Treasury Laws Amendment (Whistleblowers) Bill 2017 - Exposure Draft
The submission to the Treasury on the Exposure Draft Treasury Laws Amendment (Whistleblowers) Bill 2017 (the Bill) was prepared by the Law Council.
The Law Council is grateful for the assistance of the Corporations Committee, Foreign Corrupt Practices Committee and Taxation Law Committee of the Business Law Section of the Law Council of Australia, the Law Council’s National Criminal Law Committee, Law Society of New South Wales and the Law Institute of Victoria in the preparation of this submission.
The Bill seeks to create a single whistleblower protection regime in the Corporations Act 2001 (Cth) (Corporations Act) to cover the corporate, financial and credit sectors, and create a new whistleblower protection regime in the taxation law, including the Taxation Administration Act 1953 (Cth) (TAA), to protect those who expose tax misconduct. The reforms to the Corporations Act include:
- expanding the protections to a broader class of people;
- expanding the types of disclosures that will be protected under the framework;
- allowing disclosures to parliamentarians and the media in certain circumstances, if preconditions are satisfied;
- imposing new stringent obligations to maintain the confidentiality of a whistleblower’s identity;
- making it significantly easier for a whistleblower to bring a claim for compensation where he or she has been victimised;
- creating a new civil penalty offence so that law enforcement agencies will be able to take action against companies where the civil standard of proof can be met; and
- requiring all large companies to have a whistleblower policy in place, with penalties for failing to do so.
The new whistleblower protections in the taxation law are broadly consistent with the enhanced protections under the Corporations Act, and will facilitate disclosures about tax misconduct being made directly to the Australian Taxation Office (ATO).1
The Law Council strongly supports significant reform of whistleblowing laws in Australia and the broad thrust and intent of the Bill.
However, the Law Council considers that the Bill does not currently address several requirements for a comprehensive whistleblower regime, as identified by the Parliamentary Joint Committee on Corporations and Financial Services (the Committee) Whistleblower Protections Report (September 2017) (the Report).
The Law Council’s primary recommendation is that the Expert Advisory Panel and the Treasury assess the Bill against the Report to ensure a comprehensive whistleblower regime is achieved. This should occur prior to the introduction of the Bill into Parliament to ensure appropriate alignment of whistleblower laws.
You can read the full submission below.