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Snapshot

  • The Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017 provides only limited protection of disclosures to third parties.
  • ‘No confidence in an iniquity’ means both criminal and civil wrongs cannot be subject of a duty of confidentiality.
  • Contracts that seek to restrain disclosure of illegality even to third parties will be unenforceable.

Whistleblowing is … a process whereby an organisational insider with knowledge of wrongdoing takes steps to disclose that information to a party capable of intervention … For private organisations too, encouraging internal whistleblowing can be a useful risk management strategy by providing early warning of difficult to detect misconduct, such as corporate crime or fraud. It can thus enhance the transparency, integrity and resilience of global markets as well as government. (Parker, Le Mire and Mackay, ‘Lawyers, Confidentiality and Whistleblowing: Lessons from the McCabe Tobacco Litigation’, (2016) 40(3) Melbourne University Law Review 10-12)

The Commonwealth Parliament has evidently determined that whistleblowers do indeed need additional protection and has published an exposure draft of legislation designed to enhance protections for whistleblowers. The Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017, when enacted, will broaden protection for whistleblowers who lodge complaints about specified ‘Eligible Disclosures’ with Australian Securities and Investment Commission (‘ASIC’), Australian Prudential Regulatory Authority (‘APRA’), the Australian Federal Police (‘AFP’) and internally. ‘Eligible Disclosures’ will relate to the Corporations Act (2001) and cognate legislation and ‘improper affairs or circumstances’. In a significant broadening of the protection, disclosure of offences against any Commonwealth Act punishable by more than one year’s imprisonment will be eligible.

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