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Part 4—Protecting whistleblowers

Part 4 Protecting whistleblowers

 

13   Disclosures qualifying for whistleblower protection

             (1)  This section applies to a disclosure of information made by any person (the discloser ) to the Commission, including, any of the following:

                     (a)  a consumer;

                     (b)  an officer of a banking or financial services provider;

                     (c)  an employee of a banking or financial services provider;

                     (d)  a person who has a contract for the supply of services or goods to a banking or financial services provider;

                     (e)  an employee of a person who has a contract for the supply of services or goods to a banking or financial services provider.

             (2)  The disclosure of the information by the discloser qualifies for protection under this Part if:

                     (a)  the discloser informs the Commission of the discloser’s name before making the disclosure; and

                     (b)  the discloser considers that the information may assist the Commission to perform the Commission’s functions or duties; and

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

14   Whistleblower protection for disclosures that qualify

             (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.

             (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 must 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.

             (4)  If an individual makes a disclosure of information that qualifies for protection under this Part, the information is not admissible in evidence against the individual in criminal proceedings or in proceedings for the imposition of a penalty, other than proceedings in respect of the falsity of the information.

15   Victimisation of whistleblowers prohibited

Actually causing detriment to another person

             (1)  A person commits an offence if:

                     (a)  the person engag es in conduct; and

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

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

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

Penalty:

                     (a)  for an individual—25 penalty unit s or imprisonment for 6 months, or both; or

                     (b)  for a body corporate—250 penalty units.

Threatening to cause detriment to another person

             (2)  A person (the first person ) commits an offence if:

                     (a)  the first person makes a threat to another person (the second person ) 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)  made a disclosure that qualifies for protection under this Part; or

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

Penalty:

                     (a)  for an individual—25 penalty units or imprisonment for 6 months, or both; or

                     (b)  for a body corporate—250 penalty units.

Threats

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

                     (a)  express or implied; or

                     (b)  conditional or unconditional.

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

Definition

             (5)  In this section:

engage in conduct means:

                     (a)  do an act; or

                     (b)  omit to do an act.

16   Right to compensation

                   If:

                     (a)  a person:

                              (i)  commits an offence under subsection 15(1) or (2); or

                             (ii)  commits an offence under Part 2.4 of the Criminal Code in relation to subsection 15(1) or (2); and

                     (b)  another person suffers damage because of the conduct constituting the offence or because of the contravention;

the person is liable to compensate the other person for the damage.