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July 1, 2013

Protection for Commonwealth whistleblowers

The Public Interest Disclosure Bill 2013 has been passed by both Houses and is awaiting Royal Assent.

The Bill provides protection for current or former Commonwealth public officials who make qualifying public interest disclosures under the scheme.

A public interest disclosure is a disclosure of information, by a public official, that is:
• a disclosure within the government, to an authorised internal recipient or a supervisor, concerning suspected or probable illegal conduct or other wrongdoing (“disclosable conduct”); or
• a disclosure to anybody, if an internal disclosure of the information has not been adequately dealt with, and if wider disclosure satisfies public interest requirements; or
• a disclosure to anybody if there is substantial and imminent danger to health or safety; or
• a disclosure to an Australian legal practitioner for purposes connected with the above matters.

However, there are limitations to take into account the need to protect intelligence information.

A person who makes a public interest disclosure is not subject to any civil, criminal or administrative liability for making the disclosure. Also no contractual or other remedy may be enforced or sanction imposed on the basis of making the disclosure.

The discloser has absolute privilege for defamation proceeding in respect of a public interest disclosure and a contract to which the discloser is a party must not be terminated on the basis that the disclosure constitutes a breach of contract.

The penalty for the offences of taking a reprisal or threatening to take a reprisal against a person who has made a disclosure to 2 years imprisonment or 120 penalty units ($20,400) or both.

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Posted 1st July 2013 by David Jacobson in Whistleblowers, Workplace

March 22, 2013

Commonwealth whistleblowers bill

The Government has introduced the Public Interest Disclosure Bill 2013 into the House of Representatives.

The provisions of the Bill:

  • 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.

The Senate Legal and Constitutional Affairs Legislation Committee has an inquiry into the Bill.

More on whistleblowers

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Posted 22nd March 2013 by David Jacobson in Risk Management, Whistleblowers

October 5, 2012

How does ASIC deal with misconduct reports?

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.

Brochure: How ASIC deals with reports of misconduct
Reporting misconduct online material

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:

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Posted 5th October 2012 by David Jacobson in Corporations Act, Whistleblowers

August 31, 2012

ACCC uses video against cartels

The ACCC is promoting its anti-cartel campaign by releasing The Marker video.

The short video (about 16 mins) seeks to portray a person who becomes a whistleblower (and gets an immunity "marker").

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Posted 31st August 2012 by admin in Trade Practices, Whistleblowers

October 24, 2009

Corporate whistleblowers options paper released

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)

Issues include:

  • 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.

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Posted 24th October 2009 by David Jacobson in Corporations Act, Financial Services, Whistleblowers

August 6, 2008

ALRC to review government secrecy laws

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.

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Posted 6th August 2008 by David Jacobson in Privacy, Whistleblowers

July 8, 2008

ASIC v Dawson: no access to Multiplex whistleblower documents

In ASIC v P Dawson Nominees Pty Limited [2008] 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 settled an action relating to continuous disclosure breaches by Multiplex in December 2006.

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)[2008] 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 .

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Posted 8th July 2008 by David Jacobson in Corporations Act, Whistleblowers

April 8, 2007

Queensland Whistleblowers Protection Act amended

The Whistleblowers (Disclosure to Member of Parliament) Amendment Act 2007 has been passed by the Queensland Parliament.

It will commence on a date to be proclaimed.

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.

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Posted 8th April 2007 by David Jacobson in Whistleblowers

Whistleblowers in Australia

As I've published a number of notes on whistleblowers it's appropriate to collect them here and add a new category:

Queensland Whistleblowers Protection Act to be amended
(November 2006)

Public sector whistleblowing in Australia (November 2006)

Organisation culture and whistleblowers (September 2005)

How do you respond to a whistleblower? (November 2004)

Whistleblowers (August 2004)

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Posted 8th April 2007 by David Jacobson in Compliance, Corporate Governance, Whistleblowers