that
it is not an offence to disclose information likely to lead to a
whistleblower’s identification where:
- the
disclosure is reasonably necessary for the purposes of investigating a
‘disclosable matter’, and
- the
person takes all reasonable steps to reduce the risk that the whistleblower
will be identified as a result of the disclosure.
The exception does not apply where the actual identity of a
whistleblower is disclosed (subparagraph 1317AAE(4)(a)(i)).
The defendant bears an evidential burden in relying on
this particular exception.[98]
Proposed section 1317AG, at item 9 of the
Bill, provides that if a person (the discloser) makes a qualifying disclosure,
the discloser or any other person is not required to disclose personal
identifying information in court proceedings except where necessary for the
purposes of Part 9.4AAA or where the court or tribunal thinks it necessary in
the interests of justice to do so.
Comment
The Law Council considers that the confidentiality
provisions for protecting a whistleblower’s identity are appropriate and are
likely to be effective. However it also argues the offence of disclosing
confidential information should not stifle bona fide internal
investigations by corporations of information disclosed through internal
whistleblowing. In the Law Council’s view the legislation should encourage
internal whistleblowing and resolution as the preferred route of resolution of
whistleblower claims. The submission states:
This section should make it clear that bona fide internal
investigation of whistleblowing disclosures by the provision of confidential
information matters to authorised employees with responsibility for
investigating whistleblowing and officers who are decision-makers within a
corporation is permitted on a need-to-know basis and is not restricted by the
section. [99]
Immunity
from liability for whistleblowers
Existing section 1317AB deals with immunity from liability
for whistleblowers and items 3 and 4 make amendments to this section to
expand and clarify when these immunities apply. Proposed subsection 1317AB(1)
protects a person who makes a qualifying disclosure from any civil, criminal or
administrative liability and provides that no contractual or other remedy may
be exercised against the person on the basis of the disclosure. In addition, if
the disclosure qualifies for protection the information is not admissible in
evidence against the person in criminal proceedings or in proceedings for the
imposition of a penalty, other than proceedings in respect of the falsity of
the information.
A note confirms that the immunity provided in this section
does not affect the discloser’s own liability in relation to the conduct that
is revealed by the disclosure.
Victimisation
of a discloser
Existing section 1317AC deals with victimisation and
reprisals. It prohibits conduct that intentionally causes detriment to a
whistleblower, or threatens to cause any detriment, because he or she makes a
protected disclosure. The Explanatory Memorandum explains that the existing
requirement that the victimiser intended to cause detriment is inconsistent
with equivalent provisions in the PID Act and the RO Act which
cover conduct engaged in in the belief or suspicion that the whistleblower
proposes to make or could make a protected disclosure. The Explanatory
Memorandum argues that this deficiency amongst others has posed obstacles to
charges being laid under the victimisation provisions of the existing Corporations
Act.[100]
Items 5–8 and 10 make amendments aimed at
addressing these deficiencies. Item 5 repeals and replaces paragraphs
1317AC(1)(c) and (d) with the effect that an offence applies where a person
(the victimiser) engages in conduct that causes any detriment to any other
person in the belief or suspicion that the person or any other person had made,
may make, proposes to make or could make a protected disclosure. The belief or
suspicion about a disclosure or possible disclosure must be part of the reason
for the victimising conduct but does not have to be the only reason.
Item 8 introduces a new definition of ‘detriment’
into the existing victimisation provision (proposed subsection 1317AC(6)).
Detriment is defined to include any of the following:
-
dismissal of an employee
-
injury of an employee in his or her employment
-
alteration of an employee’s position to his or her disadvantage
-
discrimination between an employee and other employees of the
same employer
-
harassment or intimidation of a person
-
harm or injury to a person, including psychological harm
-
damage to a person’s property, reputation, business or financial
position and
-
any other damage to a person.
This follows the equivalent definition in the RO Act
but adds the additional items of damage to a person’s business or financial
position and any other damage to a person.[101]
Item 10 amends subsection 1317E(1) with the
effect of creating a civil penalty provision to address victimisation of a
person in relation to a qualifying disclosure. Item 6 adds notes to
section 1317AC clarifying that the prohibitions on victimisation can be either
offence or civil penalty provisions. The Explanatory Memorandum states that
this ensures that the regulator can choose to prosecute contravention as an
offence or as a civil penalty, as appropriate in the particular circumstances.[102]
Compensation
and remedies
Existing section 1317AD deals with compensation in relation
to victimisation. It is to be repealed and replaced by item 9. Proposed
subsection 1317AD(1) provides that a whistleblower or other individual who
is victimised can seek compensation for loss, damage or injury suffered because
of the conduct of a person (the victimiser), where the victimiser engages in
conduct that causes or threatens to cause any detriment to another person:
- believing
or suspecting that a person made, may have made, proposes to make or could make
a qualifying disclosure, and
- the
belief or suspicion is the reason, or part of the reason, for the conduct.
In relation to the threat to cause detriment, the threat
need not be express or unconditional but may also be implied or conditional.
Nor is it necessary for a person seeking an order to provide that he or she
actually feared that the threat will be carried out (proposed subsections
1317AD(3) and 1317AD(4)).
