Zed Seselja (ACT, Liberal Party, Assistant Minister for Treasury and Finance) Share this | Hansard source

I table a supplementary explanatory memorandum relating to the government amendments to be moved to this bill, and I seek leave to move amendments (1), (6) and (8) to (58) on sheet GP170 together.

Leave granted.

I move:

That:

(1) Clause 2, page 2 (table item 2), omit the table item, substitute:

2. Schedule 1, Parts 1, 2 and 3

The first 1 January, 1 April, 1 July or 1 October to occur after the end of the period of 3 months beginning on the day this Act receives the Royal Assent.

3. Schedule 1, Part 4

The later of:

(a) immediately after the commencement of the provisions covered by table item 2; and

(b) immediately after the commencement of Schedule 1 to the Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Act 2018.

However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur.

(6) Schedule 1, item 2, page 9 (after line 3), after section 1317AAD, insert:

1317AADA Personal work -related grievances

(1) Subsections 1317AA(1) and (2) do not apply to a disclosure of information by an individual (the discloser) to the extent that the information disclosed:

(a) concerns a personal work-related grievance of the discloser; and

(b) does not concern a contravention, or an alleged contravention, of section 1317AC that involves detriment caused to the discloser or a threat made to the discloser.

Note: A disclosure concerning a personal work-related grievance that is made to a legal practitioner may qualify for protection under this Part under subsection 1317AA(3).

(2) For the purposes of subsection (1), the information disclosed concerns a personal work-related grievance of the discloser if:

(a) the information concerns a grievance about any matter in relation to the discloser's employment, or former employment, having (or tending to have) implications for the discloser personally; and

(b) the information:

(i) does not have significant implications for the regulated entity to which it relates, or another regulated entity, that do not relate to the discloser; and

(ii) does not concern conduct, or alleged conduct, referred to in paragraph 1317AA(5)(c), (d), (e) or (f).

Examples of grievances that may be personal work-related grievances under paragraph (a) (but subject to paragraph (b)) are as follows:

(a) an interpersonal conflict between the discloser and another employee;

(b) a decision relating to the engagement, transfer or promotion of the discloser;

(c) a decision relating to the terms and conditions of engagement of the discloser;

(d) a decision to suspend or terminate the engagement of the discloser, or otherwise to discipline the discloser.

(8) Schedule 1, item 9, page 12 (line 17), omit "victimising conduct", substitute "detrimental conduct".

(9) Schedule 1, item 9, page 12 (lines 19 and 20), omit "(within the meaning of section 1317AC)".

(10) Schedule 1, item 9, page 12 (line 24), omit "victimising conduct", substitute "detrimental conduct".

(11) Schedule 1, item 9, page 12 (line 30), omit "victimising conduct", substitute "detrimental conduct".

(12) Schedule 1, item 9, page 13 (line 2), omit "victimising conduct", substitute "detrimental conduct".

(13) Schedule 1, item 9, page 13 (lines 5 and 6), omit "victimising conduct", substitute "detrimental conduct".

(14) Schedule 1, item 9, page 13 (line 8), omit "victimising conduct", substitute "detrimental conduct".

(15) Schedule 1, item 9, page 13 (line 11), omit "victimising conduct", substitute "detrimental conduct".

(16) Schedule 1, item 9, page 13 (line 12), omit "victimising conduct", substitute "detrimental conduct".

(17) Schedule 1, item 9, page 13 (after line 12), after subsection 1317AD(2), insert:

(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

(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.

(18) Schedule 1, item 9, page 13 (after line 19), after section 1317AD, insert:

1317ADA Detriment

In sections 1317AC and 1317AD, detriment includes (without limitation) any of the following:

(a) dismissal of an employee;

(b) injury of an employee in his or her employment;

(c) alteration of an employee's position or duties to his or her disadvantage;

(d) discrimination between an employee and other employees of the same employer;

(e) harassment or intimidation of a person;

(f) harm or injury to a person, including psychological harm;

(g) damage to a person's property;

(h) damage to a person's reputation;

(i) damage to a person's business or financial position;

(j) any other damage to a person.

(19) Schedule 1, item 9, page 13 (line 22), omit "subsections 1317AD(1) and (2)", substitute "subsections 1317AD(1), (2) and (2A)".

(20) Schedule 1, item 9, page 13 (line 26), omit "victimising conduct", substitute "detrimental conduct".

(21) Schedule 1, item 9, page 13 (line 28), omit "victimising conduct", substitute "detrimental conduct".

(22) Schedule 1, item 9, page 13 (line 32), omit "victimising conduct", substitute "detrimental conduct".

(23) Schedule 1, item 9, page 14 (line 2), omit "victimising conduct", substitute "detrimental conduct".

(24) Schedule 1, item 9, page 14 (line 6), omit "victimising conduct", substitute "detrimental conduct".

