establish a framework to encourage and facilitate reporting of wrongdoing by public officials in the Commonwealth public sector;
ensure that Commonwealth agencies properly investigate and respond to public interest disclosures; and
provide protections to public officials who make qualifying public interest disclosures.
The Bill will not protect disclosures made before commencement. However, once the measures in the Bill have commenced, a public official will be able to make a public interest disclosure in relation to conduct which occurred before or after commencement.
Principal officers of agencies are obliged to investigate a disclosure unless there is a basis for not doing so under certain grounds. An investigation must be completed within 90 days after being allocated to an agency, although this period may be extended by the Ombudsman if considered appropriate. A principal officer is obliged to notify a discloser who is readily contactable of certain matters relating to the handling of a disclosure, so that disclosers are kept informed of the status of their disclosures and what actions, if any, are proposed to be taken to address their concern.
The Bill provides broad protections for a public official who has made a qualifying public interest disclosure within the terms of the legislation. In addition to providing immunity from criminal, civil and administrative liability for making a public interest disclosure as defined in the Bill, the Bill would make it an offence for a person to take reprisal action against any person as a result of a person making, or proposing to make, a public interest disclosure.
The Bill has already been criticised for not allowing complaints to be lodged against ministers or for making provision for those in the intelligence community or for political staffers to be protected when they disclose wrongdoing to the media.
ASIC has released information about its approach to handling tip-offs, complaints, information of concern and reports of misconduct, to assist the public.
Each year, ASIC receives over 20,000 reports of misconduct from liquidators, auditors, financial service providers and the general public which are all received, acknowledged, analysed, assessed and recorded by ASIC’s national Misconduct and Breach Reporting Team.
While all information received by ASIC is recorded and assessed, not every matter referred for further consideration will result in an investigation.
ASIC weighs every report of misconduct against four key questions:
What is the extent of harm or loss?
What are the benefits of pursuing the misconduct?
How do other issues, like the type and seriousness of the misconduct and the evidence available, affect the matter?
Is there an alternative course of action?
ASIC has released five information sheets covering:
The Minister for Financial Services, Superannuation and Corporate Law, the Hon Chris Bowen MP, has released an options paper exploring strategies for improving protections for corporate whistleblowers.
Currently, corporate whistleblowers are protected under Part 9.4AAA of the Corporations Act 2001. (section 1317AA)
who is allowed to qualify for protection as a whistleblower – former employees, for example, currently do not qualify;
what types of issues can be disclosed under the protections – some matters which ASIC can investigate cannot currently be the subject of a protected disclosure;
whether motive should affect protection – currently an individual with malicious motives cannot be protected even if the information they disclose is genuine;
whether anonymity should affect protection – many whistleblowers may wish to be anonymous, but if they do not disclose their name from the start then, should they later need to come forward, such as to give evidence, they cannot be protected;
when can a Court can order the production of documents which reveal a whistleblower’s identity – there is concern that whistleblowers will be discouraged from coming forward unless there is further guidance on this issue;
what confidentiality restrictions should apply to those receiving disclosures second-hand – there may be a loophole in post-disclosure confidentiality protections; and
whether prospective whistleblowers should be protected for seeking legal advice – this may encourage more whistleblowers to come forward by providing greater certainty in relation to how the law operates.
Several of the potential reforms also relate to the whistleblower protections provided by the banking and insurance prudential legislation.
The closing date for submissions is 21st December 2009.
The Australian Law Reform Commission (ALRC) has been requested by the Commonwealth Attorney-General, the Hon Robert McClelland MP, to review secrecy provisions in federal legislation.
The Terms of Reference ask the ALRC to focus on:
• ‘the importance of balancing the need to protect Commonwealth information and the public interest in an open and accountable system of government’; • ‘the increased need to share information within and between governments, and with the private sector’; and • achieving more ‘comprehensive, consistent and workable laws and practices in relation to the protection of Commonwealth information’.
Federal legislation currently contains a large number of secrecy and confidentiality provisions that impose duties on public servants not to disclose information that comes to them by virtue of their office—and many of these provisions create serious criminal offences for unauthorised disclosure, whether or not that results in any harm to the national interest.
The ALRC’s first task is to map all of the secrecy and confidentiality provisions, which are found across a wide range of laws and regulations.
The ALRC will prepare one or more discussion documents for consultation, before providing its final report and recommendations to the Attorney-General by 31 October 2009.
In ASIC v P Dawson Nominees Pty Limited  FCAFC 123 the Full Federal Court upheld ASIC’s objection to produce
certain documents in relation to Multiplex Limited on the grounds of
public interest immunity, namely that it would reveal the identity of informers.
The Court decided that in the circumstances of this case, the documents in
question did not have sufficient importance for the
litigation to outweigh the importance of not disclosing the identity of
ASIC argued that when people come forward
to report matters to ASIC in confidence, their confidence should be
respected where that is in the public interest.
The decision varies from In Cadbury Schweppes Pty Ltd (ACN 004 551 473) v Amcor Limited (ACN 000 017 372) FCA
in which the Federal Court rejected the ACCC’s claim for legal
professional privilege and public interest immunity privilege in
relation to 111 witness statements drafted by ACCC investigators in
with the ACCC proceedings against Visy .
The Act amends the Whistleblowers Protection Act. It will allow a public officer to make a public interest disclosure to
a member of the Legislative Assembly who may refer it to the
appropriate public sector entity. The member has no role in
investigating the disclosure.