Under proposed subsection 1317AD(2) compensation
can also be sought in relation to victimisation by body corporates and their
officers and employees.
Proposed section 1317AE provides that in such
proceedings, the Court may make a range of orders including amongst others an
order requiring the victimiser to compensate the person for loss, damage or
injury suffered as a result of victimising conduct.
If satisfied the victimising conduct occurred in
connection with the person’s position as an employee, the court may require the
victimiser and his/her employer each or jointly to compensate the person who
suffered the detriment or any other person for loss, damage or injury.
Under proposed subsection 1317AE(3) the court must
not make an order against the victimiser’s employer if the employer took
reasonable precautions and exercised due diligence, to avoid the victimising
conduct.
The section also provides other remedies in relation to
victimisation including court orders granting injunctions, requiring apologies,
granting exemplary damages and any orders the Court considers appropriate. The
court also has the power to order reinstatement where a person has been
dismissed from their employment because they or another person made a protected
disclosure.
In such proceedings the person claiming compensation bears
the onus of pointing to evidence that suggests a reasonable possibility that
the other person has engaged in conduct that has caused detriment or
constitutes a threat of detriment.
If the claimant discharges that onus the other person
bears the onus of proving that the claim is not made out.
The Explanatory Memorandum justifies the reversal of the
onus of proof stating:
This reversal of the onus of proof recognises the well
documented propensity of organisations that are the subject of a disclosure of
wrongdoing to accuse and victimise the whistleblower, citing reasons other than
the disclosure for their actions...
[The reversal of onus] will mean that an entity that engages
in such conduct, rather than the victim, will bear the onus of proving that the
disclosure was not in any part a reason for their conduct.[103]
In matters arising in court proceedings under section
1317AE, a person claiming compensation cannot be ordered to pay costs of the
other party unless:
- the
court is satisfied that the claimant instituted the proceedings vexatiously or
without reasonable cause, or
- the
court is satisfied that the claimant’s unreasonable act or omission caused the
other party to incur the costs (proposed section 1317AH).
Comment
Professor Brown in evidence to the PJC inquiry supported
similar provisions in the RO Act and the PID Act stating that one
of the advances of this recent legislation is to ‘at least protect
whistleblowers who are applicants for remedies from exposure to having to meet
the costs of their employer or the other side if they are unsuccessful, other
than in circumstances where it is vexatious’. He stated:
That in and of itself is a step forward, but it does not deal
with the reality of just how difficult it is to assert one’s entitlements in this
situation.
In effect, it is a public interest costs rule, which at least
means that the whistleblower is insulated from potentially having to meet the
costs of the other side.[104]
Professor Brown’s evidence continues suggesting that a
rewards system could address the problems of the potentially enormous costs of
whistleblowing.
In contrast, the law firm Herbert Smith Freehills in its submissions
on the Bill and the Exposure Draft Bill expressed concern that these costs provisions
may result in unmeritorious claims being brought which cause respondents to
incur significant and unnecessary legal costs.[105]
Interaction between civil
proceedings, civil penalties and criminal offences
Proposed section 1317AF is a clarifying provision that
deals with the interaction between civil proceedings, civil penalties and
criminal offences. It provides that a person may bring civil proceedings for
compensation or other remedial orders, or for a breach of the victimisation
provisions, even if no prosecution for victimisation has been brought or if
such a prosecution cannot be brought.
Whistleblower
policies
Proposed section 1317AI requires public companies,
large proprietary companies[106]
and proprietary companies that are trustees of registrable superannuation
entities to have a whistleblower policy and make that policy available to
officers and employees. The whistleblower policy must set out information
about:
- the
protections available to whistleblowers
- how
and to whom an individual can make a disclosure
- how
the company will support and protect whistleblowers
- how
investigations into a disclosure will proceed
- how
the company will ensure fair treatment of employees who are mentioned in
whistleblower disclosures
- how
the policy will be made available and
- any
matters prescribed by regulation.
Failure to comply with the requirement to have and make
available a whistleblower policy is an offence of strict liability with a
penalty of 60 penalty units (currently $12,600).
Proposed section 1317AJ would allow ASIC to make an
order relieving a specified class of company from all or specific requirements
regarding whistleblower policies.
Part 2—Amendment of the Taxation
Administration Act 1953
Background
As already noted, the Government announced in the 2016-17
Budget new protections for individual who disclose information to the Australian
Taxation Office on tax avoidance behaviour and other tax issues.[107]
Part 2 of Schedule 1 to the Bill proposes amendments aimed at implementing this
policy. In particular item 15 inserts a new Part IVD—Protection for
whistleblowers into the TA Act to implement a whistleblower
protection regime.
New Part IVD is similar in most respects to the revised Corporations
Act regime described above. While the PJC Report recommended that a
comprehensive corporate and private sector whistleblower regime be established
that would include tax matters, the Bill instead proposes a separate taxation scheme
to run in parallel with the Corporations Act scheme. The Explanatory
Memorandum appears not to indicate why the option of a single consolidated
scheme has not been considered.
