Australian Regulatory Compliance Review

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.

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.

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 informers. 

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 88 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 connection with the ACCC proceedings against Visy .

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.

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)