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Australia improves protection for whistleblowers (1)

FCRO Subsection: 
Editorial Staff

The Australian Federal Government last night passed the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019. It applies to those making authorised disclosures in a "regulated entity" and a far wider range of releasing information than is common This is part one of a series.

The first thing to make clear is that the term "whistleblower" is, initially, used in the sense of someone who makes a report of suspicious activity to a very short list of recipients. This is ASIC - Australian Securities and Investments Commission, The Australian Prudential Regulation Authority (APRA) and "a Commonwealth authority prescribed for the purposes of this sub-paragraph in relation to the regulated entity." These are called "eligible recipients" - and no protection is available for any release of any information to any other person except to a "legal practitioner for the purpose of obtaining legal advice or representation." But then, as part 2 of this analysis shows, those restrictions are, for many practical purposes, removed.

If a person ("the discloser") " (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 " a range of specified legislation but with a catch-all of " 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 that the Act says "prescribed by" which means set out in, It does not say "proscribed by" which would mean banned by.

A note, seemingly not forming part of the Act says that protection arises even if a discloser makes a report but does not identify himself, thereby protecting those making anonymous reports.

The class of protected persons is very wide:

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

 


 

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