Combating corporate crime – the Whistleblower Protection Bill

10 Aug Combating corporate crime – the Whistleblower Protection Bill

Whistleblowers play an important role in exposing illegal conduct and unethical practice in private organisations but are subject to potential reprisals as a result. The Federal Government has recently released an exposure draft of the Treasury Laws Amendment (Whistleblowers) Bill 2017. The purpose of this bill is to strengthen and consolidate existing legislative whistleblower protections in Federal legislation such as the Corporations Act 2001, Tax Administration Act 1953, Banking Act 1959, Insurance Act 1973, Life Insurance Act 1995 and the Superannuation Industry (Supervision) Act 1993.

The Bill provides that an ‘eligible whistleblower’ can make a protected disclosure in relation to a whistleblower regulated entity, which is basically any corporation. An eligible whistleblower includes the following:

1. An officer of the entity;
2. An employee of the entity;
3. An individual or an employee of an individual who has a contract for the supply of services and goods to the entity;
4. An associate of the entity;
5. An individual who is a trustee, if the entity is a superannuation entity;
6. A spouse, child or dependent of an individual mentioned above

The conduct that qualifies as an ‘eligible disclosure’ will be extended to include, misconduct or an improper state of affairs or circumstances, an offence against any law of the Commonwealth punishable by at least one year imprisonment as well as conduct that constitutes an offence against, or is in contravention of:

1. The Corporations Act 2001;
2. The ASIC Act 2001;
3. The Banking Act 1959;
4. The Financial Sector (Collection of Data) Act 2001;
5. The Insurance Act 1973;
6. The National Consumer Credit Protection Act 2009; or
7. The Superannuation Industry (Supervision) Act 1993

Offences against Commonwealth law punishable by one year imprisonment or more can include:

1. Fraud under s908DC of the Corporations Act 2001;
2. Incorrectly keeping records with the intention of misleading or deceiving under s8T of the Tax Administration Act 1953;
3. Commercial-scale infringement prejudicing a copyright owner under s132AC of the Copyright Act 1968;
4. Contravening a cartel provision under s79 of the Competition and Consumer Act 2010

An eligible disclosure must be made to an ‘eligible disclosee’. An eligible disclosee includes:

1. The Australian Securities Investments Commission (ASIC);
2. The Australian Prudential Regulation Authority (APRA);
3. A member of the Australian Federal Police;
4. An officer of a corporation; or
5. An auditor of a corporation

The Bill also provides that if a discloser has made a disclosure to an eligible disclosee and a reasonable period has passed since that disclosure, the discloser can, if no action has been taken, report the information to a member of the Parliament of the Commonwealth, a State or Territory, or a journalist.

The Bill requires that public companies, large proprietary companies with a revenue of $25 million or more and proprietary companies that are trustees of registrable superannuation entities are to have a whistleblower policy that states the protections the company will offer to a whistleblower.

An eligible whistleblower who is victimised or sacked as a result of their disclosure can apply to the court for a remedy. These remedies can be civil or criminal and can include compensation, reinstatement, an apology or injunctive relief.

The Bill is expected to pass into law in early 2019.

If you require any further information please contact Grant Hansen Email: ghansen@harrisco.com.au