Part
IVD—Protection for whistleblowers
Disclosures qualifying for
protection
Proposed section 14ZZT of the TA Act details
the disclosures that qualify for protection under Part IVD of the TA Act
(referred to as qualifying disclosures or protected disclosures). It provides
that a disclosure made by an ‘eligible whistleblower’ in relation to an
‘entity’ is eligible for protection under Part IVD in the following
circumstances:
- where
it is disclosed to the Commissioner of Taxation (Commissioner) and the
discloser considers that the information may assist the Commissioner to perform
his or her functions or duties under a taxation law in relation to the entity
or an associate of the entity[108]
- where
it is disclosed to an ‘eligible recipient’, in relation to the entity and:
- the
discloser has reasonable grounds to suspect that the information indicates
misconduct, or an improper state of affairs or circumstances, in relation to
the tax affairs of the entity or associate
-
the discloser considers that the information may
assist the eligible recipient to perform functions or duties in relation to the
tax affairs of the entity or an associate of the entity
-
where it is disclosed to a legal practitioner for the
purposes of obtaining legal advice or representation on the operation of the
whistleblower regime.
‘Entity’ is broadly defined in the Income Tax
Assessment Act 1997 (ITAA97) and includes for example
individuals, companies, partnerships, trusts and superannuation entities.[109]
Tax affairs means affairs relating to any tax, imposed by
or under, or assessed or collected under a law administered by the Commissioner
(proposed subsection 14ZZT(4)).
Qualifying disclosures may be made anonymously as
confirmed in the Note at the end of section 14ZZT.
The meaning of the terms ‘eligible whistleblower’ and
‘eligible recipient’ are discussed below.
Comment
The Tax Committee of the Law Council is concerned with the
‘reasonable grounds to suspect’ condition referred to above. It argues that the
decision to adopt the objective reasonableness test in place of a good faith
requirement could be problematic in the context of taxation matters. The
submission states:
Particularly where the tax whistleblower laws have been
deliberately drafted to ensure that general anti-avoidance provisions are
captured [...] the Tax Committee notes that it will be a very difficult matter to
determine whether a whistleblower has reasonable grounds in an allegation of
Part IVA / tax avoidance. This could only ever be determined after a full tax
audit has been conducted by the Australian Taxation Office, at which point
working out whether the original application was reasonable or not seems
otiose.[110]
Meaning of ‘eligible whistleblower’
The meaning of ‘eligible whistleblower’ is important as it
sets the boundaries for whom may make disclosures that qualify for protection
under Part IVD. Under proposed section 14ZZU an ‘eligible whistleblower’
is an individual who is, or has been, in a relationship with an entity about
which a disclosure is made. The following are eligible whistleblowers:
- an
officer, employee or associate of the entity
- an
individual (or their employee) who supplies services or goods to the entity
(whether paid or unpaid)
- a
spouse, child or dependant of any individual referred to above
- an
individual prescribed by the regulations in relation to the entity.
Meaning of ‘eligible recipients’
Eligible recipients are generally internal to the entity
about which the disclosure is made or have a relationship with that entity that
is relevant to its tax affairs. Under proposed section 14ZZV each of the
following is an eligible recipient in relation to an entity:
- an
auditor, or a member of an audit team conducting an audit of the entity
- a
registered tax agent or BAS agent who provides services to the entity
- a
person authorised by the entity in relation to the operation of the
whistleblower regime
- a
person or body prescribed in the regulations
- if
the entity is a body corporate, a director, secretary or senior manager of the
body corporate or other employee or officer who has functions or duties in
relation to the entity’s tax affairs
- if
the entity is a trust, a trustee of the trust or a person authorised by the
trustee to receive whistleblower disclosures or
- if
the entity is a partnership, a partner or a person authorised by the partner to
receive whistleblower disclosures.
No provision for emergency
disclosures
In contrast to the Corporations Act amendments, the
proposed TA Act whistleblower provisions are notable for not including
provisions to protect emergency disclosures to a journalist or a member of
Parliament. The Explanatory Memorandum gives several reasons for this omission:
The tax secrecy laws would prevent a whistleblower from knowing
whether the ATO had acted on the disclosure. This would mean that the
‘reasonable period’ criterion - which is a precondition to maintain protection
for any disclosure to parliamentarians or journalists under the Corporations
Act amendments in this Bill – would be difficult to meet in practice.
The provision for emergency disclosure in the Corporations
Act whistleblower regime is intended to operate only in situations where there
is an imminent risk of serious harm or danger to public health or safety or to
the financial system that may be prevented by the disclosure. The disclosure of
taxpayer information to a journalist or a member of Parliament would be unlikely
to meet these conditions.
The confidentiality of taxpayer information is a critical element
of the tax system and public disclosures could compromise complex
investigations by the ATO and other enforcement bodies. They could also cause
the release of commercially sensitive, misleading or incomplete information
into the public domain, and unwarranted reputational damage for entities and
shareholders if, following an investigation, no breach of tax laws or
under-payment of tax is found. The possibility of misleading information being
disclosed is particularly relevant in relation to disclosures based on limited
or incomplete information about entities with complex tax affairs.
In addition, providing protection for disclosures of taxpayer
affairs to a journalist or a member of parliament may encourage vexatious
disclosures, particularly in relation to taxpayers who are individuals.[111]
Confidentiality of whistleblower’s
identity
Proposed section 14ZZW deals with the protection of a
whistleblower’s identity. To a degree it replicates the equivalent amendments
to the Corporations Act.
