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This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Treasury Laws Amendment (Enhancing
Whistleblower Protections) Bill 2017
No. , 2017
(Treasury)
A Bill for an Act to amend the law in relation to
whistleblowing, and for related purposes
No. , 2017
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments
3
Part 1--Amendment of the Corporations Act 2001
3
Corporations Act 2001
3
Part 2--Amendment of the Taxation Administration Act 1953
21
Taxation Administration Act 1953
21
Part 3--Other amendments
33
Banking Act 1959
33
Insurance Act 1973
33
Life Insurance Act 1995
34
Superannuation Industry (Supervision) Act 1993
35
No. , 2017
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
1
A Bill for an Act to amend the law in relation to
1
whistleblowing, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the Treasury Laws Amendment (Enhancing
5
Whistleblower Protections) Act 2017.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
No. , 2017
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
1 July 2018.
1 July 2018
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Amendments Schedule 1
Amendment of the Corporations Act 2001 Part 1
No. , 2017
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
3
Schedule 1--Amendments
1
Part 1--Amendment of the Corporations Act 2001
2
Corporations Act 2001
3
1 Section 9
4
Insert:
5
eligible recipient has the meaning given by section 1317AAC.
6
eligible whistleblower has the meaning given by
7
section 1317AAA.
8
regulated entity has the meaning given by section 1317AAB.
9
State or Territory authority means an authority or other body
10
(whether incorporated or not) that is established or continued in
11
existence by or under a law of a State or Territory.
12
2 Section 1317AA
13
Repeal the section, substitute:
14
1317AA Disclosures qualifying for protection under this Part
15
Disclosure to ASIC, APRA or prescribed body
16
(1) A disclosure of information by an individual (the discloser)
17
qualifies for protection under this Part if:
18
(a) the discloser is an eligible whistleblower in relation to a
19
regulated entity; and
20
(b) the disclosure is made to any of the following:
21
(i) ASIC;
22
(ii) APRA;
23
(iii) a Commonwealth authority prescribed for the purposes
24
of this subparagraph in relation to the regulated entity;
25
and
26
(c) subsection (4) or (5) applies to the disclosure.
27
Schedule 1 Amendments
Part 1 Amendment of the Corporations Act 2001
4
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
No. , 2017
Note:
Section 1317AAD (emergency disclosure) and
1
paragraph 1317AB(1)(c) (protection from self-incrimination etc.) may
2
apply to a disclosure covered by this subsection.
3
Disclosure to eligible recipients
4
(2) A disclosure of information by an individual (the discloser)
5
qualifies for protection under this Part if:
6
(a) the discloser is an eligible whistleblower in relation to a
7
regulated entity; and
8
(b) the disclosure is made to an eligible recipient in relation to
9
the regulated entity; and
10
(c) subsection (4) or (5) applies to the disclosure.
11
Disclosure to legal practitioner
12
(3) A disclosure of information by an individual qualifies for
13
protection under this Part if the disclosure is made to a legal
14
practitioner for the purpose of obtaining legal advice or legal
15
representation in relation to the operation of this Part.
16
Disclosable matters
17
(4) This subsection applies to a disclosure of information if the
18
discloser has reasonable grounds to suspect that the information
19
concerns misconduct, or an improper state of affairs or
20
circumstances, in relation to:
21
(a) the regulated entity; or
22
(b) if the regulated entity is a body corporate--a related body
23
corporate of the regulated entity.
24
(5) Without limiting subsection (4), this subsection applies to a
25
disclosure of information if the discloser has reasonable grounds to
26
suspect that the information indicates that any of the following:
27
(a) the regulated entity, or an officer or employee of the
28
regulated entity;
29
(b) if the regulated entity is a body corporate--a related body
30
corporate of the regulated entity, or an officer or employee of
31
a related body corporate of the regulated entity;
32
has engaged in conduct that:
33
Amendments Schedule 1
Amendment of the Corporations Act 2001 Part 1
No. , 2017
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
5
(c) constitutes an offence against, or a contravention of, a
1
provision of any of the following:
2
(i) this Act;
3
(ii) the ASIC Act;
4
(iii) the Banking Act 1959;
5
(iv) the Financial Sector (Collection of Data) Act 2001;
6
(v) the Insurance Act 1973;
7
(vi) the Life Insurance Act 1995;
8
(vii) the National Consumer Credit Protection Act 2009;
9
(viii) the Superannuation Industry (Supervision) Act 1993;
10
(ix) an instrument made under an Act referred to in any of
11
subparagraphs (i) to (viii); or
12
(d) constitutes an offence against any other law of the
13
Commonwealth that is punishable by imprisonment for a
14
period of 12 months or more; or
15
(e) represents a danger to the public or the financial system; or
16
(f) is prescribed by the regulations for the purposes of this
17
paragraph.
18
Note:
There is no requirement for a discloser to identify himself or herself in
19
order for a disclosure to qualify for protection under this Part.
20
1317AAA Eligible whistleblowers
21
An individual is an eligible whistleblower in relation to a regulated
22
entity if the individual is, or has been, any of the following:
23
(a) an officer of the regulated entity;
24
(b) an employee of the regulated entity;
25
(c) an individual who supplies services or goods to the regulated
26
entity (whether paid or unpaid);
27
(d) an employee of a person that supplies services or goods to the
28
regulated entity (whether paid or unpaid);
29
(e) an individual who is an associate of the regulated entity;
30
(f) for a regulated entity that is a superannuation entity:
31
(i) an individual who is a trustee (within the meaning of the
32
Superannuation Industry (Supervision) Act 1993),
33
custodian (within the meaning of that Act) or
34
Schedule 1 Amendments
Part 1 Amendment of the Corporations Act 2001
6
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
No. , 2017
investment manager (within the meaning of that Act) of
1
the superannuation entity; or
2
(ii) an officer of a body corporate that is a trustee, custodian
3
or investment manager of the superannuation entity; or
4
(iii) an employee of an individual referred to in
5
subparagraph (i) or a body corporate referred to in
6
subparagraph (ii); or
7
(iv) an individual who supplies services or goods to an
8
individual referred to in subparagraph (i) or a body
9
corporate referred to in subparagraph (ii) (whether paid
10
or unpaid); or
11
(v) an employee of a person that supplies services or goods
12
to an individual referred to in subparagraph (i) or a body
13
corporate referred to in subparagraph (ii) (whether paid
14
or unpaid);
15
(g) a relative of an individual referred to in any of paragraphs (a)
16
to (f);
17
(h) a dependant of an individual referred to in any of
18
paragraphs (a) to (f), or of such an individual's spouse;
19
(i) an individual prescribed by the regulations for the purposes
20
of this paragraph in relation to the regulated entity.
