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Corporations (Aboriginal and Torres Strait Islander) Bill 2006

Part 10-5 Protection for whistleblowers

Division 466 Which disclosures qualify for protection under this Part?

466-1   Disclosures qualifying for protection

             (1)  A disclosure of information by a person (the discloser ) qualifies for protection under this Part if:

                     (a)  the discloser is:

                              (i)  an officer or contact person of an Aboriginal and Torres Strait Islander corporation; or

                             (ii)  an employee of an Aboriginal and Torres Strait Islander corporation; or

                            (iii)  a person who has a contract for the supply of services or goods to an Aboriginal and Torres Strait Islander corporation; or

                            (iv)  an employee of a person who has a contract for the supply of services or goods to an Aboriginal and Torres Strait Islander corporation; and

                     (b)  the disclosure is made to:

                              (i)  the Registrar; or

                             (ii)  the corporation’s auditor or a member of an audit team conducting an audit of the corporation; or

                            (iii)  a director, secretary or senior manager of the corporation; or

                            (iv)  a person authorised by the corporation to receive disclosures of that kind; and

                     (c)  the discloser informs the person to whom the disclosure is made of the discloser’s name before making the disclosure; and

                     (d)  the discloser has reasonable grounds to suspect that the information indicates that:

                              (i)  the corporation has, or may have, contravened a provision of this Act; or

                             (ii)  an officer or employeeof the corporation has, or may have, contravened a provision of this Act; and

                     (e)  the discloser makes the disclosure in good faith.

             (2)  A reference in subsection (1) to a person contravening a provision of this Act includes a reference to a person committing an offence against, or based on, a provision of this Act.

Note:          This subsection causes section 11.6 of the Criminal Code to operate in relation to such references.



 

Division 469 Effects of disclosure

469-1   Disclosure that qualifies for protection not actionable etc.

             (1)  If a person makes a disclosure that qualifies for protection under this Part:

                     (a)  the person is not subject to any civil or criminal liability for making the disclosure; and

                     (b)  no contractual or other remedy may be enforced, and no contractual or other right may be exercised, against the person on the basis of the disclosure.

Note:          This subsection does not provide that the person is not subject to any civil or criminal liability for conduct of the person that is revealed by the disclosure.

             (2)  Without limiting subsection (1):

                     (a)  the person has qualified privilege in respect of the disclosure; and

                     (b)  a contract to which the person is a party may not be terminated on the basis that the disclosure constitutes a breach of the contract.

             (3)  Without limiting paragraphs (1)(b) and (2)(b), if a court is satisfied that:

                     (a)  a person (the employee ) is employed in a particular position under a contract of employment with another person (the employer ); and

                     (b)  the employee makes a disclosure that qualifies for protection under this Part; and

                     (c)  the employer purports to terminate the contract of employment on the basis of the disclosure;

the court may order that the employee be reinstated in that position or a position at a comparable level.

469-5   Victimisation prohibited

Actually causing detriment to another person

             (1)  A person (the first person ) contravenes this subsection if:

                     (a)  the first person engages in conduct; and

                     (b)  the first person’s conduct causes any detriment to another person (the second person ); and

                     (c)  the first person intends that his or her conduct cause detriment to the second person; and

                     (d)  the first person engages in his or her conduct because the second person or a third person made a disclosure that qualifies for protection under this Part.

Penalty:  25 penalty units or imprisonment for 6 months, or both.

Threatening to cause detriment to another person

             (2)  A person (the first person ) contravenes this subsection if:

                     (a)  the first person makes to another person (the second person) a threat to cause any detriment to the second person or to a third person; and

                     (b)  the first person:

                              (i)  intends the second person to fear that the threat will be carried out; or

                             (ii)  is reckless as to causing the second person to fear that the threat will be carried out; and

                     (c)  the first person makes the threat because a person:

                              (i)  makes a disclosure that qualifies for protection under this Part; or

                             (ii)  may make a disclosure that would qualify for protection under this Part.

Penalty:  25 penalty units or imprisonment for 6 months, or both.

Officers and employees involved in contravention

             (3)  If an Aboriginal and Torres Strait Islander corporation contravenes subsection (1) or (2), any officer or employee of the corporation who is involved in that contravention contravenes this subsection.

Penalty:  25 penalty units or imprisonment for 6 months, or both.

Threats

             (4)  For the purposes of subsection (2), a threat may be:

                     (a)  express or implied; or

                     (b)  conditional or unconditional.

             (5)  In a prosecution for an offence against subsection (2), it is not necessary to prove that the person threatened actually feared that the threat would be carried out.

469-10   Right to compensation

                   If:

                     (a)  a person (the person in contravention ) contravenes subsection 469-5(1), (2) or (3); and

                     (b)  a person (the victim) suffers damage because of the contravention;

the person in contravention is liable to compensate the victim for the damage.



 

Division 472 Confidentiality requirement

472-1   Confidentiality requirements for corporations, corporation officers and employees and auditors

             (1)  A person (the offender ) commits an offence against this subsection if:

                     (a)  a person (the discloser ) makes a disclosure of information (the qualifying disclosure ) that qualifies for protection under this Part; and

                     (b)  the qualifying disclosure relates to a contravention or possible contravention of a provision of this Act by:

                              (i)  an Aboriginal and Torres Strait Islander corporation; or

                             (ii)  an officer or employee of the corporation; and

                     (c)  the qualifying disclosure is made to:

                              (i)  the corporation’s auditor or a member of an audit team conducting an audit of the corporation; or

                             (ii)  a director, secretary or senior manager of the corporation; or

                            (iii)  a person authorised by the corporation to receive disclosures of that kind; and

                     (d)  the offender is:

                              (i)  the corporation’s auditor or a member of an audit team conducting an audit of the corporation; or

                             (ii)  a director, secretary or senior manager of the corporation; or

                            (iii)  a person authorised by the corporation to receive disclosures of that kind; or

                            (iv)  the corporation; or

                             (v)  any officer or employee of the corporation; and

                     (e)  the offender discloses one of the following (the confidential information ):

                              (i)  the information disclosed in the qualifying disclosure;

                             (ii)  the identity of the discloser;

                            (iii)  information that is likely to lead to the identification of the discloser; and

                      (f)  the confidential information is information that the offender obtained directly or indirectly because of the qualifying disclosure; and

                     (g)  either:

                              (i)  the offender is the person to whom the qualifying disclosure is made; or

                             (ii)  the offender is a person to whom the confidential information is disclosed in contravention of this section and the offender knows that the disclosure of the confidential information to the offender was unlawful or made in breach of confidence; and

                     (h)  the disclosure referred to in paragraph (e) is not authorised under subsection (2).

Penalty:  25 penalty units.

             (2)  The disclosure referred to in paragraph (1)(e) is authorised under this subsection if it:

                     (a)  is made to:

                              (i)  the Registrar; or

                             (ii)  ASIC; or

                            (iii)  the Australian Prudential Regulation Authority; or

                     (b)  is made to a member or special member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979 ); or

                     (c)  is made to a member (however described) of a police force of a State or Territory; or

                     (d)  is made to someone else with the consent of the discloser.