Key News Summary – The Senate passed the ‘Whistleblowers’ bill with 58 Government amendments, designed largely to meet Senator Rex Patrick’s concerns, in the Senate Committee – relating to eligible recipients, public interest and emergency disclosures, detrimental conduct and civil remedies.
On Thursday 6 December, 2018, the Senate passed the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017 , with 58 Government amendments designed to meet the concerns of Senator Rex Patrick in his Dissenting Senate Economics Legislation Committee Report. The Bill will return to the Lower House, to consider these amendments. I note that this Bill was introduced over a year ago on 7.12.17.
The Bill is designed to
- create a single whistleblower protection regime in the Corporations Act, to cover the corporate, financial and credit sectors, and to
- create a new whistleblower protection regime in the taxation law, to protect those who expose tax misconduct.
The thrust of the Bill has been covered by Tax Technical before – see, for instance, the article on Senate Committee’s Report (and see links to other articles).
The amendments are summarised in the Supplementary Explanatory Memorandum [para 1.5] as follows.
- remove one category of ‘eligible recipients’ to whom a protected disclosure may be made: a whistleblower’s supervisor or manager;
- introduce a new category of eligible recipient: senior managers;
- replace the protection of emergency disclosures with two categories of protected disclosures:
- an amended emergency disclosure category based on substantial and imminent danger to a person’s health and safety, or the natural environment, and
- a new public interest limb based on a broad public interest test;
- amend the definition of ‘journalist’ for the purposes of the emergency disclosure and public interest disclosure categories so the definition applies to all journalists working for the national broadcasters;
- exclude most disclosures of personal work-related grievances from protection;
- allow whistleblowers to make a claim for compensation when a body corporate breaches a duty it owes to the whistleblower to prevent a third person engaging in detrimental conduct (formerly labelled victimising conduct) towards them;
- remove due diligence as a complete defence to certain compensation orders and instead incorporate due diligence as a factor the courts may consider in making these compensation order;
- provide that a court making a compensation order must consider the period a person is likely to be without employment in circumstances where the detrimental conduct involved termination of employment;
- increase penalties in line with the penalty framework established under the Penalties Bill; and
- include a requirement for a post-implementation review of the amended whistleblower laws five years after the amendments commence.
- Is the Bill law yet?
- These amendments address concerns expressed, in whose dissenting report (for the investigation, conducted by Senate Economics Legislation Committee)?
- Will emergency disclosures now be based on a ‘broad public interest test’?
- What will ‘victimising conduct’ now be called?
- For what purpose will, the length of time a whistleblower is likely to be without employment, be relevant?