21
1317AAB Regulated entities
22
Each of the following is a regulated entity:
23
(a) a company;
24
(b) a corporation to which paragraph 51(xx) of the Constitution
25
applies;
26
(c) an ADI (within the meaning of the Banking Act 1959), an
27
authorised NOHC (within the meaning of that Act) or a
28
subsidiary of an ADI or an authorised NOHC;
29
(d) a general insurer (within the meaning of the Insurance Act
30
1973), an authorised NOHC (within the meaning of that Act)
31
or a subsidiary of a general insurer or an authorised NOHC;
32
(e) a life company (within the meaning of the Life Insurance Act
33
1995), a registered NOHC (within the meaning of that Act)
34
or a subsidiary of a life company or a registered NOHC;
35
Amendments Schedule 1
Amendment of the Corporations Act 2001 Part 1
No. , 2017
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
7
(f) a superannuation entity or a trustee (within the meaning of
1
the Superannuation Industry (Supervision) Act 1993) of a
2
superannuation entity;
3
(g) an entity prescribed by the regulations for the purposes of
4
this paragraph.
5
1317AAC Eligible recipients
6
(1) Each of the following is an eligible recipient in relation to a
7
regulated entity that is a body corporate:
8
(a) an officer of the body corporate or a related body corporate;
9
(b) an auditor, or a member of an audit team conducting an audit,
10
of the body corporate or a related body corporate;
11
(c) an actuary of the body corporate or a related body corporate;
12
(d) a person authorised by the body corporate to receive
13
disclosures that may qualify for protection under this Part;
14
(e) in relation to a disclosure of information by an individual
15
who is an employee of the body corporate--a person who
16
supervises or manages the individual.
17
(2) Each of the following is an eligible recipient in relation to a
18
regulated entity that is a superannuation entity:
19
(a) an officer of the superannuation entity;
20
(b) an auditor, or a member of an audit team conducting an audit,
21
of the superannuation entity;
22
(c) an actuary of the superannuation entity;
23
(d) an individual who is a trustee (within the meaning of the
24
Superannuation Industry (Supervision) Act 1993) of the
25
superannuation entity;
26
(e) a director of a body corporate that is the trustee (within the
27
meaning of the Superannuation Industry (Supervision) Act
28
1993) of the superannuation entity;
29
(f) a person authorised by the trustee or trustees (within the
30
meaning of the Superannuation Industry (Supervision) Act
31
1993) of the superannuation entity to receive disclosures that
32
may qualify for protection under this Part.
33
Schedule 1 Amendments
Part 1 Amendment of the Corporations Act 2001
8
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
No. , 2017
(3) The regulations may prescribe persons or bodies that are eligible
1
recipients in relation to all regulated entities, or in relation to a
2
class or classes of regulated entities.
3
(4) Subsections (1), (2) and (3) do not limit each other.
4
1317AAD Emergency disclosure
5
(1) A disclosure of information (the emergency disclosure) by an
6
individual (the discloser) qualifies for protection under this Part if:
7
(a) the discloser has previously made a disclosure of that
8
information (the previous disclosure) that qualifies for
9
protection under this Part under subsection 1317AA(1); and
10
(b) a reasonable period has passed since the previous disclosure
11
was made; and
12
(c) the discloser has reasonable grounds to believe that there is
13
an imminent risk of serious harm or danger to public health
14
or safety, or to the financial system, if the information is not
15
acted on immediately; and
16
(d) after the end of the period referred to in paragraph (b), the
17
discloser gave the body to which the previous disclosure was
18
made a written notification that:
19
(i) includes sufficient information to identify the previous
20
disclosure; and
21
(ii) states that the discloser intends to make an emergency
22
disclosure; and
23
(e) the emergency disclosure is made to:
24
(i) a member of the Parliament of the Commonwealth, a
25
State or a Territory; or
26
(ii) a journalist.
27
(2) In this section:
28
journalist means a person who is working in a professional
29
capacity as a journalist for any of the following:
30
(a) a newspaper or magazine;
31
(b) a radio or television broadcasting service;
32
(c) an electronic service (including a service provided through
33
the internet) that:
34
Amendments Schedule 1
Amendment of the Corporations Act 2001 Part 1
No. , 2017
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
9
(i) is operated on a commercial basis; and
1
(ii) is similar to a newspaper, magazine or radio or
2
television broadcast.
3
1317AAE Confidentiality of whistleblower's identity
4
(1) A person (the first person) contravenes this subsection if:
5
(a) another person (the discloser) makes a disclosure of
6
information (the qualifying disclosure) that qualifies for
7
protection under this Part; and
8
(b) the first person discloses any of the following (the
9
confidential information):
10
(i) the identity of the discloser;
11
(ii) information that is likely to lead to the identification of
12
the discloser; and
13
(c) the confidential information is information that the first
14
person obtained directly or indirectly because of the
15
qualifying disclosure; and
16
(d) the disclosure referred to in paragraph (b) is not authorised
17
under subsection (2) or (3).
18
Note 1:
Failure to comply with this subsection is an offence (see
19
subsection 1311(1)).
20
Note 2:
This subsection is also a civil penalty provision (see section 1317E).
21
For relief from liability to a civil penalty relating to this subsection,
22
see section 1317S.
23
(2) A disclosure referred to in paragraph (1)(b) is authorised under this
24
subsection if it:
25
(a) is made to ASIC; or
26
(b) is made to APRA; or
27
(c) is made to a member of the Australian Federal Police (within
28
the meaning of the Australian Federal Police Act 1979); or
29
(d) is made to a legal practitioner for the purpose of obtaining
30
legal advice or legal representation in relation to the
31
operation of this Part; or
32
(e) is made to a person or body prescribed by the regulations for
33
the purposes of this paragraph; or
34
(f) is made with the consent of the discloser.
35
Schedule 1 Amendments
Part 1 Amendment of the Corporations Act 2001
10
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
No. , 2017
(3) Without limiting subsection (2), a disclosure referred to in
1
paragraph (1)(b) is authorised under this subsection if it:
2
(a) is made by ASIC, APRA or a member of the Australian
3
Federal Police (within the meaning of the Australian Federal
4
Police Act 1979); and
5
(b) is made to a Commonwealth authority, or a State or Territory
6
authority, for the purpose of assisting the authority in the
7
performance of its functions or duties.