Under proposed subsection 14ZZW(1) it is an offence
for a person to whom a qualifying disclosure is made to disclose confidential
information obtained in the disclosure. Confidential information is information
that identifies the discloser or information likely to lead to the
identification of the discloser. The penalty for this offence is imprisonment
for six months and/or 30 penalty units ($6,300).[112]
Proposed subsection 14ZZW(2) sets out exceptions to
this offence, which include where the disclosure is made to:
- the
Commissioner
- the
AFP
- a
legal practitioner for the purpose of obtaining legal advice in relation to the
operation of the whistleblower provisions
- a
person or body prescribed by the regulations or
- any
person where the disclosure is made with the consent of the discloser.
Proposed subsection 14ZZW(3) provides that
it is not an offence to disclose information likely to lead to a
whistleblower’s identification where:
- the
disclosure is reasonably necessary for the purposes of investigating
misconduct, or an improper state of affairs or circumstances to which a
qualifying disclosure relates, and
- the
person takes all reasonable steps to reduce the risk that the whistleblower
will be identified as a result of the disclosure.
The exception does not apply where the actual identity of a
whistleblower is disclosed (subparagraph 14ZZW(3)(a)(i)).
The defendant bears an evidential burden in relying on
this particular exception.
Immunity from liability for
whistleblowers
Proposed section 14ZZX deals with immunity from liability
for whistleblowers. Proposed subsection 14ZZX(1) protects a person who
makes a qualifying disclosure from any civil, criminal or administrative
liability and provides that no contractual or other remedy may be exercised
against the person on the basis of the disclosure. In addition, if the
disclosure qualifies for protection the information is not admissible in
evidence against the person in criminal proceedings or in proceedings for the
imposition of a penalty, other than proceedings in respect of the falsity of
the information. This immunity applies only in relation to disclosures to the
Commissioner.
A note confirms that the immunity provided in this section
does not affect the discloser’s own liability in relation to the conduct
revealed by the disclosure.
Proposed subsection 14ZZX(2) provides the discloser
with qualified privilege in respect of the disclosure. This means that the
whistleblower is not, in the absence of malice, liable to an action for
defamation in respect of the disclosure.[113]
It also provides that a contract to which the discloser is a party must not be
terminated on the basis that the disclosure constitutes a breach of contract. This
provision appears to differ to the Corporations Act and the PID Act.
The revised Part 9.4AAA in the Corporations Act does not include a
provision dealing with privilege and the PID Act provides absolute
privilege.[114]
Victimisation
Proposed section 14ZZY deals with the offence of victimisation
of a whistleblower or another person in relation to the making of a protected
disclosure.
Proposed subsection 14ZZY(1) provides that it is an
offence for a person (the victimiser) to victimise another person by engaging
in conduct that causes detriment, where the conduct is based on a belief or
suspicion that a person had made, may make, proposes to make or could make a
protected disclosure. The belief or suspicion about a disclosure or possible
disclosure must be part of the reason for the victimising conduct but does not
have to be the only reason.
Proposed subsections 14ZZY(2) and (3) create a similar
offence in relation to threats to cause detriment to the whistleblower or other
person. The threat may be express or implied, conditional or unconditional.
The definition of detriment (proposed subsection 14ZZY(5))
is identical to the equivalent provision proposed in the Corporations Act.[115]
The maximum penalty for these offences is two years
imprisonment and/or 120 penalty units ($25,200).[116]
Comment
By way of comparison, unlike the Corporations Act,
victimisation in proposed section 14ZZY is a criminal offence but is not
a civil penalty provision.[117]
In explaining the equivalent victimisation provision in
the Corporations Act the Explanatory Memorandum states that it ensures
that the regulator can choose to prosecute contravention as an offence or as a
civil penalty, as appropriate in the particular circumstances.[118]
There is no equivalent explanation for why the victimisation provision in proposed
section 14ZZY in the TA Act does not include a choice of either an
offence or a civil penalty.
Compensation and remedies
Proposed sections 14ZZZ and 14ZZZA deal with compensation
and remedies for whistleblowers. They essentially replicate the equivalent
provisions in Part 1 of Schedule 1 dealing with the corporate sector.[119]
Proposed subsection 14ZZZ(1) provides that a
whistleblower or other individual who is victimised can seek compensation for
loss, damage or injury suffered because of the conduct of a person (the
victimiser), where the victimiser engages in conduct that causes or threatens
to cause any detriment to another person:
- believing
or suspecting that a person made, may have made, proposes to make or could make
a qualifying disclosure and
- the
belief or suspicion is the reason, or part of the reason, for the conduct.
Under proposed subsection 14ZZZ(2) compensation can
also be sought in relation to victimisation by body corporates and their
officers and employees.
Proposed section 14ZZZA provides that in such
proceedings, the court may make a range of orders including amongst others an
order requiring the victimiser to compensate the person for loss, damage or
injury suffered as a result of victimising conduct.
If satisfied the victimising conduct occurred in
connection with the person’s position as an employee, the court may require the
victimiser and his/her employer each or jointly to compensate the person who
suffered the detriment or any other person for loss, damage or injury.