(25) Schedule 1, item 9, page 14 (lines 9 and 10), omit "victimising conduct", substitute "detrimental conduct".

(26) Schedule 1, item 9, page 14 (line 13), omit "victimising conduct", substitute "detrimental conduct".

(27) Schedule 1, item 9, page 14 (lines 15 and 16), omit "victimising conduct", substitute "detrimental conduct".

(28) Schedule 1, item 9, page 14 (line 18), omit "victimising conduct", substitute "detrimental conduct".

(29) Schedule 1, item 9, page 14 (lines 27 to 37), omit subsection 1317AE(2), substitute:

(2) If the detrimental conduct wholly or partly consists, or consisted, of terminating or purporting to terminate a person's employment (including detrimental conduct that forces or forced the person to resign), the court must, in making an order mentioned in paragraph (1)(a) or (b), consider the period, if any, the person is likely to be without employment as a result of the detrimental conduct. This subsection does not limit any other matter the court may consider.

(30) Schedule 1, item 9, page 15 (lines 1 to 4), omit subsection 1317AE(3), substitute:

(3) In deciding whether to make an order under paragraph (1)(b) in relation to the first person's employer, the court may have regard to the following:

(a) whether the employer took reasonable precautions, and exercised due diligence, to avoid the detrimental conduct;

(b) if the employer has a policy dealing with any or all of the matters referred to in subsection 1317AI(5) (whether or not section 1317AI requires the employer to have such a policy)—the extent to which the employer gave effect to that policy;

(c) any duty that the employer was under to prevent the detrimental conduct, or to take reasonable steps to ensure that the detrimental conduct was not engaged in.

(31) Schedule 1, item 9, page 17 (lines 22 and 23), omit "(within the meaning of section 1317AC)".

(32) Schedule 1, item 9, page 18 (after line 7), after section 1317AJ, insert:

1317AK Review of operation of whistleblower protections

(1) The Minister must cause a review to be undertaken of the operation of:

(a) this Part; and

(b) Part IVD of the Taxation Administration Act 1953.

Note: Part IVD of the Taxation Administration Act 1953 provides for protections for whistleblowers in relation to tax.

(2) The review must be conducted as soon as practicable after the end of 5 years after this section commences.

(3) The Minister must cause a written report about the review to be prepared.

(4) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

(33) Schedule 1, item 12, page 19 (lines 27 to 29), omit subsection 1644(3), substitute:

(3) Subsections 1317AI(1) to (4), as inserted by item 9 of Schedule 1 to the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2018, apply on and after the day 6 months after the day that item commences.

(34) Schedule 1, item 15, page 27 (lines 6 to 20), omit subsection 14ZZY(5).

(35) Schedule 1, item 15, page 27 (line 25), omit "victimising conduct", substitute "detrimental conduct".

(36) Schedule 1, item 15, page 27 (lines 27 and 28), omit "(within the meaning of section 14ZZY)".

(37) Schedule 1, item 15, page 27 (line 32), omit "victimising conduct", substitute "detrimental conduct".

(38) Schedule 1, item 15, page 28 (line 4), omit "victimising conduct", substitute "detrimental conduct".

(39) Schedule 1, item 15, page 28 (line 11), omit "victimising conduct", substitute "detrimental conduct".

(40) Schedule 1, item 15, page 28 (lines 14 and 15), omit "victimising conduct", substitute "detrimental conduct".

(41) Schedule 1, item 15, page 28 (line 17), omit "victimising conduct", substitute "detrimental conduct".

(42) Schedule 1, item 15, page 28 (line 20), omit "victimising conduct", substitute "detrimental conduct".

(43) Schedule 1, item 15, page 28 (line 21), omit "victimising conduct", substitute "detrimental conduct".

(44) Schedule 1, item 15, page 28 (after line 21), after subsection 14ZZZ(2), insert:

(2A) A court may make an order under section 14ZZZA 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

(2B) In proceedings where a person seeks an order under section 14ZZZA 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.

(45) Schedule 1, item 15, page 28 (after line 28), after section 14ZZZ, insert:

14ZZZAA Detriment

In sections 14ZZY and 14ZZZ, detriment includes (without limitation) any of the following:

(a) dismissal of an employee;

(b) injury of an employee in his or her employment;

(c) alteration of an employee's position or duties to his or her disadvantage;

(d) discrimination between an employee and other employees of the same employer;

(e) harassment or intimidation of a person;

(f) harm or injury to a person, including psychological harm;

(g) damage to a person's property;

(h) damage to a person's reputation;

(i) damage to a person's business or financial position;

(j) any other damage to a person.

(46) Schedule 1, item 15, page 28 (line 31), omit "subsections 14ZZZ(1) and (2)", substitute "subsections 14ZZZ(1), (2) and (2A)".

(47) Schedule 1, item 15, page 29 (line 3), omit "victimising conduct", substitute "detrimental conduct".