8
(4) Subsection (1) does not apply if:
9
(a) the disclosure referred to in paragraph (1)(b):
10
(i) is not of the identity of the discloser; and
11
(ii) is reasonably necessary for the purposes of investigating
12
a matter referred to in subsection 1317AA(4) or (5) to
13
which the qualifying disclosure relates; and
14
(b) the first person takes all reasonable steps to reduce the risk
15
that the discloser will be identified as a result of the
16
disclosure referred to in paragraph (1)(b).
17
Note:
In a prosecution for an offence, a defendant bears an evidential burden
18
in relation to the matter in subsection (4): see subsection 13.3(3) of the
19
Criminal Code.
20
3 Subsection 1317AB(1)
21
Repeal the subsection, substitute:
22
(1) If a person makes a disclosure that qualifies for protection under
23
this Part:
24
(a) the person is not subject to any civil, criminal or
25
administrative liability (including disciplinary action) for
26
making the disclosure; and
27
(b) no contractual or other remedy may be enforced, and no
28
contractual or other right may be exercised, against the
29
person on the basis of the disclosure; and
30
(c) if the disclosure qualifies for protection under this Part under
31
subsection 1317AA(1) or section 1317AAD--the
32
information is not admissible in evidence against the person
33
in criminal proceedings or in proceedings for the imposition
34
of a penalty, other than proceedings in respect of the falsity
35
of the information.
36
Amendments Schedule 1
Amendment of the Corporations Act 2001 Part 1
No. , 2017
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
11
Note:
Except as provided for by paragraph (c), this subsection does not
1
prevent the person being subject to any civil, criminal or
2
administrative liability for conduct of the person that is revealed by
3
the disclosure.
4
4 Subsection 1317AB(3)
5
Repeal the subsection.
6
5 Paragraphs 1317AC(1)(c) and (d)
7
Repeal the paragraphs, substitute:
8
(c) when the first person engages in the conduct, the first person
9
believes or suspects that the second person or any other
10
person made, may have made, proposes to make or could
11
make a disclosure that qualifies for protection under this Part;
12
and
13
(d) the belief or suspicion referred to in paragraph (c) is the
14
reason, or part of the reason, for the conduct.
15
6 At the end of subsections 1317AC(1), (2) and (3)
16
Add:
17
Note 1:
Failure to comply with this subsection is an offence (see
18
subsection 1311(1)).
19
Note 2:
This subsection is also a civil penalty provision (see section 1317E).
20
For relief from liability to a civil penalty relating to this subsection,
21
see section 1317S.
22
7 Subsection 1317AC(5)
23
After "subsection (2)", insert "or proceedings in relation to a
24
contravention of subsection (2)".
25
8 At the end of section 1317AC
26
Add:
27
Detriment
28
(6) In this section, detriment includes (without limitation) any of the
29
following:
30
(a) dismissal of an employee;
31
(b) injury of an employee in his or her employment;
32
Schedule 1 Amendments
Part 1 Amendment of the Corporations Act 2001
12
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
No. , 2017
(c) alteration of an employee's position or duties to his or her
1
disadvantage;
2
(d) discrimination between an employee and other employees of
3
the same employer;
4
(e) harassment or intimidation of a person;
5
(f) harm or injury to a person, including psychological harm;
6
(g) damage to a person's property;
7
(h) damage to a person's reputation;
8
(i) damage to a person's business or financial position;
9
(j) any other damage to a person.
10
9 Sections 1317AD and 1317AE
11
Repeal the sections, substitute:
12
1317AD Compensation and other remedies--circumstances in which
13
an order may be made
14
(1) A court may make an order under section 1317AE in relation to a
15
person (the first person) if:
16
(a) the first person engages in conduct (victimising conduct)
17
that:
18
(i) causes any detriment (within the meaning of
19
section 1317AC) to another person (the second person);
20
or
21
(ii) constitutes the making of a threat to cause any such
22
detriment to another person (the second person); and
23
(b) when the first person engages in the victimising conduct, the
24
first person believes or suspects that the second person or any
25
other person made, may have made, proposes to make or
26
could make a disclosure that qualifies for protection under
27
this Part; and
28
(c) the belief or suspicion referred to in paragraph (b) is the
29
reason, or part of the reason, for the victimising conduct.
30
(2) A court may make an order under section 1317AE in relation to a
31
person (the first person) if:
32
(a) the first person is or was an officer or employee of a body
33
corporate; and
34
Amendments Schedule 1
Amendment of the Corporations Act 2001 Part 1
No. , 2017
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
13
(b) paragraphs (1)(a), (b) and (c) of this section apply to the body
1
corporate because of victimising conduct engaged in by the
2
body corporate; and
3
(c) the first person:
4
(i) aided, abetted, counselled or procured the victimising
5
conduct; or
6
(ii) induced, whether by threats or promises or otherwise,
7
the victimising conduct; or
8
(iii) was in any way, by act or omission, directly or
9
indirectly, knowingly concerned in, or party to, the
10
victimising conduct; or
11
(iv) conspired with others to effect the victimising conduct.
12
Threats
13
(3) For the purposes of this section, a threat may be:
14
(a) express or implied; or
15
(b) conditional or unconditional.
16
(4) In proceedings for the purposes of section 1317AE, it is not
17
necessary to prove that the person threatened actually feared that
18
the threat would be carried out.
19
1317AE Compensation and other remedies--orders that may be
20
made
21
(1) For the purposes of subsections 1317AD(1) and (2), a court may
22
make any of the following orders:
23
(a) an order requiring the first person to compensate the second
24
person, or any other person, for loss, damage or injury
25
suffered as a result of the victimising conduct;
26
(b) if the court is satisfied that the first person engaged in the
27
victimising conduct in connection with the first person's
28
position as an employee:
29
(i) an order requiring the first person to compensate the
30
second person, or any other person, for a part of loss,
31
damage or injury as a result of the victimising conduct,
32
and an order requiring the first person's employer to
33
compensate the second person, or any other person, for
34
Schedule 1 Amendments
Part 1 Amendment of the Corporations Act 2001
14
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
No. , 2017
a part of loss, damage or injury as a result of the
1
victimising conduct; or
2
(ii) an order requiring the first person and the first person's
3
employer jointly to compensate the second person, or
4
any other person, for loss, damage or injury suffered as
5
a result of the victimising conduct; or
6
(iii) an order requiring the first person's employer to
7
compensate the second person, or any other person, for
8
loss, damage or injury as a result of the victimising
9
conduct;
10
(c) an order granting an injunction, on such terms as the court
11
thinks appropriate, to prevent, stop or remedy the effects of
12
the victimising conduct;
13
(d) an order requiring the first person to apologise to the second
14
person, or any other person, for engaging in the victimising
15
conduct;
16
(e) if the second person is or was employed in a particular
17
position and the victimising conduct wholly or partly
18
consists, or consisted, of the termination, or purported
19
termination, of the second person's employment--an order
20
that the second person be reinstated in that position or a
21
position at a comparable level;
22
(f) if the court thinks it is appropriate--an order requiring the
23
first person to pay exemplary damages to the second person,
24
or any other person;
25
(g) any other order the court thinks appropriate.