Proposed subsection 14ZZZA(2) provides that the
person seeking the order for compensation bears the onus of adducing or
pointing to evidence that suggests a reasonable possibility that the other
person has engaged in conduct that has caused detriment or constitutes a threat
of detriment. If that onus is discharged, the other person bears the onus of
proving the claim is not made out.
Under proposed subsection 14ZZZA(3) the court must
not make an order against the victimiser’s employer if the employer took
reasonable precautions and exercised due diligence, to avoid the victimising
conduct.
The section also provides other remedies in relation to
victimisation including court orders granting injunctions, apologies, exemplary
damages and any orders the court considers appropriate. The court also has the
power to order reinstatement where a person has been dismissed from their
employment because they, or another person, made a protected disclosure.
In matters arising in court proceedings under proposed
section 14ZZZA, proposed section 14ZZZC provides a person claiming
compensation cannot be ordered to pay costs of the other party unless:
- the
court is satisfied that the claimant instituted the proceedings vexatiously or
without reasonable cause, or
- the
court is satisfied that the claimant’s unreasonable act or omission caused the
other party to incur the costs (proposed subsection 14ZZZC(3)).
Interaction between civil
proceedings and criminal offences
Proposed section 14ZZZD is a clarifying provision
dealing with the interaction between civil proceedings and criminal offences.
It provides that a person may bring civil proceedings for compensation or other
remedial orders under section 14AZZA even if no prosecution for victimisation
has been brought or if such a prosecution cannot be brought under section 14ZZY.
Unlike the equivalent provision in Part 1, the provision does not provide that
a breach of the victimisation provision can be a civil penalty provision. The
Explanatory Memorandum does not explain why the provision differs in this
respect.
Proposed section 14ZZZB provides that if a person
(the discloser) makes a qualifying disclosure, the discloser or any other
person is not required to disclose personal identifying information in court
proceedings except where necessary for the purposes of proposed Part IVD or
where the court or tribunal thinks it necessary in the interests of justice to
do so. It essentially replicates the equivalent amendment in the Corporations
Act.[120]
Part 3—Other amendments
Part 3 of Schedule 1 to the Bill contains
consequential amendments that would remove the existing whistleblower
protection regimes from the Banking Act, the Insurance Act, the Life
Insurance Act, and the Superannuation Industry (Supervision) Act.
These regimes have been consolidated in the amendments to the Corporations
Act contained in Part 1.
Concluding comments
There is a general consensus that current private sector
protection of whistleblowers is piecemeal, inadequate and in urgent need of
reform.
The Bill proposes a range of significant amendments that are
considered essential features of best practice whistleblowing legislation.
Based broadly on the RO Act regime, it includes enhanced provisions that
would allow anonymous disclosures, extend the scope of eligible whistleblowers,
provide stronger protection and compensation provisions for victims, allow
emergency external disclosures (although to a very limited degree), require larger
companies to have strong whistleblower policies, and introduce for the first
time a tax whistleblower protection regime.
However, as has been identified by key stakeholders, there
is disappointment that the Bill fails to take up some of the key
recommendations of the recent PJC Report into private sector whistleblowing. In
particular the Bill does not provide for a single comprehensive private sector
scheme, it does not create a Whistleblower Protection Authority and it does not
include a rewards or bounty system. The Government has indicated that its
recently appointed Expert Advisory Panel on Whistleblower Protections will
address the full set of PJC Report recommendations at a later date.
A question for the Parliament in considering this
legislation might be: should the Bill in its current form be passed and then at
a later stage introduce further amendments that might address the full set of PJC
recommendations? Or alternatively, should the legislation be postponed until a
more fully comprehensive whistleblower reform package is prepared, that is assuming
that the Government would accept the PJC recommendations?
As has been frequently noted, whistleblower protection provisions
can be strong ‘on paper’ but meaningless in practice unless whistleblowers feel
confident that the right support is available to protect them. Arguably, the
key PJC recommendations omitted from the Bill are features that would make a
difference in providing greater protection for whistleblowers and would also
motivate companies to improve internal whistleblower reporting systems and to
deal more proactively with illegal behaviour.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Depending on the context, the Bills Digest uses the terms
‘whistleblower’ and ‘discloser’.
[2]. Australian
Lawyers Alliance, Submission
to Parliamentary Joint Committee on Corporations and
Financial Services, Inquiry into whistleblower protections in the corporate,
public and not-for-profit sectors, [submission no. 58], February 2017, p.
4.
[3]. Parliamentary
Joint Committee on Corporations and Financial Services, Whistleblower protections, Report, The
Senate, Canberra, 13 September 2017, p. 5.
[4]. P
Latimer and A J Brown, ‘In
whose interest? The need for consistency in to whom, and about whom, Australian
public interest whistleblowers can make protected disclosures’, Deakin
Law Review, 12(2), 2007, p. 7.
[5]. For
further background on the PID Act see: M Neilsen, Public
Interest Disclosure Bill 2013, Bills digest, 125,
2012–13, Parliamentary Library, Canberra, 2013.
[6]. Subsection 26(1) of the PID Act.
