Revised Explanatory Memorandum(Circulated by authority of the Assistant Treasurer, the Hon. Stuart Robert MP)
Chapter 5 Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2018
5.1 This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act .
5.2 Schedule 1 to this Bill amends the TAA 1953 and the Corporations Act to introduce new tax whistleblower protections and amend the corporate whistleblower protections.
5.3 The Bill amends the TAA 1953 to implement the Government's 2016-17 Budget announcement on introducing better protections for individuals who disclose information to the ATO on tax avoidance behaviour and other tax issues in order to strengthen the integrity of Australia's tax system.
5.4 The Bill also amends the Corporations Act to respond to recent independent reviews of the corporate sector whistleblowing provisions, the Senate Economics Reference Committee's 2014 inquiry into the Performance of the Australian Securities and Investment Commission and as part of the Government's commitment to the Open Government National Action Plan.
5.5 Where the new law applies it will:
- broaden the scope of individuals eligible for protection;
- allow for anonymous disclosures;
- provide protections to the identity of tax and corporate whistleblowers;
- broaden the scope of persons eligible to receive a whistleblower disclosure; and
- improve access to compensation or other remedies as a result of victimisation following a whistleblower disclosure.
Human rights implications
5.6 This Bill engages the following human rights:
- The right to freedom of opinion and expression - article 19 of the ICCPR;
- The right to a fair hearing - article 14 of the ICCPR; and
- The right not to be subjected to arbitrary or unlawful interference - article 17 of the ICCPR.
The right to freedom of opinion and expression
5.7 The amendments would engage the right to freedom of opinion and expression as contained in article 19 of the ICCPR.
5.8 Amongst other things, article 19 states that individuals must have the 'freedom to seek, receive and impart information and ideas of all kinds'. Under article 19(3), the right to freedom of expression may be subject to limitations that are necessary to protect the rights or reputations of others, national security, public order, or public health or morals. Limitations prescribed by law, must pursue a legitimate objective, be rationally connected to the achievement of that objective and a proportionate means of doing so.
5.9 The amendments in this Bill restrict the right to disclose the identity of a whistleblower. This restriction is common to existing whistleblower protection regimes in Australia and internationally. It is necessary to reduce the risks and detriment suffered by individuals who expose wrongdoing. The restrictions are proportional to those risks, and to the importance whistleblowers play in exposing wrongdoing that may otherwise not be identified by management of an entity or by regulatory authorities.
The right to a fair hearing
5.10 Article 14 of the ICCPR provides that all persons shall be equal before the courts and tribunals. Further, in the determination of an individual's rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. This requires that each party be given the opportunity to contest the arguments and evidence adduced by the other party.
5.11 The amendments in this Bill engage this right by ensuring that the identity of a whistleblower, which is protected for the reasons described above, cannot be exposed by means of court processes such as discovery of documents or subpoena. Without this additional protection individuals may be deterred from exposing wrongdoing within their organisations or to regulators, for fear of their identity being disclosed, for example, in a prosecution of the wrongdoer.
5.12 The amendments in this Bill provide that a person shall not be required:
- to disclose to a court or tribunal
- the identity of the whistleblower, or
- information that is likely to lead to the identity of the whistleblower; or
- to produce to a court or tribunal a document containing:
- the identity of the whistleblower; or
- information that is likely to lead to the identification of the whistleblower;
- except where:
- it is necessary to do so for the purposes of giving effect to the whistleblower protection regimes amended and created by the amendments in this Bill; or
- the court thinks it necessary in the interests of justice to do so.
5.13 The amendments make provision for a court or tribunal to order disclosure of a whistleblower' identity if it this is necessary in the interests of justice. This ensures that the restriction can be balanced with the interests of justice.
5.14 The provisions ensuring that a whistleblower's identity person cannot be required to be disclosed in legal proceedings are designed to protect individuals who disclose wrongdoing from risk and detriment, and are appropriate and proportional to the objects of the amendments made by this Bill.
The right not to be subjected to arbitrary or unlawful interference
5.15 Article 17 of the ICCPR provides that:
- No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
- Everyone has the right to the protection of the law against such interference or attacks.
5.16 The amendments made by this Bill enhance the protection of individuals from arbitrary or unlawful interference with their privacy, family, home and correspondence, and from unlawful attacks on their honour and reputation. Such interference and attacks have been identified by numerous reviews as common responses to the disclosure of wrongdoing, and it is the object of the amendments to enhance protection from this harm.
5.17 This Bill is compatible with human rights and the amendments made by it that human rights issues are appropriate and proportional to the object of protecting individuals who disclose wrongdoing.