26
(2) In any proceeding where a person seeks an order under
27
subsection (1) in relation to another person:
28
(a) the person seeking the order bears the onus of adducing or
29
pointing to evidence that suggests a reasonable possibility of
30
the matters in paragraph 1317AD(1)(a); and
31
(b) if that onus is discharged--the other person bears the onus of
32
proving that the claim is not made out.
33
Note:
The onus mentioned in paragraph (2)(a) applies in relation to the
34
matters in paragraph 1317AD(1)(a) whether those matters relate to the
35
first person, as referred to in paragraph 1317AD(1)(a), or to a body
36
corporate, as referred to in paragraph 1317AD(2)(b).
37
Amendments Schedule 1
Amendment of the Corporations Act 2001 Part 1
No. , 2017
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
15
(3) The court must not make an order under paragraph (1)(b) if the
1
first person's employer establishes that it took reasonable
2
precautions, and exercised due diligence, to avoid the victimising
3
conduct.
4
(4) If the court makes an order under subparagraph (1)(b)(ii), the first
5
person and the first person's employer are jointly and severally
6
liable to pay the compensation concerned.
7
1317AF Interaction between civil proceedings, civil penalties and
8
criminal offences
9
To avoid doubt, a person may bring civil proceedings for an order
10
under section 1317AE, or civil proceedings for a contravention of
11
subsection 1317AC(1), (2) or (3), in relation to particular conduct,
12
even if a prosecution for a criminal offence against
13
section 1317AC in relation to that conduct has not been brought, or
14
cannot be brought.
15
1317AG Identifying information not to be disclosed etc. to courts or
16
tribunals
17
If a person (the discloser) makes a disclosure of information that
18
qualifies for protection under this Part, the discloser or any other
19
person is not to be required:
20
(a) to disclose to a court or tribunal:
21
(i) the identity of the discloser; or
22
(ii) information that is likely to lead to the identification of
23
the discloser; or
24
(b) to produce to a court or tribunal a document containing:
25
(i) the identity of the discloser; or
26
(ii) information that is likely to lead to the identification of
27
the discloser;
28
except where:
29
(c) it is necessary to do so for the purposes of giving effect to
30
this Part; or
31
(d) the court or tribunal thinks it necessary in the interests of
32
justice to do so.
33
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Part 1 Amendment of the Corporations Act 2001
16
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
No. , 2017
Note:
A discloser may also be able to apply to the court or tribunal, in
1
accordance with the rules of the court or tribunal, for an order
2
protecting the discloser's identity.
3
1317AH Costs only if proceedings instituted vexatiously etc.
4
(1) This section applies to a proceeding (including an appeal) in a
5
court in relation to a matter arising under section 1317AE in which
6
a person (the claimant) is seeking an order under
7
subsection 1317AE(1).
8
(2) The claimant must not be ordered by the court to pay costs incurred
9
by another party to the proceedings, except in accordance with
10
subsection (3) of this section.
11
(3) The claimant may be ordered to pay the costs only if:
12
(a) the court is satisfied that the claimant instituted the
13
proceedings vexatiously or without reasonable cause; or
14
(b) the court is satisfied that the claimant's unreasonable act or
15
omission caused the other party to incur the costs.
16
1317AI Whistleblower policies
17
(1) A public company must:
18
(a) have a policy that sets out the matters referred to in
19
subsection (5); and
20
(b) make that policy available to officers and employees of the
21
company.
22
Note:
Failure to comply with this subsection is an offence: see
23
subsection 1311(1).
24
(2) A proprietary company that has been a large proprietary company
25
for any financial year (the first financial year) must, on each day
26
in each later financial year that is at least 6 months after the last
27
day of the first financial year:
28
(a) have a policy that sets out the matters referred to in
29
subsection (5); and
30
(b) make that policy available to officers and employees of the
31
company.
32
Note:
Failure to comply with this subsection is an offence: see
33
subsection 1311(1).
34
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Amendment of the Corporations Act 2001 Part 1
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Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
17
(3) Without limiting subsection (2), a proprietary company that is the
1
trustee (within the meaning of the Superannuation Industry
2
(Supervision) Act 1993) of a registrable superannuation entity
3
(within the meaning of that Act) must:
4
(a) have a policy that sets out the matters referred to in
5
subsection (5); and
6
(b) make that policy available to officers and employees of the
7
company.
8
Note:
Failure to comply with this subsection is an offence: see
9
subsection 1311(1).
10
(4) An offence based on subsection (1), (2) or (3) is an offence of strict
11
liability.
12
Note:
For strict liability, see section 6.1 of the Criminal Code.
13
(5) The matters that a policy must set out for the purposes of
14
paragraph (1)(a), (2)(a) or (3)(a) are:
15
(a) information about the protections available to
16
whistleblowers, including protections under this Part; and
17
(b) information about to whom disclosures that qualify for
18
protection under this Part may be made, and how they may
19
be made; and
20
(c) information about how the company will support
21
whistleblowers and protect them from detriment (within the
22
meaning of section 1317AC); and
23
(d) information about how the company will investigate
24
disclosures that qualify for protection under this Part; and
25
(e) information about how the company will ensure fair
26
treatment of employees of the company who are mentioned
27
in disclosures that qualify for protection under this Part, or to
28
whom such disclosures relate; and
29
(f) information about how the policy is to be made available to
30
officers and employees of the company; and
31
(g) any matters prescribed by the regulations for the purposes of
32
this paragraph.
33
Schedule 1 Amendments
Part 1 Amendment of the Corporations Act 2001
18
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
No. , 2017
1317AJ Exemption orders--class orders for companies
1
(1) ASIC may, by legislative instrument, make an order in respect of a
2
specified class of company relieving companies in the class from
3
all or specified requirements of section 1317AI.
4
(2) The order may:
5
(a) be expressed to be subject to conditions; and
6
(b) be indefinite or limited to a specified period.