(48) Schedule 1, item 15, page 29 (line 5), omit "victimising conduct", substitute "detrimental conduct".

(49) Schedule 1, item 15, page 29 (line 9), omit "victimising conduct", substitute "detrimental conduct".

(50) Schedule 1, item 15, page 29 (line 13), omit "victimising conduct", substitute "detrimental conduct".

(51) Schedule 1, item 15, page 29 (line 17), omit "victimising conduct", substitute "detrimental conduct".

(52) Schedule 1, item 15, page 29 (lines 20 and 21), omit "victimising conduct", substitute "detrimental conduct".

(53) Schedule 1, item 15, page 29 (line 24), omit "victimising conduct", substitute "detrimental conduct".

(54) Schedule 1, item 15, page 29 (lines 26 and 27), omit "victimising conduct", substitute "detrimental conduct".

(55) Schedule 1, item 15, page 29 (line 29), omit "victimising conduct", substitute "detrimental conduct".

(56) Schedule 1, item 15, page 30 (lines 1 to 11), omit subsection 14ZZZA(2), substitute:

(2) If the detrimental conduct wholly or partly consists, or consisted, of terminating or purporting to terminate a person's employment (including detrimental conduct that forces or forced the person to resign), the court must, in making an order mentioned in paragraph (1)(a) or (b), consider the period, if any, the person is likely to be without employment as a result of the detrimental conduct. This subsection does not limit any other matter the court may consider.

(57) Schedule 1, item 15, page 30 (lines 12 to 15), omit subsection 14ZZZA(3), substitute:

(3) In deciding whether to make an order under paragraph (1)(b) in relation to the first person's employer, the court may have regard to the following:

(a) whether the employer took reasonable precautions, and exercised due diligence, to avoid the detrimental conduct;

(b) if the employer has a policy dealing with any or all of the matters referred to in subsection 1317AI(5) of the Corporations Act 2001 (whether or not section 1317AI of that Act requires the employer to have such a policy)—the extent to which the employer gave effect to that policy;

(c) any duty that the employer was under to prevent the detrimental conduct, or to take reasonable steps to ensure that the detrimental conduct was not engaged in.

(58) Schedule 1, page 35 (after line 28), at the end of the Schedule, add:

Part 4—Contingent amendments

Corporations Act 2001

33 In the appropriate position in subsection 1317E ( 3 )

Insert:

34 At the end of Part 10.32

Add:

1644A Application of amendments relating to penalties

The amendments made by Part 4 of Schedule 1 to the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2018 apply in relation to the commission of an offence if the conduct constituting the commission of the offence occurs wholly on or after the commencement of that Part.

35 Schedule 3 (table items dealing with subsections 1317AC ( 1 ) , ( 2 ) and ( 3 ) and subsection 1317AE ( 1 ) )

Repeal the items, substitute:

Taxation Administration Act 1953

36 Subsection 14ZZW ( 1 ) (penalty)

Omit "30 penalty units", substitute "60 penalty units".

37 Subsections 14ZZY ( 1 ) and ( 2 ) (penalties)

Omit "120 penalty units", substitute "240 penalty units".

38 Application of amendments

The amendments of the Taxation Administration Act 1953 made by this Part apply in relation to the commission of an offence if the conduct constituting the commission of the offence occurs wholly on or after the commencement of this Part.

I will speak about the amendments briefly.

These amendments will further strengthen the corporate and tax whistleblowing protections provided in the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017. The amendments will address most of the recommendations of the Senate Economics Legislation Committee report into the bill. The cohort of staff who are eligible to receive a whistleblower disclosure will be narrowed to senior managers to reduce the compliance burden on companies.

The emergency disclosure provision, which allows for disclosures to a journalist or a member of parliament, will be revised to align more closely with the Public Interest Disclosure Act 2013. The definition of 'journalist' will be amended to extend protections to disclosures made to journalists employed by the Australian Broadcasting Corporation or the Special Broadcasting Service.

To ensure the regime operates as intended, disclosures solely about personal employment matters will be excluded from protection under the corporate regime. The amendments will further improve access to compensation for whistleblowers who suffer victimisation. For example, the amendments require a court to consider the period a person is likely to be without employment in circumstances where the detrimental conduct involved termination of employment.

A statutory review of the new regime will be required five years after the commencement date of the bill. For the bill to effectively operate, the commencement date of the bill will be revised to the first day of the second quarter following royal assent. This will provide a lead-in period for businesses to adjust to the new laws.

Lastly, the amendments will give effect to the increased financial penalties in the Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Bill 2018 as it relates to offences under the corporate and tax whistleblower regime. The bill and the government amendments to the bill will not affect any existing rights and protections in respect of a constituent raising an issue with a member of parliament that may attract protection under parliamentary privilege. I commend these amendments to the Senate.