Corporations Act 2001

CHAPTER 9 - MISCELLANEOUS  

PART 9.4AAA - PROTECTION FOR WHISTLEBLOWERS  

Note: This Part applies in relation to CCIVs with modifications: see 1242E .

SECTION 1317AD   COMPENSATION AND OTHER REMEDIES - CIRCUMSTANCES IN WHICH AN ORDER MAY BE MADE  

1317AD(1)    
A court may make an order under section 1317AE in relation to a person (the first person ) if:

(a) the first person engages in conduct ( detrimental conduct ) that:

(i) causes any detriment to another person (the second person ); or

(ii) constitutes the making of a threat to cause any such detriment to another person (the second person ); and

(b) when the first person engages in the detrimental conduct, the first person believes or suspects that the second person or any other person made, may have made, proposes to make or could make a disclosure that qualifies for protection under this Part; and

(c) the belief or suspicion referred to in paragraph (b) is the reason, or part of the reason, for the detrimental conduct.

1317AD(2)    
A court may make an order under section 1317AE in relation to a person (the first person ) if:

(a) the first person is or was an officer or employee of a body corporate; and

(b) paragraphs (1)(a), (b) and (c) of this section apply to the body corporate because of detrimental conduct engaged in by the body corporate; and

(c) the first person:

(i) aided, abetted, counselled or procured the detrimental conduct; or

(ii) induced, whether by threats or promises or otherwise, the detrimental conduct; or

(iii) was in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the detrimental conduct; or

(iv) conspired with others to effect the detrimental conduct.

1317AD(2A)    
A court may make an order under section 1317AE in relation to a person (the first person ) that is a body corporate if:

(a) another person (the third person ) engages in conduct ( detrimental conduct ) that:

(i) causes any detriment to a person (the second person ) other than the first person or the third person; or

(ii) constitutes the making of a threat to cause any such detriment to a person (the second person ) other than the first person or the third person; and

(b) when the third person engages in the detrimental conduct, the third person believes or suspects that the second person or any other person made, may have made, proposes to make or could make a disclosure that qualifies for protection under this Part; and

(c) the belief or suspicion referred to in paragraph (b) is the reason, or part of the reason, for the detrimental conduct; and

(d) the first person is under a duty to prevent the third person engaging in the detrimental conduct, or a duty to take reasonable steps to ensure that the third person does not engage in the detrimental conduct; and

(e) the first person fails in part or whole to fulfil that duty.

Burden of proof

1317AD(2B)    
In proceedings where a person seeks an order under section 1317AE in relation to another person:

(a) the person seeking the order bears the onus of adducing or pointing to evidence that suggests a reasonable possibility of the matters in:

(i) if subsection (1) of this section applies - paragraph (1)(a); or

(ii) if subsection (2) of this section applies - paragraph (1)(a), as mentioned in paragraph (2)(b); or

(iii) if subsection (2A) of this section applies - paragraphs (2A)(a) and (d); and

(b) if that onus is discharged - the other person bears the onus of proving that the claim is not made out.

Threats

1317AD(3)    
For the purposes of this section, a threat may be:

(a) express or implied; or

(b) conditional or unconditional.

1317AD(4)    
In proceedings for the purposes of section 1317AE , it is not necessary to prove that the person threatened actually feared that the threat would be carried out.