7
10 Subsection 1317E(1) (after table item 45)
8
Insert:
9
10
45A
subsection 1317AAE(1)
breach of confidentiality of identity
of whistleblower
45B
subsections 1317AC(1), (2) and (3)
victimisation or threatened
victimisation of whistleblower
11
11 After subsection 1317G(1G)
12
Insert:
13
Whistleblower provisions
14
(1H) A Court may order a person to pay the Commonwealth a pecuniary
15
penalty if:
16
(a) a declaration of contravention by the person has been made
17
under section 1317E; and
18
(b) the contravention is of subsection 1317AAE(1)
19
(confidentiality of whistleblower's identity) or
20
subsection 1317AC(1), (2) or (3) (victimisation or threatened
21
victimisation of whistleblower).
22
(1J) The maximum amount that the court may order the person to pay
23
for contravening subsection 1317AAE(1) or 1317AC(1), (2) or (3)
24
is:
25
(a) $200,000 for an individual; or
26
(b) $1 million for a body corporate.
27
Amendments Schedule 1
Amendment of the Corporations Act 2001 Part 1
No. , 2017
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
19
12 In the appropriate position in Chapter 10
1
Insert:
2
Part 10.32--Transitional provisions relating to the
3
Treasury Laws Amendment (Enhancing
4
Whistleblower Protections) Act 2017
5
6
1644 Application of amendments
7
(1) The amendments made by Part 1 of Schedule 1 to the Treasury
8
Laws Amendment (Enhancing Whistleblower Protections) Act 2017
9
apply in relation to disclosures that:
10
(a) are made at or after the time that Part commences (the
11
commencement time); and
12
(b) relate to matters that occur or occurred before, at or after the
13
commencement time.
14
(2) Without limiting subsection (1), sections 1317AC, 1317AD and
15
1317AE, and any other provision of Part 9.4AAA to the extent that
16
it relates to those sections, as in force immediately after the
17
commencement time, also apply at and after the commencement
18
time in relation to a disclosure that:
19
(a) was made before the commencement time; and
20
(b) would be a disclosure protected by Part 9.4AAA, if the
21
amendments made by Part 1 of Schedule 1 to the Treasury
22
Laws Amendment (Enhancing Whistleblower Protections)
23
Act 2017 had been in force at the time the disclosure was
24
made.
25
Whistleblower policies
26
(3) Section 1317AI, as inserted by item 9 of Schedule 1 to the
27
Treasury Laws Amendment (Enhancing Whistleblower
28
Protections) Act 2017, applies on and after 1 January 2019.
29
(4) A reference to a financial year in subsection 1317AI(2), as inserted
30
by that item, is a reference to a financial year that ends on or after
31
30 June 2018.
32
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Part 1 Amendment of the Corporations Act 2001
20
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
No. , 2017
13 Schedule 3 (table items 338 and 338A)
1
Repeal the items, substitute:
2
3
337A
Subsection 1317AAE(1)
30 penalty units or imprisonment for
6 months, or both.
338
Subsection 1317AC(1), (2) or (3)
120 penalty units or imprisonment
for 2 years, or both.
338A
Subsection 1317AI(1), (2) or (3)
60 penalty units.
4
Amendments Schedule 1
Amendment of the Taxation Administration Act 1953 Part 2
No. , 2017
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
21
Part 2--Amendment of the Taxation Administration
1
Act 1953
2
Taxation Administration Act 1953
3
14 Subsection 2(1)
4
Insert:
5
eligible recipient has the meaning given by section 14ZZV.
6
eligible whistleblower has the meaning given by section 14ZZU.
7
15 After Part IVC
8
Insert:
9
Part IVD--Protection for whistleblowers
10
11
14ZZT Disclosures qualifying for protection under this Part
12
(1) A disclosure of information by an individual (the discloser)
13
qualifies for protection under this Part if:
14
(a) the discloser is an eligible whistleblower in relation to an
15
entity (within the meaning of the Income Tax Assessment Act
16
1997); and
17
(b) the disclosure is made to the Commissioner; and
18
(c) the discloser considers that the information may assist the
19
Commissioner to perform his or her functions or duties under
20
a taxation law in relation to the entity or an associate (within
21
the meaning of section 318 of the Income Tax Assessment Act
22
1936) of the entity.
23
(2) A disclosure of information by an individual (the discloser)
24
qualifies for protection under this Part if:
25
(a) the discloser is an eligible whistleblower in relation to an
26
entity (within the meaning of the Income Tax Assessment Act
27
1997); and
28
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Part 2 Amendment of the Taxation Administration Act 1953
22
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
No. , 2017
(b) the disclosure is made to an eligible recipient in relation to
1
the entity; and
2
(c) the discloser has reasonable grounds to suspect that the
3
information indicates misconduct, or an improper state of
4
affairs or circumstances, in relation to the tax affairs of the
5
entity or an associate (within the meaning of section 318 of
6
the Income Tax Assessment Act 1936) of the entity; and
7
(d) the discloser considers that the information may assist the
8
eligible recipient to perform functions or duties in relation to
9
the tax affairs of the entity or an associate (within the
10
meaning of section 318 of the Income Tax Assessment Act
11
1936) of the entity.
12
(3) A disclosure of information by an individual qualifies for
13
protection under this Part if the disclosure is made to a legal
14
practitioner for the purpose of obtaining legal advice or legal
15
representation in relation to the operation of this Part.
16
(4) In this section:
17
tax affairs means affairs relating to any tax imposed by or under,
18
or assessed or collected under, a law administered by the
19
Commissioner.
20
Note:
There is no requirement for a discloser to identify himself or herself in
21
order for a disclosure to qualify for protection under this Part.
22
14ZZU Eligible whistleblowers
23
An individual is an eligible whistleblower in relation to an entity
24
(within the meaning of the Income Tax Assessment Act 1997) if the
25
individual is, or has been, any of the following:
26
(a) an officer (within the meaning of the Corporations Act 2001)
27
of the entity;
28
(b) an employee of the entity;
29
(c) an individual who supplies services or goods to the entity
30
(whether paid or unpaid);
31
(d) an employee of a person that supplies services or goods to the
32
entity (whether paid or unpaid);
33
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Amendment of the Taxation Administration Act 1953 Part 2
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Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
23
(e) an individual who is an associate (within the meaning of
1
section 318 of the Income Tax Assessment Act 1936) of the
2
entity;
3
(f) a spouse or child of an individual referred to in any of
4
paragraphs (a) to (e);
5
(g) a dependant of an individual referred to in any of
6
paragraphs (a) to (e), or of such an individual's spouse;
7
(h) an individual prescribed by the regulations for the purposes
8
of this paragraph in relation to the entity.
