CHAPTER 9
-
MISCELLANEOUS
PART 9.4AAA
-
PROTECTION FOR WHISTLEBLOWERS
Note: This Part applies in relation to CCIVs with modifications: see
1242E
.
History
Pt 9.4AAA amended by No 8 of 2022, s 3, Sch 2[191] (effective 1 July 2022).
Pt 9.4AAA inserted by No 103 of 2004, s 3, Sch 4, Pt 2
[
2].
SECTION 1317AA
DISCLOSURES QUALIFYING FOR PROTECTION UNDER THIS PART
Disclosure to ASIC, APRA or prescribed body
1317AA(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.
[
CCH Note:
S 1317AA(1) will be amended by No 69 of 2020, s 3, Sch 1[1264], by inserting
"
or the Registrar
"
at the end of para (b)(i) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
Disclosure to eligible recipients
1317AA(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
1317AA(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
1317AA(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.
1317AA(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
;
(iiia)
the
Financial Accountability Regime Act 2023
;
(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.
History
S 1317AA(5) amended by No 68 of 2023, s 3, Sch 1
[
31] (effective 15 September 2023).
S 1317AA substituted by No 10 of 2019, s 3, Sch 1
[
2] (effective 1 July 2019).
SECTION 1317AAA
1317AAA
MEANING OF ELIGIBLE WHISTLEBLOWER
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.
History
S 1317AAA inserted by No 10 of 2019, s 3, Sch 1
[
2] (effective 1 July 2019).
SECTION 1317AAB
1317AAB
MEANING OF REGULATED ENTITY
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 of a superannuation entity;
(g)
an entity prescribed by the regulations for the purposes of this paragraph.
History
S 1317AAB amended by No 76 of 2023, s 3, Sch 2[603] (effective 20 October 2023).
S 1317AAB inserted by No 10 of 2019, s 3, Sch 1
[
2] (effective 1 July 2019).
SECTION 1317AAC
MEANING OF ELIGIBLE RECIPIENT
1317AAC(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.
1317AAC(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.
1317AAC(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.
1317AAC(4)
Subsections
(1)
,
(2)
and
(3)
do not limit each other.
History
S 1317AAC inserted by No 10 of 2019, s 3, Sch 1
[
2] (effective 1 July 2019).
SECTION 1317AAD
PUBLIC INTEREST DISCLOSURE AND EMERGENCY DISCLOSURE
1317AAD(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.
1317AAD(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.
1317AAD(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 televisionbroadcasting 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.
History
S 1317AAD inserted by No 10 of 2019, s 3, Sch 1
[
2] (effective 1 July 2019).
SECTION 1317AADA
PERSONAL WORK-RELATED GRIEVANCES
1317AADA(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)
.
1317AADA(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
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.
History
S 1317AADA inserted by No 10 of 2019, s 3, Sch 1
[
2] (effective 1 July 2019).
SECTION 1317AAE
CONFIDENTIALITY OF WHISTLEBLOWER
'
S IDENTITY
1317AAE(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
.
1317AAE(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.
[
CCH Note:
S 1317AAE(2) will be amended by No 69 of 2020, s 3, Sch 1[1265], by inserting para (ab) (effective 1 July 2026 or a day or days to be fixed by Proclamation). Para (ab) will read:
(ab)
is made to the Registrar; or.]
1317AAE(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 any of the following for the purpose of assisting it in the performance of its functions or duties:
(i)
a Commonwealth authority;
(ii)
an authority of a State or Territory;
(iii)
another body (whether incorporated or not) that is established or continued in existence by or under a law of a State or Territory.
[
CCH Note:
S 1317AAE(3) will be amended by No 69 of 2020, s 3, Sch 1[1266], by inserting
"
the Registrar,
"
after
"
ASIC,
"
in para (a) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 1317AAE(3) amended by No 69 of 2023, s 3, Sch 2[107] (effective 15 September 2023).
1317AAE(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.
History
S 1317AAE inserted by No 10 of 2019, s 3, Sch 1
[
2] (effective 1 July 2019).
