Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (10 of 2019)

Schedule 1   Amendments

Part 1   Amendment of the Corporations Act 2001

Corporations Act 2001

2   Section 1317AA

Repeal the section, substitute:

1317AA Disclosures qualifying for protection under this Part

Disclosure to ASIC, APRA or prescribed body

(1) A disclosure of information by an individual (the discloser ) qualifies for protection under this Part if:

(a) the discloser is an eligible whistleblower in relation to a regulated entity; and

(b) the disclosure is made to any of the following:

(i) ASIC;

(ii) APRA;

(iii) a Commonwealth authority prescribed for the purposes of this subparagraph in relation to the regulated entity; and

(c) subsection (4) or (5) applies to the disclosure.

Note: Section 1317AAD (public interest disclosure and emergency disclosure) and paragraph 1317AB(1)(c) (protection from self-incrimination etc.) may apply to a disclosure covered by this subsection.

Disclosure to eligible recipients

(2) A disclosure of information by an individual (the discloser ) qualifies for protection under this Part if:

(a) the discloser is an eligible whistleblower in relation to a regulated entity; and

(b) the disclosure is made to an eligible recipient in relation to the regulated entity; and

(c) subsection (4) or (5) applies to the disclosure.

Disclosure to legal practitioner

(3) A disclosure of information by an individual qualifies for protection under this Part if the disclosure is made to a legal practitioner for the purpose of obtaining legal advice or legal representation in relation to the operation of this Part.

Disclosable matters

(4) This subsection applies to a disclosure of information if the discloser has reasonable grounds to suspect that the information concerns misconduct, or an improper state of affairs or circumstances, in relation to:

(a) the regulated entity; or

(b) if the regulated entity is a body corporate - a related body corporate of the regulated entity.

(5) Without limiting subsection (4), this subsection applies to a disclosure of information if the discloser has reasonable grounds to suspect that the information indicates that any of the following:

(a) the regulated entity, or an officer or employee of the regulated entity;

(b) if the regulated entity is a body corporate - a related body corporate of the regulated entity, or an officer or employee of a related body corporate of the regulated entity;

has engaged in conduct that:

(c) constitutes an offence against, or a contravention of, a provision of any of the following:

(i) this Act;

(ii) the ASIC Act;

(iii) the Banking Act 1959;

(iv) the Financial Sector (Collection of Data) Act 2001;

(v) the Insurance Act 1973;

(vi) the Life Insurance Act 1995;

(vii) the National Consumer Credit Protection Act 2009;

(viii) the Superannuation Industry (Supervision) Act 1993;

(ix) an instrument made under an Act referred to in any of subparagraphs (i) to (viii); or

(d) constitutes an offence against any other law of the Commonwealth that is punishable by imprisonment for a period of 12 months or more; or

(e) represents a danger to the public or the financial system; or

(f) is prescribed by the regulations for the purposes of this paragraph.

Note: There is no requirement for a discloser to identify himself or herself in order for a disclosure to qualify for protection under this Part.

1317AAA Eligible whistleblowers

An individual is an eligible whistleblower in relation to a regulated entity if the individual is, or has been, any of the following:

(a) an officer of the regulated entity;

(b) an employee of the regulated entity;

(c) an individual who supplies services or goods to the regulated entity (whether paid or unpaid);

(d) an employee of a person that supplies services or goods to the regulated entity (whether paid or unpaid);

(e) an individual who is an associate of the regulated entity;

(f) for a regulated entity that is a superannuation entity:

(i) an individual who is a trustee (within the meaning of the Superannuation Industry (Supervision) Act 1993), custodian (within the meaning of that Act) or investment manager (within the meaning of that Act) of the superannuation entity; or

(ii) an officer of a body corporate that is a trustee, custodian or investment manager of the superannuation entity; or

(iii) an employee of an individual referred to in subparagraph (i) or a body corporate referred to in subparagraph (ii); or

(iv) an individual who supplies services or goods to an individual referred to in subparagraph (i) or a body corporate referred to in subparagraph (ii) (whether paid or unpaid); or

(v) an employee of a person that supplies services or goods to an individual referred to in subparagraph (i) or a body corporate referred to in subparagraph (ii) (whether paid or unpaid);

(g) a relative of an individual referred to in any of paragraphs (a) to (f);

(h) a dependant of an individual referred to in any of paragraphs (a) to (f), or of such an individual's spouse;

(i) an individual prescribed by the regulations for the purposes of this paragraph in relation to the regulated entity.