9
14ZZV Eligible recipients
10
(1) Each of the following is an eligible recipient in relation to an entity
11
(within the meaning of the Income Tax Assessment Act 1997):
12
(a) an auditor, or a member of an audit team conducting an audit,
13
of the entity;
14
(b) a registered tax agent or BAS agent (within the meaning of
15
the Tax Agent Services Act 2009) who provides tax agent
16
services (within the meaning of that Act) or BAS services
17
(within the meaning of that Act) to the entity;
18
(c) a person authorised by the entity to receive disclosures that
19
may qualify for protection under this Part;
20
(d) a person or body prescribed for the purposes of this
21
paragraph in relation to the entity.
22
(2) If the entity is a body corporate, each of the following is an eligible
23
recipient in relation to the entity:
24
(a) a director, secretary or senior manager (within the meaning
25
of the Corporations Act 2001) of the body corporate;
26
(b) any other employee or officer (within the meaning of the
27
Corporations Act 2001) of the body corporate who has
28
functions or duties that relate to the tax affairs (within the
29
meaning of section 14ZZT) of the body corporate.
30
(3) If the entity is a trust, each of the following is an eligible recipient
31
in relation to the entity:
32
(a) a trustee of the trust;
33
(b) a person authorised by a trustee of the trust to receive
34
disclosures that may qualify for protection under this Part.
35
Schedule 1 Amendments
Part 2 Amendment of the Taxation Administration Act 1953
24
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
No. , 2017
(4) If the entity is a partnership, each of the following is an eligible
1
recipient in relation to the entity:
2
(a) a partner in the partnership;
3
(b) a person authorised by a partner in the partnership to receive
4
disclosures that may qualify for protection under this Part.
5
(5) Subsections (1), (2), (3) and (4) do not limit each other.
6
14ZZW Confidentiality of whistleblower's identity
7
(1) A person (the first person) commits an offence if:
8
(a) another person (the discloser) makes a disclosure of
9
information (the qualifying disclosure) that qualifies for
10
protection under this Part; and
11
(b) the first person discloses any of the following (the
12
confidential information):
13
(i) the identity of the discloser;
14
(ii) information that is likely to lead to the identification of
15
the discloser; and
16
(c) the confidential information is information that the first
17
person obtained directly or indirectly because of the
18
qualifying disclosure; and
19
(d) the disclosure referred to in paragraph (b) is not authorised
20
under subsection (2).
21
Penalty: Imprisonment for 6 months or 30 penalty units, or both.
22
(2) A disclosure referred to in paragraph (1)(b) is authorised under this
23
subsection if it:
24
(a) is made to the Commissioner; or
25
(b) is made to a member of the Australian Federal Police (within
26
the meaning of the Australian Federal Police Act 1979); or
27
(c) is made to a legal practitioner for the purpose of obtaining
28
legal advice or legal representation in relation to the
29
operation of this Part; or
30
(d) is made to a person or body prescribed by the regulations for
31
the purposes of this paragraph; or
32
(e) is made with the consent of the discloser.
33
(3) Subsection (1) does not apply if:
34
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Amendment of the Taxation Administration Act 1953 Part 2
No. , 2017
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
25
(a) the disclosure referred to in paragraph (1)(b):
1
(i) is not of the identity of the discloser; and
2
(ii) is reasonably necessary for the purposes of investigating
3
misconduct, or an improper state of affairs or
4
circumstances, to which the qualifying disclosure
5
relates; and
6
(b) the first person takes all reasonable steps to reduce the risk
7
that the discloser will be identified as a result of the
8
disclosure referred to in paragraph (1)(b).
9
Note:
A defendant bears an evidential burden in relation to the matter in
10
subsection (3): see subsection 13.3(3) of the Criminal Code.
11
14ZZX Disclosure that qualifies for protection not actionable etc.
12
(1) If a person makes a disclosure that qualifies for protection under
13
this Part:
14
(a) the person is not subject to any civil, criminal or
15
administrative liability (including disciplinary action) for
16
making the disclosure; and
17
(b) no contractual or other remedy may be enforced, and no
18
contractual or other right may be exercised, against the
19
person on the basis of the disclosure; and
20
(c) if the disclosure was a disclosure of information to the
21
Commissioner--the information is not admissible in
22
evidence against the person in criminal proceedings or in
23
proceedings for the imposition of a penalty, other than
24
proceedings in respect of the falsity of the information.
25
Note:
Except as provided for by paragraph (c), this subsection does not
26
prevent the person being subject to any civil, criminal or
27
administrative liability for conduct of the person that is revealed by
28
the disclosure.
29
(2) Without limiting subsection (1):
30
(a) the person has qualified privilege in respect of the disclosure;
31
and
32
(b) a contract to which the person is a party may not be
33
terminated on the basis that the disclosure constitutes a
34
breach of the contract.
35
Schedule 1 Amendments
Part 2 Amendment of the Taxation Administration Act 1953
26
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
No. , 2017
14ZZY Victimisation prohibited
1
Actually causing detriment to another person
2
(1) A person (the first person) commits an offence if:
3
(a) the first person engages in conduct; and
4
(b) the first person's conduct causes any detriment to another
5
person (the second person); and
6
(c) when the first person engages in the conduct, the first person
7
believes or suspects that the second person or any other
8
person made, may have made, proposes to make or could
9
make a disclosure that qualifies for protection under this Part;
10
and
11
(d) the belief or suspicion referred to in paragraph (c) is the
12
reason, or part of the reason, for the conduct.
13
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
14
Threatening to cause detriment to another person
15
(2) A person (the first person) commits an offence if:
16
(a) the first person makes to another person (the second person)
17
a threat to cause any detriment to the second person or to a
18
third person; and
19
(b) the first person:
20
(i) intends the second person to fear that the threat will be
21
carried out; or
22
(ii) is reckless as to causing the second person to fear that
23
the threat will be carried out; and
24
(c) the first person makes the threat because a person:
25
(i) makes a disclosure that qualifies for protection under
26
this Part; or
27
(ii) may make a disclosure that would qualify for protection
28
under this Part.
29
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
30
Threats
31
(3) For the purposes of subsection (2), a threat may be:
32
Amendments Schedule 1
Amendment of the Taxation Administration Act 1953 Part 2
No. , 2017
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
27
(a) express or implied; or
1
(b) conditional or unconditional.