SECTION 1317AB
DISCLOSURE THAT QUALIFIES FOR PROTECTION NOT ACTIONABLE ETC.
1317AB(1)
If a person makes a disclosure that qualifies for protection under this Part:
(a)
the person is not subject to any civil, criminal or administrative liability (including disciplinary action) for making the disclosure; and
(b)
no contractual or other remedy may be enforced, and no contractual or other right may be exercised, against the person on the basis of the disclosure; and
(c)
if the disclosure qualifies for protection under this Part under subsection
1317AA(1)
or section
1317AAD
-
the information is not admissible in evidence against the person in criminal proceedings or in proceedings for the imposition of a penalty, other than proceedings in respect of the falsity of the information.
Note: Except as provided for by paragraph (c), this subsection does not prevent the person being subject to any civil, criminal or administrative liability for conduct of the person that is revealed by the disclosure.
History
S 1317AB(1) substituted by No 10 of 2019, s 3, Sch 1
[
3] (effective 1 July 2019).
1317AB(2)
Without limiting subsection (1):
(a)
the person has qualified privilege in respect of the disclosure; and
(b)
a contract to which the person is a party may not be terminated on the basis that the disclosure constitutes a breach of the contract.
1317AB(3)
(Repealed by No 10 of 2019, s 3, Sch 1[4] (effective 1 July 2019).)
History
S 1317AB inserted by No 103 of 2004, s 3, Sch 4, Pt 2
[
2].
SECTION 1317AC
VICTIMISATION PROHIBITED
Actually causing detriment to another person
1317AC(1)
A person (the
first person
) contravenes this subsection if:
(a)
the first person engages in conduct; and
(b)
the first person's conduct causes any detriment to another person (the
second person
); and
(c)
when the first person engages in the conduct, the first person believes or suspects that the second person or any other person made, may have made, proposes to make or could make a disclosure that qualifies for protection under this Part; and
(d)
the belief or suspicion referred to in paragraph (c) is the reason, or part of the reason, for the conduct.
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
.
History
S 1317AC(1) amended by No 10 of 2019, s 3, Sch 1
[
5] and
[
6] (effective 1 July 2019).
Threatening to cause detriment to another person
1317AC(2)
A person (the
first person
) contravenes this subsection if:
(a)
the first person makes to another person (the
second person
) a threat to cause any detriment to the second person or to a third person; and
(b)
the first person:
(i)
intends the second person to fear that the threat will be carried out; or
(ii)
is reckless as to causing the second person to fear that the threat will be carried out; and
(c)
the first person makes the threat because a person:
(i)
makes a disclosure that qualifies for protection under this Part; or
(ii)
may make a disclosure that would qualify for protection under this Part.
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
.
History
S 1317AC(2) amended by No 10 of 2019, s 3, Sch 1
[
6] (effective 1 July 2019).
Officers and employees involved in contravention
1317AC(3)
If a company contravenes subsection (1) or (2), any officer or employee of the company who is involved in that contravention contravenes this subsection.
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
.
History
S 1317AC(3) amended by No 10 of 2019, s 3, Sch 1
[
6] (effective 1 July 2019).
Threats
1317AC(4)
For the purposes of subsection (2), a threat may be:
(a)
express or implied; or
(b)
conditional or unconditional.
1317AC(5)
In a prosecution for an offence against subsection (2) or proceedings in relation to a contravention of subsection (2), it is not necessary to prove that the person threatened actually feared that the threat would be carried out.
History
S 1317AC(5) amended by No 10 of 2019, s 3, Sch 1
[
7] (effective 1 July 2019).
S 1317AC inserted by No 103 of 2004, s 3, Sch 4, Pt 2
[
2].
SECTION 1317AD
COMPENSATION AND OTHER REMEDIES
-
CIRCUMSTANCES IN WHICH AN ORDER MAY BE MADE
1317AD(1)
A court may make an order under section
1317AE
in relation to a person (the
first person
) if:
(a)
the first person engages in conduct (
detrimental conduct
) that:
(i)
causes any detriment to another person (the
second person
); or
(ii)
constitutes the making of a threat to cause any such detriment to another person (the
second person
); and
(b)
when the first person engages in the detrimental conduct, the first person believes or suspects that the second person or any other person made, may have made, proposes to make or could make a disclosure that qualifies for protection under this Part; and
(c)
the belief or suspicion referred to in paragraph (b) is the reason, or part of the reason, for the detrimental conduct.