[7]. Ibid.
[8]. Ibid.
[9]. Section 10 of the PID Act.
[10]. Ibid., section 29.
[11]. P
Moss, Review
of the Public Interest Disclosure Act 2013, Independent review,
Secretariat support by the Department of Prime Minister and Cabinet, 15 July
2016.
[12]. Ibid., pp. 6–7.
[13]. Ibid., pp. 7–8.
[14]. The
Bills Digest does not consider these Acts but a short overview is available in
the 2016 Treasury paper Review
of tax and corporate whistleblower protections in Australia,
Consultation paper, Commonwealth of Australia, 20 December 2016.
[15]. Paragraph
1317AA(1)(a) of the Corporations Act 2001.
[16]. Paragraph 1317AA(1)(b) of the Corporations Act 2001.
[17]. Paragraph
1317AA(1)(c) of the Corporations Act 2001.
[18]. Paragraphs
1317AA(1)(d)–(e) of the Corporations Act 2001, Similar protections are
available to a whistleblower in possession of information relating to
contraventions of banking, insurance and superannuation legislation, under the Banking
Act, the Insurance Act, the Life Insurance Act and the Superannuation
Industry (Supervision) Act.
[19]. See
definitions of Corporations legislation, this Act
and ASIC Act at section 9 of the Corporations Act 2001.
[20]. The
Fair Work (Registered Organisations) Amendment Act 2016 amended Part IVA – Protected Disclosures in
the RO Act.
[21]. The
Agreement was tabled in the Senate on 21 November 2016. It is set out in Parliamentary Joint Committee
on Corporations and Financial Services, Whistleblower protections, op. cit., Appendix 5.
[22]. Paragraph
337A(1)(b) and definition of disclosable conduct in section 6 of
the Fair Work (Registered Organisations) Act 2009.
[23]. Subsection
337A(2) of the Fair Work (Registered Organisations) Act 2009.
[24]. Section
337BA of the Fair Work (Registered Organisations) Act 2009.
[25]. Section
337BB of the Fair Work (Registered Organisations) Act 2009.
[26]. Section
337BE of the Fair Work (Registered Organisations) Act 2009. Under
section 4AA of the Crimes
Act 1914 a penalty unit is currently equal to $210.
[27]. M Grattan, ‘Deal on whistleblowers wins first double-dissolution bill’, The
Conversation, 22 November 2016.
[28]. A
J Brown, (Program Leader, Public Integrity and Anti Corruption, Centre for
Governance and Public Policy, Griffith University), Evidence
to Parliamentary Joint Committee on Corporations and Financial
Services, Inquiry into whistleblower protections in the corporate, public
and not-for-profit sectors, 23 February 2016, p. 18. Details of the PJC
inquiry are available on the Committee’s homepage.
[29]. Ibid.
[30]. ‘The Agreement struck between NXT and the Government during
the passage of the Fair Work (Registered Organisations) Amendment Bill 2014’.
Set out in: Parliamentary Joint Committee on Corporations and Financial
Services, Whistleblower protections, op. cit., Appendix 5.
[31]. Ibid.
[32]. These include: Parliamentary Joint Committee on
Corporations and Financial Services, Whistleblower protections, op. cit.;
Senate Standing Committee on Economics, Final report: Performance of the Australian Securities and Investments
Commission, The Senate, Canberra, June 2014;
Treasury, Review of tax and corporate whistleblower protections in Australia consultation paper, op. cit; Moss, Review
of the Public Interest Disclosure Act 2013, op. cit; A J Brown and S
Lawrence, Strength
of organisational whistleblowing processes – Analysis from Australia: further
results: whistling while they work 2: survey of organisational processes &
procedures 2016, Griffith University, 2017.
[33]. V
Brand, S Lombard and J Fitzpatrick, ‘Bounty hunters, whistleblowers and a new regulatory paradigm’, Australian Business Law Review, 41, 1 October 2013, p.
297.
[34]. Ibid.
[35]. S
Wolfe, M Worth, S Dreyfus and A J Brown, Whistleblower
protection laws in G20 countries: priorities for action, Final
report, [Blueprint for Free Speech], 2014, pp. 24–5.
[36]. Ibid.
[37]. A
Brown and S Lawrence, Strength
of organisational whistleblowing processes – Analysis from Australia: further
results: whistling while they work 2: survey of organisational processes &
procedures 2016, op. cit. Quoted in the report by the Parliamentary
Joint Committee on Corporations and Financial Services, Whistleblower protections, op. cit., pp. 21–2.
[38]. Details
of the inquiry are available on the Committee’s homepage.
[39]. S
Wolfe, M Worth, S Dreyfus and A J Brown, Breaking
the silence : strengths and weaknesses in G20 whistleblower protection laws,
October 2015; Parliamentary Joint Committee on Corporations and Financial
Services, Whistleblower protections, op. cit., p. ix.
[40]. See
also Parliamentary Joint Committee on Corporations and Financial Services, Whistleblower protections, op. cit., p. 97.
[41]. Ibid., pp. xiii—xx.
[42]. Ibid.,
p. 138.
[43]. Ibid.,
p. 138 and Recommendations 11 and 11.2. Arguments against rewards include the
possibility of encouraging a litigation culture.
