Financial Sector Legislation Amendment (Simplifying Regulation and Review) Act 2007 (154 of 2007)

Schedule 1   Streamlining prudential regulation

Part 1   Amendments commencing on Royal Assent

Superannuation Industry (Supervision) Act 1993

154   After Part 29

Insert:

Part 29A - Protections in relation to information

Division 1 - Protection for whistleblowers

336A Disclosures qualifying for whistleblower protection

(1) This section applies to a disclosure of information by a person (the discloser ) who is, in relation to a superannuation entity, any of the following:

(a) a trustee of the superannuation entity;

(b) an officer of a body corporate that is a trustee, custodian or investment manager of the superannuation entity;

(c) an employee of an individual referred to in paragraph (a) or a body corporate referred to in paragraph (b);

(d) a person who has a contract for the supply of services or goods to an individual referred to in paragraph (a) or a body corporate referred to in paragraph (b);

(e) an employee of a person referred to in paragraph (d).

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

(a) the disclosure is made to any of the following:

(i) the Regulator;

(ii) the actuary or auditor of the superannuation entity;

(iii) an individual who is a trustee of the superannuation entity;

(iv) a director of a body corporate that is the trustee of the superannuation entity;

(v) a person authorised by the trustee or trustees of the superannuation entity to receive disclosures of that kind; and

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

(c) both:

(i) the information concerns misconduct, or an improper state of affairs or circumstances, in relation to the superannuation entity or a trustee of the entity; and

(ii) the discloser considers that the information may assist a person referred to in paragraph (a) to perform the person’s functions in relation to the superannuation entity or trustee; and

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

(3) In this section, officer has the same meaning as it has in the Corporations Act 2001.

336B Whistleblower protection for disclosures that qualify

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

(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 Division; 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 Division, 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.

336C Victimisation of whistleblowers prohibited

Actually causing detriment to another person

(1) A person commits an offence if:

(a) the person engages 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 Division.

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

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 Division; or

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

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

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.

336D Right to compensation

If:

(a) a person:

(i) commits an offence under subsection 336C(1) or (2); or

(ii) commits an offence under Part 2.4 of the Criminal Code in relation to subsection 336C(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.

336E Confidentiality requirement for company, company officers and employees and auditors

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

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

(b) the disclosure is made to:

(i) the auditor of, or a member of an audit team conducting an audit of, the superannuation entity; or

(ii) an individual who is a trustee of the superannuation entity; or

(iii) a director of a body corporate that is the trustee, custodian or investment manager of the superannuation entity; or

(iv) a person authorised by the trustee or trustees of the superannuation entity to receive disclosures of that kind; and

(c) the offender is:

(i) the auditor of, or a member of an audit team conducting an audit of, the superannuation entity; or

(ii) an individual who is the trustee of the superannuation entity; or

(iii) a director of a body corporate that is the trustee, custodian or investment manager of the superannuation entity; or

(iv) a person authorised by the trustee or trustees of the superannuation entity to receive disclosures of that kind; or

(v) an officer or employee of a body corporate that is the trustee, custodian or investment manager of the superannuation entity; and

(d) the offender discloses any of the following information (the confidential information ):

(i) the information referred to in paragraph (a);

(ii) the identity of the discloser;

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

(e) the confidential information is information that the offender obtained directly or indirectly because of the disclosure referred to in paragraph (a); and

(f) either:

(i) the offender is the person to whom the disclosure referred to in paragraph (a) 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

(g) the disclosure referred to in paragraph (d) is not authorised under subsection (2).

Penalty: 25 penalty units.

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

(a) it is made to APRA; or

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

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

(3) In this section, officer has the same meaning as it has in the Corporations Act 2001.

Division 2 - Self-incrimination

336F Self-incrimination

(1) A person is not excused from complying with a requirement under this Act or the Financial Sector (Collection of Data) Act 2001 to give information to APRA on the ground that doing so would tend to incriminate the person or make the person liable to a penalty.

(2) However, if the person is an individual, the information given by the individual in compliance with the requirement 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, if:

(a) before giving the information, the individual claims that giving the information might tend to incriminate the individual or make the individual liable to a penalty; and

(b) giving the information might in fact tend to incriminate the individual or make the individual liable to a penalty.

(3) This section does not apply in relation to a requirement under section 129 or 130 or under Part 25.

Note 1: See section 130B in relation to requirements under section 129 or 130.

Note 2: See section 287 in relation to requirements under Part 25.