2
(4) In a prosecution for an offence against subsection (2), it is not
3
necessary to prove that the person threatened actually feared that
4
the threat would be carried out.
5
Detriment
6
(5) In this section, detriment includes (without limitation) any of the
7
following:
8
(a) dismissal of an employee;
9
(b) injury of an employee in his or her employment;
10
(c) alteration of an employee's position or duties to his or her
11
disadvantage;
12
(d) discrimination between an employee and other employees of
13
the same employer;
14
(e) harassment or intimidation of a person;
15
(f) harm or injury to a person, including psychological harm;
16
(g) damage to a person's property;
17
(h) damage to a person's reputation;
18
(i) damage to a person's business or financial position;
19
(j) any other damage to a person.
20
14ZZZ Compensation and other remedies--circumstances in which
21
an order may be made
22
(1) A court may make an order under section 14ZZZA in relation to a
23
person (the first person) if:
24
(a) the first person engages in conduct (victimising conduct)
25
that:
26
(i) causes any detriment (within the meaning of
27
section 14ZZY) to another person (the second person);
28
or
29
(ii) constitutes the making of a threat to cause any such
30
detriment to another person (the second person); and
31
(b) when the first person engages in the victimising conduct, the
32
first person believes or suspects that the second person or any
33
other person made, may have made, proposes to make or
34
Schedule 1 Amendments
Part 2 Amendment of the Taxation Administration Act 1953
28
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
No. , 2017
could make a disclosure that qualifies for protection under
1
this Part; and
2
(c) the belief or suspicion referred to in paragraph (b) is the
3
reason, or part of the reason, for the victimising conduct.
4
(2) A court may make an order under section 14ZZZA in relation to a
5
person (the first person) if:
6
(a) the first person is or was an officer (within the meaning of
7
the Corporations Act 2001) or employee of a body corporate;
8
and
9
(b) paragraphs (1)(a), (b) and (c) of this section apply to the body
10
corporate because of victimising conduct engaged in by the
11
body corporate; and
12
(c) the first person:
13
(i) aided, abetted, counselled or procured the victimising
14
conduct; or
15
(ii) induced, whether by threats or promises or otherwise,
16
the victimising conduct; or
17
(iii) was in any way, by act or omission, directly or
18
indirectly, knowingly concerned in, or party to, the
19
victimising conduct; or
20
(iv) conspired with others to effect the victimising conduct.
21
Threats
22
(3) For the purposes of this section, a threat may be:
23
(a) express or implied; or
24
(b) conditional or unconditional.
25
(4) In proceedings for the purposes of section 14ZZZA, it is not
26
necessary to prove that the person threatened actually feared that
27
the threat would be carried out.
28
14ZZZA Compensation and other remedies--orders that may be
29
made
30
(1) For the purposes of subsections 14ZZZ(1) and (2), a court may
31
make any of the following orders:
32
Amendments Schedule 1
Amendment of the Taxation Administration Act 1953 Part 2
No. , 2017
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
29
(a) an order requiring the first person to compensate the second
1
person, or any other person, for loss, damage or injury
2
suffered as a result of the victimising conduct;
3
(b) if the court is satisfied that the first person engaged in the
4
victimising conduct in connection with the first person's
5
position as an employee:
6
(i) an order requiring the first person to compensate the
7
second person, or any other person, for a part of loss,
8
damage or injury as a result of the victimising conduct,
9
and an order requiring the first person's employer to
10
compensate the second person, or any other person, for
11
a part of loss, damage or injury as a result of the
12
victimising conduct; or
13
(ii) an order requiring the first person and the first person's
14
employer jointly to compensate the second person, or
15
any other person, for loss, damage or injury suffered as
16
a result of the victimising conduct; or
17
(iii) an order requiring the first person's employer to
18
compensate the second person, or any other person, for
19
loss, damage or injury as a result of the victimising
20
conduct;
21
(c) an order granting an injunction, on such terms as the court
22
thinks appropriate, to prevent, stop or remedy the effects of
23
the victimising conduct;
24
(d) an order requiring the first person to apologise to the second
25
person, or any other person, for engaging in the victimising
26
conduct;
27
(e) if the second person is or was employed in a particular
28
position and the victimising conduct wholly or partly
29
consists, or consisted, of the termination, or purported
30
termination, of the second person's employment--an order
31
that the second person be reinstated in that position or a
32
position at a comparable level;
33
(f) if the court thinks it is appropriate--an order requiring the
34
first person to pay exemplary damages to the second person,
35
or any other person;
36
(g) any other order the court thinks appropriate.
37
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Part 2 Amendment of the Taxation Administration Act 1953
30
Treasury Laws Amendment (Enhancing Whistleblower Protections)
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No. , 2017
(2) In any proceeding where a person seeks an order under
1
subsection (1) in relation to another person:
2
(a) the person seeking the order bears the onus of adducing or
3
pointing to evidence that suggests a reasonable possibility of
4
the matters in paragraph 14ZZZ(1)(a); and
5
(b) if that onus is discharged--the other person bears the onus of
6
proving that the claim is not made out.
7
Note:
The onus mentioned in paragraph (2)(a) applies in relation to the
8
matters in paragraph 14ZZZ(1)(a) whether those matters relate to the
9
first person, as referred to in paragraph 14ZZZ(1)(a), or to a body
10
corporate, as referred to in paragraph 14ZZZ(2)(b).
11
(3) The court must not make an order under paragraph (1)(b) if the
12
first person's employer establishes that it took reasonable
13
precautions, and exercised due diligence, to avoid the victimising
14
conduct.
15
(4) If the court makes an order under subparagraph (1)(b)(ii), the first
16
person and the first person's employer are jointly and severally
17
liable to pay the compensation concerned.
18
14ZZZB Identifying information not to be disclosed etc. to courts or
19
tribunals
20
If a person (the discloser) makes a disclosure of information that
21
qualifies for protection under this Part, the discloser or any other
22
person is not to be required:
23
(a) to disclose to a court or tribunal:
24
(i) the identity of the discloser; or
25
(ii) information that is likely to lead to the identification of
26
the discloser; or
27
(b) to produce to a court or tribunal a document containing:
28
(i) the identity of the discloser; or
29
(ii) information that is likely to lead to the identification of
30
the discloser;
31
except where:
32
(c) it is necessary to do so for the purposes of giving effect to
33
this Part; or
34
(d) the court or tribunal thinks it necessary in the interests of
35
justice to do so.