[44]. The Minister for Finance, Senator Mathias Cormann, when releasing
the Open Government National Action Plan 2016-2018 stated that
the Plan contains 15 ambitious commitments focused on:
transparency and accountability in business; open data and digital
transformation; access to government information; integrity in the public
sector; and public participation and engagement. Australian Government,
Department of Prime Minister and Cabinet Australia's
first open Government national action plan 2016–18, December 2016.
[45]. Ibid.,
p. 12.
[46]. K O’Dwyer (Minister for Revenue and Financial
Services), Consultation on Whistleblowers Bill 2017, media release, 23 October 2017. The Exposure Draft Bill and
consultation paper are available on the Treasury’s website.
[47]. Ibid.
[48]. K O’Dwyer (Minister for Revenue and Financial
Services), Expert advisory panel on whistleblower protections, media release,
28 September 2017. The panel members are: Professor
A J Brown, Dr David A Chaikin, Mr Michael Croker and Mr John Nguyen.
[49]. K O’Dwyer, Consultation on Whistleblowers Bill 2017, op. cit.
[50]. Ibid.
[51]. Parliamentary
Joint Committee on Corporations and Financial Services, Whistleblower protections, op. cit., pp. xiii, xvii and
xviii.
[52]. Australia,
Senate, Journals,
83, 2016–18, p. 2634; Senate Selection of Bills Committee, Report,
1, 2018, The Senate, Canberra, 8 February 2018.
[53]. Senate
Standing Committee on Economics, Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017, The Senate, Canberra, March 2018, p. 28.
[54]. Ibid., Additional comments by Labor Senators, p. 29.
[55]. Ibid.
p. 37.
[56]. Ibid.,
Additional comments by Greens Senators, p. 39.
[57]. Ibid., p. 40.
[58]. Ibid.,
Senator Rex Patrick’s dissenting report, p. 43.
[59]. Senate
Scrutiny of Bills Committee, Scrutiny
digest, 1, 2018, The Senate, 7 February 2018, p. 101.
[60]. Senate
Scrutiny of Bills Committee, Scrutiny
digest, 3, 2018, The Senate, 21 March 2018, p. 312.
[61]. Ibid.,
p. 313.
[62]. Senate
Scrutiny of Bills Committee, Scrutiny
digest, 1, op. cit., p. 102.
[63]. Ibid.,
p. 103.
[64]. Senate
Scrutiny of Bills Committee, Scrutiny
digest, 3, op. cit., p. 315.
[65]. Ibid.,
p. 316.
[66]. Explanatory
Memorandum, Treasury Laws Amendment (Enhancing
Whistleblower Protections) Bill 2017, p. 3.
[67]. Ibid.,
p. 5.
[68]. The
Statement of Compatibility with Human Rights can be found at pages 87–90 of the
Explanatory
Memorandum to the Bill.
[69]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 1, 6 February 2018, p. 78.
[70]. Commonwealth
Ombudsman, Submission
to the Treasury,
Treasury Laws Amendment (Enhancing Whistleblower
Protections) Bill 2017: exposure draft, 7 November 2017, pp. 1–2.
[71]. Ibid.,
p. 2.
[72]. Transparency
International Australia, Submission
to the Senate Economics Legislation Committee inquiry into the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill
2017, 26 February 2018, [submission no. 28], pp. 1 and 3; Transparency
International Australia, Submission
to the Treasury, Treasury Laws Amendment (Enhancing
Whistleblower Protections) Bill 2017: exposure draft, 6
November 2017, p. 1.
[73]. Transparency
International Australia, Submission
to the Senate Economics Legislation Committee inquiry into the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill
2017, op. cit., p. 3; Transparency International Australia, Submission
to the Treasury, op. cit., p. 1.
[74]. Ibid.,
p. 2.
[75]. Ibid.
[76]. Law
Council of Australia, Submission
to the Senate Economics Legislation Committee inquiry into the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill
2017, 26 February 2018, [submission no. 32], 1 March 2018, p. 1
[77]. Law
Council of Australia, Submission
to the Treasury,
Treasury Laws Amendment (Enhancing Whistleblower
Protections) Bill 2017: exposure draft, 6 November 2017, p. 5.
[78]. Law Council of Australia, Submission
to the Senate Economics Legislation Committee inquiry into the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill
2017, op cit., p. 2.
[79]. Ibid.
[80]. A
J Brown, Evidence,
op. cit., p. 18.
[81]. A J Brown, Submission
to the Senate Economics Legislation Committee inquiry into the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill
2017, 26 February 2018, 25 February 2018, p. 1.
[82]. Ibid., pp. 5–10.
[83]. Explanatory
Memorandum, Treasury Laws Amendment (Enhancing
Whistleblower Protections) Bill 2017, p. 22.
[84]. Subsection
1317AA(1)(c) of the Corporations Act.
[85]. Explanatory
Memorandum, Treasury Laws Amendment (Enhancing
Whistleblower Protections) Bill 2017, p. 24.
[86]. Ibid.