1317AD(2)
A court may make an order under section
1317AE
in relation to a person (the
first person
) if:
(a)
the first person is or was an officer or employee of a body corporate; and
(b)
paragraphs (1)(a), (b) and (c) of this section apply to the body corporate because of detrimental conduct engaged in by the body corporate; and
(c)
the first person:
(i)
aided, abetted, counselled or procured the detrimental conduct; or
(ii)
induced, whether by threats or promises or otherwise, the detrimental conduct; or
(iii)
was in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the detrimental conduct; or
(iv)
conspired with others to effect the detrimental conduct.
1317AD(2A)
A court may make an order under section
1317AE
in relation to a person (the
first person
) that is a body corporate if:
(a)
another person (the
third person
) engages in conduct (
detrimental conduct
) that:
(i)
causes any detriment to a person (the
second person
) other than the first person or the third person; or
(ii)
constitutes the making of a threat to cause any such detriment to a person (the
second person
) other than the first person or the third person; and
(b)
when the third person engages in the detrimental conduct, the third person believes or suspects that the second person or any other person made, may have made, proposes to make or could make a disclosure that qualifies for protection under this Part; and
(c)
the belief or suspicion referred to in paragraph (b) is the reason, or part of the reason, for the detrimental conduct; and
(d)
the first person is under a duty to prevent the third person engaging in the detrimental conduct, or a duty to take reasonable steps to ensure that the third person does not engage in the detrimental conduct; and
(e)
the first person fails in part or whole to fulfil that duty.
Burden of proof
1317AD(2B)
In proceedings where a person seeks an order under section
1317AE
in relation to another person:
(a)
the person seeking the order bears the onus of adducing or pointing to evidence that suggests a reasonable possibility of the matters in:
(i)
if subsection (1) of this section applies
-
paragraph (1)(a); or
(ii)
if subsection (2) of this section applies
-
paragraph (1)(a), as mentioned in paragraph (2)(b); or
(iii)
if subsection (2A) of this section applies
-
paragraphs (2A)(a) and (d); and
(b)
if that onus is discharged
-
the other person bears the onus of proving that the claim is not made out.
Threats
1317AD(3)
For the purposes of this section, a threat may be:
(a)
express or implied; or
(b)
conditional or unconditional.
1317AD(4)
In proceedings for the purposes of section
1317AE
, it is not necessary to prove that the person threatened actually feared that the threat would be carried out.
History
S 1317AD substituted by No 10 of 2019, s 3, Sch 1
[
9] (effective 1 July 2019).
SECTION 1317ADA
1317ADA
MEANING OF DETRIMENT
In sections
1317AC
and
1317AD
,
detriment
includes (without limitation) any of the following:
(a)
dismissal of an employee;
(b)
injury of an employee in his or her employment;
(c)
alteration of an employee
'
s position or duties to his or her disadvantage;
(d)
discrimination between an employee and other employees of the same employer;
(e)
harassment or intimidation of a person;
(f)
harm or injury to a person, including psychological harm;
(g)
damage to a person
'
s property;
(h)
damage to a person
'
s reputation;
(i)
damage to a person
'
s business or financial position;
(j)
any other damage to a person.
History
S 1317ADA inserted by No 10 of 2019, s 3, Sch 1
[
9] (effective 1 July 2019).