36
Amendments Schedule 1
Amendment of the Taxation Administration Act 1953 Part 2
No. , 2017
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
31
Note:
A discloser may also be able to apply to the court or tribunal, in
1
accordance with the rules of the court or tribunal, for an order
2
protecting the discloser's identity.
3
14ZZZC Costs only if proceedings instituted vexatiously etc.
4
(1) This section applies to a proceeding (including an appeal) in a
5
court in relation to a matter arising under section 14ZZZA in which
6
a person (the claimant) is seeking an order under
7
subsection 14ZZZA(1).
8
(2) The claimant must not be ordered by the court to pay costs incurred
9
by another party to the proceedings, except in accordance with
10
subsection (3) of this section.
11
(3) The claimant may be ordered to pay the costs only if:
12
(a) the court is satisfied that the claimant instituted the
13
proceedings vexatiously or without reasonable cause; or
14
(b) the court is satisfied that the claimant's unreasonable act or
15
omission caused the other party to incur the costs.
16
14ZZZD Interaction between civil proceedings and criminal
17
offences
18
To avoid doubt, a person may bring civil proceedings under
19
section 14ZZZA in relation to conduct even if a prosecution for a
20
criminal offence against section 14ZZY in relation to the conduct
21
has not been brought, or cannot be brought.
22
14ZZZE Compensation for acquisition of property
23
(1) If the operation of this Part would result in an acquisition of
24
property (within the meaning of paragraph 51(xxxi) of the
25
Constitution) from a person otherwise than on just terms (within
26
the meaning of that paragraph), the Commonwealth is liable to pay
27
a reasonable amount of compensation to the person.
28
(2) If the Commonwealth and the person do not agree on the amount
29
of the compensation, the person may institute proceedings in the
30
Federal Court of Australia or the Supreme Court of a State or
31
Territory for the recovery from the Commonwealth of such
32
reasonable amount of compensation as the court determines.
33
Schedule 1 Amendments
Part 2 Amendment of the Taxation Administration Act 1953
32
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
No. , 2017
(3) Payments under this section are to be made out of money
1
appropriated by the Parliament by another Act.
2
(4) To avoid doubt, section 16 does not apply to a payment under this
3
section.
4
16 Application
5
The amendments made by this Part apply in relation to disclosures that:
6
(a) are made at or after the time this Part commences (the
7
commencement time); and
8
(b) relate to matters that occur or occurred before, at or after the
9
commencement time.
10
Amendments Schedule 1
Other amendments Part 3
No. , 2017
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
33
Part 3--Other amendments
1
Banking Act 1959
2
17 Part VIA (after the heading)
3
Insert:
4
Note:
For protections for whistleblowers, see Part 9.4AAA of the Corporations Act 2001.
5
18 Division 1 of Part VIA
6
Repeal the Division.
7
19 Division 2 of Part VIA (heading)
8
Repeal the heading.
9
20 Application
10
Despite the repeal of Division 1 of Part VIA of the Banking Act 1959 by
11
item 18, that Division continues to apply, at and after the
12
commencement of this item, in relation to:
13
(a) disclosures of information made before that commencement;
14
and
15
(b) conduct referred to in subsection 52C(1) of the Banking Act
16
1959, as in force immediately before that commencement,
17
that is engaged in before that commencement; and
18
(c) a threat referred to in subsection 52C(2) of the Banking Act
19
1959, as in force immediately before that commencement,
20
that is made before that commencement.
21
Insurance Act 1973
22
21 Division 4 of Part IIIA (after the heading)
23
Insert:
24
Note:
For protections for whistleblowers, see Part 9.4AAA of the Corporations Act 2001.
25
22 Subdivision A of Division 4 of Part IIIA
26
Repeal the Subdivision.
27
Schedule 1 Amendments
Part 3 Other amendments
34
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
No. , 2017
23 Subdivision B of Division 4 of Part IIIA (heading)
1
Repeal the heading.
2
24 Application
3
Despite the repeal of Subdivision A of Division 4 of Part IIIA of the
4
Insurance Act 1973 by item 22, that Subdivision continues to apply, at
5
and after the commencement of this item, in relation to:
6
(a) disclosures of information made before that commencement;
7
and
8
(b) conduct referred to in subsection 38C(1) of the Insurance Act
9
1973, as in force immediately before that commencement,
10
that is engaged in before that commencement; and
11
(c) a threat referred to in subsection 38C(2) of the Insurance Act
12
1973, as in force immediately before that commencement,
13
that is made before that commencement.
14
Life Insurance Act 1995
15
25 Division 5 of Part 7 (after the heading)
16
Insert:
17
Note:
For protections for whistleblowers, see Part 9.4AAA of the Corporations Act 2001.
18
26 Subdivision A of Division 5 of Part 7
19
Repeal the Subdivision.
20
27 Subdivision B of Division 5 of Part 7 (heading)
21
Repeal the heading.
22
28 Application
23
Despite the repeal of Subdivision A of Division 5 of Part 7 of the Life
24
Insurance Act 1995 by item 26, that Subdivision continues to apply, at
25
and after the commencement of this item, in relation to:
26
(a) disclosures of information made before that commencement;
27
and
28
(b) conduct referred to in subsection 156C(1) of the Life
29
Insurance Act 1995, as in force immediately before that
30
Amendments Schedule 1
Other amendments Part 3
No. , 2017
Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017
35
commencement, that is engaged in before that
1
commencement; and
2
(c) a threat referred to in subsection 156C(2) of the Life
3
Insurance Act 1995, as in force immediately before that
4
commencement, in relation to such disclosures, that is made
5
before that commencement.
6
Superannuation Industry (Supervision) Act 1993
7
29 Part 29A (after the heading)
8
Insert:
9
Note:
For protections for whistleblowers, see Part 9.4AAA of the Corporations Act 2001.
10
30 Division 1 of Part 29A
11
Repeal the Division.
12
31 Division 2 of Part 29A (heading)
13
Repeal the heading.
14
32 Application
15
Despite the repeal of Division 1 of Part 29A of the Superannuation
16
Industry (Supervision) Act 1993 by item 30, that Division continues to
17
apply, at and after the commencement of this item, in relation to:
18
(a) disclosures of information made before that commencement;
19
and
20
(b) conduct referred to in subsection 336C(1) of the
21
Superannuation Industry (Supervision) Act 1993, as in force
22
immediately before that commencement, that is engaged in
23
before that commencement; and
24
(c) a threat referred to in subsection 336C(2) of the
25
Superannuation Industry (Supervision) Act 1993, as in force
26
immediately before that commencement, that is made before
27
that commencement.
28
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