[87]. A
NOHC of a body corporate is a body corporate: of which the first body corporate
is a subsidiary; that does not carry on a business (other than a business
consisting of the ownership or control of other bodies corporate); and is
incorporated in Australia. See definition in subsection 5(1) of the Banking
Act.
[88]. Explanatory
Memorandum, Treasury Laws Amendment (Enhancing
Whistleblower Protections) Bill 2017, p. 27.
[89]. Ibid.,
p. 28.
[90]. Transparency
International Australia, Submission
to the Treasury, op. cit., p. 3.
[91]. Ibid.
[92]. Ibid.
[93]. Ibid.
[94]. Insurance Council of Australia, Submission
to the Treasury,
Treasury Laws Amendment (Enhancing Whistleblower
Protections) Bill 2017: exposure draft, 3 November 2017, p. 2.
[95]. Australian
Bankers Association, Submission
to the Treasury,
Treasury Laws Amendment (Enhancing Whistleblower
Protections) Bill 2017: exposure draft, 6 November 2017, p. 3.
[96]. Law
Council of Australia, Submission
to the Treasury, op. cit., p. 8.
[97]. Existing
section 1317AE deals with confidentiality requirements and is to be repealed by
item 9.
[98]. Generally,
where a burden of proof is placed on a defendant it is an evidential burden
only (Criminal Code Act 1995, subsection 13.3(1)). The evidential burden
can be discharged by the defendant adducing or pointing to evidence suggesting
there was a reasonable possibility that a matter existed or did not exist (Criminal
Code, subsection 13.3(6)). The effect of imposing an evidential burden on a
defendant is to defer the point in time at which the prosecution must discharge
its legal burden to disprove the exemption. That is, if the defendant
discharges his or her evidential burden, only then is the prosecution required
to negate the existence of the exemption beyond reasonable doubt.
[99]. Law
Council of Australia, Submission
to the Treasury, op. cit., p. 11.
[100]. Explanatory
Memorandum, Treasury Laws Amendment (Enhancing
Whistleblower Protections) Bill 2017, p. 32.
[101]. See
subsection 337BA(2) of the Fair Work
(Registered Organisations) Act 2009.
[102]. Explanatory
Memorandum, Treasury Laws Amendment (Enhancing
Whistleblower Protections) Bill 2017, p. 33.
[103]. Ibid.,
p. 38.
[104]. Brown,
Evidence,
op. cit., p. 26.
[105]. Herbert
Smith Freehills, Submission
to the Treasury, Treasury Laws Amendment (Enhancing Whistleblower
Protections) Bill 2017: exposure draft, 3 November 2017, p. 2; Herbert
Smith Freehills, Submission
to the Senate Economics Legislation Committee inquiry into the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill
2017, 23 February 2018, [submission no. 14], 1 March 2018, p. 6.
[106]. Under section 45A of the Corporations Act, a proprietary company
is defined as large for a financial year if it satisfies at least two of the
following paragraphs:
·
the consolidated revenue for the financial year of
the company and any entities it controls is $25 million or more
·
the value of the consolidated gross assets at the
end of the financial year of the company and any entities it controls is $12.5
million or more, and
·
the company and any entities it controls have 50 or
more employees at the end of the financial year.
[107]. Explanatory
Memorandum, Treasury Laws Amendment (Enhancing
Whistleblower Protections) Bill 2017, p. 65; Australian Government, Budget
measures: budget paper no. 2: 2016–17, 2016, p. 32.
[108]. The
Explanatory Memorandum explains that an associate of the entity is defined
broadly in section 318 of the Income Tax
Assessment Act 1936. It would include for example shareholders of
a company and beneficiaries or unitholders of a trust. Ibid., p. 70.
[109]. See
section 960-100 of the ITAA97, Explanatory
Memorandum, Treasury Laws Amendment (Enhancing
Whistleblower Protections) Bill 2017, p. 69.
[110]. Law
Council of Australia, Submission
to the Treasury, op. cit., p. 8.
[111]. Explanatory
Memorandum, Treasury Laws Amendment (Enhancing
Whistleblower Protections) Bill 2017, pp. 73–4.
[112]. Under section 4AA of the Crimes Act 1914,
a penalty unit is equivalent to $210.
[113]. Explanatory
Memorandum, Treasury Laws Amendment (Enhancing
Whistleblower Protections) Bill 2017, p. 78.
[114]. Subsection
10(2) of the PID Act.
[115]. See
proposed subsection 1317AC(6) of the Corporations Act, at item
8 of the Bill.
[116]. Under section 4AA of the Crimes Act 1914,
a penalty unit is equivalent to $210.
[117]. See
above at p. 22 of the Bills Digest. Item 10 amends subsection 1317E(1)
of the Corporations Act with the effect of creating a civil penalty
provision to address victimisation of a person in relation to a qualifying
disclosure. Item 6 adds notes to section 1317AC clarifying that the
prohibitions on victimisation can be either offence or civil penalty
provisions.
[118]. Explanatory
Memorandum, Treasury Laws Amendment (Enhancing
Whistleblower Protections) Bill 2017, p. 33.
[119]. See
proposed sections 1317AD and 1317AE of the Corporations Act,
at item 9 of the Bill.
[120]. See
proposed section 1317AG of the Corporations Act, at item 9
of the Bill.
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