The Minister for Financial Services, Superannuation and Corporate Law, the Hon Chris Bowen MP, has released an options paper exploring strategies for improving protections for corporate whistleblowers.
Currently, corporate whistleblowers are protected under Part 9.4AAA of the Corporations Act 2001. (section 1317AA)
- who is allowed to qualify for protection as a whistleblower – former employees, for example, currently do not qualify;
- what types of issues can be disclosed under the protections – some matters which ASIC can investigate cannot currently be the subject of a protected disclosure;
- whether motive should affect protection – currently an individual with malicious motives cannot be protected even if the information they disclose is genuine;
- whether anonymity should affect protection – many whistleblowers may wish to be anonymous, but if they do not disclose their name from the start then, should they later need to come forward, such as to give evidence, they cannot be protected;
- when can a Court can order the production of documents which reveal a whistleblower’s identity – there is concern that whistleblowers will be discouraged from coming forward unless there is further guidance on this issue;
- what confidentiality restrictions should apply to those receiving disclosures second-hand – there may be a loophole in post-disclosure confidentiality protections; and
- whether prospective whistleblowers should be protected for seeking legal advice – this may encourage more whistleblowers to come forward by providing greater certainty in relation to how the law operates.
Several of the potential reforms also relate to the whistleblower protections provided by the banking and insurance prudential legislation.
The closing date for submissions is 21st December 2009.