1317AAB Regulated entities

Each of the following is a regulated entity :

(a) a company;

(b) a corporation to which paragraph 51(xx) of the Constitution applies;

(c) an ADI (within the meaning of the Banking Act 1959), an authorised NOHC (within the meaning of that Act) or a subsidiary of an ADI or an authorised NOHC;

(d) a general insurer (within the meaning of the Insurance Act 1973), an authorised NOHC (within the meaning of that Act) or a subsidiary of a general insurer or an authorised NOHC;

(e) a life company (within the meaning of the Life Insurance Act 1995), a registered NOHC (within the meaning of that Act) or a subsidiary of a life company or a registered NOHC;

(f) a superannuation entity or a trustee (within the meaning of the Superannuation Industry (Supervision) Act 1993) of a superannuation entity;

(g) an entity prescribed by the regulations for the purposes of this paragraph.

1317AAC Eligible recipients

(1) Each of the following is an eligible recipient in relation to a regulated entity that is a body corporate:

(a) an officer or senior manager of the body corporate or a related body corporate;

(b) an auditor, or a member of an audit team conducting an audit, of the body corporate or a related body corporate;

(c) an actuary of the body corporate or a related body corporate;

(d) a person authorised by the body corporate to receive disclosures that may qualify for protection under this Part.

(2) Each of the following is an eligible recipient in relation to a regulated entity that is a superannuation entity:

(a) an officer of the superannuation entity;

(b) an auditor, or a member of an audit team conducting an audit, of the superannuation entity;

(c) an actuary of the superannuation entity;

(d) an individual who is a trustee (within the meaning of the Superannuation Industry (Supervision) Act 1993) of the superannuation entity;

(e) a director of a body corporate that is the trustee (within the meaning of the Superannuation Industry (Supervision) Act 1993) of the superannuation entity;

(f) a person authorised by the trustee or trustees (within the meaning of the Superannuation Industry (Supervision) Act 1993) of the superannuation entity to receive disclosures that may qualify for protection under this Part.

(3) The regulations may prescribe persons or bodies that are eligible recipients in relation to all regulated entities, or in relation to a class or classes of regulated entities.

(4) Subsections (1), (2) and (3) do not limit each other.

1317AAD Public interest disclosure and emergency disclosure

(1) A disclosure of information (the public interest disclosure ) by an individual (the discloser ) qualifies for protection under this Part if:

(a) the discloser has previously made a disclosure of that information (the previous disclosure ) that qualifies for protection under this Part under subsection 1317AA(1); and

(b) at least 90 days have passed since the previous disclosure was made; and

(c) the discloser does not have reasonable grounds to believe that action is being, or has been, taken to address the matters to which the previous disclosure related; and

(d) the discloser has reasonable grounds to believe that making a further disclosure of the information in accordance with this subsection would be in the public interest; and

(e) after the end of the period referred to in paragraph (b), the discloser gave the body to which the previous disclosure was made a written notification that:

(i) includes sufficient information to identify the previous disclosure; and

(ii) states that the discloser intends to make a public interest disclosure; and

(f) the public interest disclosure is made to:

(i) a member of the Parliament of the Commonwealth, the Parliament of a State or the legislature of a Territory; or

(ii) a journalist; and

(g) the extent of the information disclosed in the public interest disclosure is no greater than is necessary to inform the recipient referred to in paragraph (f) of the misconduct or the improper state of affairs or circumstances referred to in subsection 1317AA(4) or the conduct referred to in subsection 1317AA(5), as the case may be.

(2) A disclosure of information (the emergency disclosure ) by an individual (the discloser ) qualifies for protection under this Part if:

(a) the discloser has previously made a disclosure of that information (the previous disclosure ) that qualifies for protection under this Part under subsection 1317AA(1); and

(b) the discloser has reasonable grounds to believe that the information concerns a substantial and imminent danger to the health or safety of one or more persons or to the natural environment; and

(c) the discloser gives the body to which the previous disclosure was made a written notification that:

(i) includes sufficient information to identify the previous disclosure; and

(ii) states that the discloser intends to make an emergency disclosure; and

(d) the emergency disclosure is made to:

(i) a member of the Parliament of the Commonwealth, the Parliament of a State or the legislature of a Territory; or

(ii) a journalist; and

(e) the extent of the information disclosed in the emergency disclosure is no greater than is necessary to inform the recipient referred to in paragraph (d) of the substantial and imminent danger.