SECTION 1317AE
COMPENSATION AND OTHER REMEDIES
-
ORDERS THAT MAY BE MADE
1317AE(1)
For the purposes of subsections
1317AD(1)
,
(2)
and
(2A)
, a court may make any of the following orders:
(a)
an order requiring the first person to compensate the second person, or any other person, for loss, damage or injury suffered as a result of the detrimental conduct;
(b)
if the court is satisfied that the first person engaged in the detrimental conduct in connection with the first person
'
s position as an employee:
(i)
an order requiring the first person to compensate the second person, or any other person, for a part of loss, damage or injury as a result of the detrimental conduct, and an order requiring the first person
'
s employer to compensate the second person, or any other person, for a part of loss, damage or injury as a result of the detrimental conduct; or
(ii)
an order requiring the first person and the first person
'
s employer jointly to compensate the second person, or any other person, for loss, damage or injury suffered as a result of the detrimental conduct; or
(iii)
an order requiring the first person
'
s employer to compensate the second person, or any other person, for loss, damage or injury as a result of the detrimental conduct;
(c)
an order granting an injunction, on such terms as the court thinks appropriate, to prevent, stop or remedy the effects of the detrimental conduct;
(d)
an order requiring the first person to apologise to the second person, or any other person, for engaging in the detrimental conduct;
(e)
if the second person is or was employed in a particular position and the detrimental conduct wholly or partly consists, or consisted, of the termination, or purported termination, of the second person
'
s employment
-
an order that the second person be reinstated in that position or a position at a comparable level;
(f)
if the court thinks it is appropriate
-
an order requiring the first person to pay exemplary damages to the second person, or any other person;
(g)
any other order the court thinks appropriate.
1317AE(2)
If the detrimental conduct wholly or partly consists, or consisted, of terminating or purporting to terminate a person
'
s employment (including detrimental conduct that forces or forced the person to resign), the court must, in making an order mentioned in paragraph (1)(a) or (b), consider the period, if any, the person is likely to be without employment as a result of the detrimental conduct. This subsection does not limit any other matter the court may consider.
1317AE(3)
In deciding whether to make an order under paragraph (1)(b) in relation to the first person
'
s employer, the court may have regard to the following:
(a)
whether the employer took reasonable precautions, and exercised due diligence, to avoid the detrimental conduct;
(b)
if the employer has a policy dealing with any or all of the matters referred to in subsection
1317AI(5)
(whether or not section
1317AI
requires the employer to have such a policy)
-
the extent to which the employer gave effect to that policy;
(c)
any duty that the employer was under to prevent the detrimental conduct, or to take reasonable steps to ensure that the detrimental conduct was not engaged in.
1317AE(4)
If the court makes an order under subparagraph (1)(b)(ii), the first person and the first person
'
s employer are jointly and severally liable to pay the compensation concerned.
History
S 1317AE substituted by No 10 of 2019, s 3, Sch 1
[
9] (effective 1 July 2019).
SECTION 1317AF
1317AF
INTERACTION BETWEEN CIVIL PROCEEDINGS, CIVIL PENALTIES AND CRIMINAL OFFENCES
To avoid doubt, a person may bring civil proceedings for an order under section
1317AE
, or civil proceedings for a contravention of subsection
1317AC(1)
,
(2)
or
(3)
, in relation to particular conduct, even if a prosecution for a criminal offence against section
1317AC
in relation to that conduct has not been brought, or cannot be brought.
History
S 1317AF substituted by No 10 of 2019, s 3, Sch 1
[
9] (effective 1 July 2019).
SECTION 1317AG
1317AG
IDENTIFYING INFORMATION NOT TO BE DISCLOSED ETC. TO COURTS OR TRIBUNALS
If a person (the
discloser
) makes a disclosure of information that qualifies for protection under this Part, the discloser or any other person is not to be required:
(a)
to disclose to a court or tribunal:
(i)
the identity of the discloser; or
(ii)
information that is likely to lead to the identification of the discloser; or
(b)
to produce to a court or tribunal a document containing:
(i)
the identity of the discloser; or
(ii)
information that is likely to lead to the identification of the discloser;
except where:
(c)
it is necessary to do so for the purposes of giving effect to this Part; or
(d)
the court or tribunal thinks it necessary in the interests of justice to do so.
Note: A discloser may also be able to apply to the court or tribunal, in accordance with the rules of the court or tribunal, for an order protecting the discloser
'
s identity.
History
S 1317AG inserted by No 10 of 2019, s 3, Sch 1
[
9] (effective 1 July 2019).
SECTION 1317AH
COSTS ONLY IF PROCEEDINGS INSTITUTED VEXATIOUSLY ETC.
1317AH(1)
This section applies to a proceeding (including an appeal) in a court in relation to a matter arising under section
1317AE
in which a person (the
claimant
) is seeking an order under subsection
1317AE(1)
.
1317AH(2)
The claimant must not be ordered by the court to pay costs incurred by another party to the proceedings, except in accordance with subsection (3) of this section.
1317AH(3)
The claimant may be ordered to pay the costs only if:
(a)
the court is satisfied that the claimant instituted the proceedings vexatiously or without reasonable cause; or
(b)
the court is satisfied that the claimant
'
s unreasonable act or omission caused the other party to incur the costs.
History
S 1317AH inserted by No 10 of 2019, s 3, Sch 1
[
9] (effective 1 July 2019).
SECTION 1317AI
WHISTLEBLOWER POLICIES
1317AI(1)
A public company must:
(a)
have a policy that sets out the matters referred to in subsection (5); and
(b)
make that policy available to officers and employees of the company.
Note: Failure to comply with this subsection is an offence: see subsection
1311(1)
.
1317AI(2)
A proprietary company that has been a large proprietary company for any financial year (the
first financial year
) must, on each day in each later financial year that is at least 6 months after the last day of the first financial year:
(a)
have a policy that sets out the matters referred to in subsection (5); and
(b)
make that policy available to officers and employees of the company.
Note: Failure to comply with this subsection is an offence: see subsection
1311(1)
.
1317AI(3)
Without limiting subsection (2), a proprietary company that is the trustee (within the meaning of the
Superannuation Industry (Supervision) Act 1993
) of a registrable superannuation entity (within the meaning of that Act) must:
(a)
have a policy that sets out the matters referred to in subsection (5); and
(b)
make that policy available to officers and employees of the company.
Note: Failure to comply with this subsection is an offence: see subsection
1311(1)
.
1317AI(4)
An offence based on subsection (1), (2) or (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the
Criminal Code
.
1317AI(5)
The matters that a policy must set out for the purposes of paragraph (1)(a), (2)(a) or (3)(a) are:
(a)
information about the protections available to whistleblowers, including protections under this Part; and
(b)
information about to whom disclosures that qualify for protection under this Part may be made, and how they may be made; and
(c)
information about how the company will support whistleblowers and protect them from detriment; and
(d)
information about how the company will investigate disclosures that qualify for protection under this Part; and
(e)
information about how the company will ensure fair treatment of employees of the company who are mentioned in disclosures that qualify for protection under this Part, or to whom such disclosures relate; and
(f)
information about how the policy is to be made available to officers and employees of the company; and
(g)
any matters prescribed by the regulations for the purposes of this paragraph.
History
S 1317AI inserted by No 10 of 2019, s 3, Sch 1
[
9] (effective 1 July 2019).
SECTION 1317AJ
EXEMPTION ORDERS
-
CLASS ORDERS FOR COMPANIES
1317AJ(1)
ASIC may, by legislative instrument, make an order in respect of a specified class of company relieving companies in the class from all or specified requirements of section 1317AI.
1317AJ(2)
The order may:
(a)
be expressed to be subject to conditions; and
(b)
be indefinite or limited to a specified period.
History
S 1317AJ inserted by No 10 of 2019, s 3, Sch 1
[
9] (effective 1 July 2019).
SECTION 1317AK
REVIEW OF OPERATION OF WHISTLEBLOWER PROTECTIONS
1317AK(1)
The Minister must cause a review to be undertaken of the operation of:
(a)
this Part; and
(b)
Part
IVD
of the
Taxation Administration Act 1953
.
Note: Part
IVD
of the
Taxation Administration Act 1953
provides for protections for whistleblowers in relation to tax.
1317AK(2)
The review must be conducted as soon as practicable after the end of 5 years after this section commences.
1317AK(3)
The Minister must cause a written report about the review to be prepared.
1317AK(4)
The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the report.
History
S 1317AK inserted by No 10 of 2019, s 3, Sch 1
[
9] (effective 1 July 2019).