(3) In this section:

journalist means a person who is working in a professional capacity as a journalist for any of the following:

(a) a newspaper or magazine;

(b) a radio or television broadcasting service;

(c) an electronic service (including a service provided through the internet) that:

(i) is operated on a commercial basis, or operated by a body that provides a national broadcasting service (within the meaning of the Broadcasting Services Act 1992); and

(ii) is similar to a newspaper, magazine or radio or television broadcast.

1317AADA Personal work-related grievances

(1) Subsections 1317AA(1) and (2) do not apply to a disclosure of information by an individual (the discloser ) to the extent that the information disclosed:

(a) concerns a personal work-related grievance of the discloser; and

(b) does not concern a contravention, or an alleged contravention, of section 1317AC that involves detriment caused to the discloser or a threat made to the discloser.

Note: A disclosure concerning a personal work-related grievance that is made to a legal practitioner may qualify for protection under this Part under subsection 1317AA(3).

(2) For the purposes of subsection (1), the information disclosed concerns a personal work-related grievance of the discloser if:

(a) the information concerns a grievance about any matter in relation to the discloser's employment, or former employment, having (or tending to have) implications for the discloser personally; and

(b) the information:

(i) does not have significant implications for the regulated entity to which it relates, or another regulated entity, that do not relate to the discloser; and

(ii) does not concern conduct, or alleged conduct, referred to in paragraph 1317AA(5)(c), (d), (e) or (f).

Examples of grievances that may be personal work-related grievances under paragraph (a) (but subject to paragraph (b)) are as follows:

(a) an interpersonal conflict between the discloser and another employee;

(b) a decision relating to the engagement, transfer or promotion of the discloser;

(c) a decision relating to the terms and conditions of engagement of the discloser;

(d) a decision to suspend or terminate the engagement of the discloser, or otherwise to discipline the discloser.

1317AAE Confidentiality of whistleblower's identity

(1) A person (the first person ) contravenes this subsection if:

(a) another person (the discloser ) makes a disclosure of information (the qualifying disclosure ) that qualifies for protection under this Part; and

(b) the first person discloses any of the following (the confidential information ):

(i) the identity of the discloser;

(ii) information that is likely to lead to the identification of the discloser; and

(c) the confidential information is information that the first person obtained directly or indirectly because of the qualifying disclosure; and

(d) the disclosure referred to in paragraph (b) is not authorised under subsection (2) or (3).

Note 1: Failure to comply with this subsection is an offence (see subsection 1311(1)).

Note 2: This subsection is also a civil penalty provision (see section 1317E). For relief from liability to a civil penalty relating to this subsection, see section 1317S.

(2) A disclosure referred to in paragraph (1)(b) is authorised under this subsection if it:

(a) is made to ASIC; or

(b) is made to APRA; or

(c) is made to a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979); or

(d) is made to a legal practitioner for the purpose of obtaining legal advice or legal representation in relation to the operation of this Part; or

(e) is made to a person or body prescribed by the regulations for the purposes of this paragraph; or

(f) is made with the consent of the discloser.

(3) Without limiting subsection (2), a disclosure referred to in paragraph (1)(b) is authorised under this subsection if it:

(a) is made by ASIC, APRA or a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979); and

(b) is made to a Commonwealth authority, or a State or Territory authority, for the purpose of assisting the authority in the performance of its functions or duties.

(4) Subsection (1) does not apply if:

(a) the disclosure referred to in paragraph (1)(b):

(i) is not of the identity of the discloser; and

(ii) is reasonably necessary for the purposes of investigating a matter referred to in subsection 1317AA(4) or (5) to which the qualifying disclosure relates; and

(b) the first person takes all reasonable steps to reduce the risk that the discloser will be identified as a result of the disclosure referred to in paragraph (1)(b).

Note: In a prosecution for an offence, a defendant bears an evidential burden in relation to the matter in subsection (4): see subsection 13.3(3) of the Criminal Code.