AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz
253 CLR 58, the High Court confirmed that the prosecution is not required, and should not be permitted, to proffer even a sentencing range to a sentencing judge. Charge bargaining, on the other hand, is common. 6.4 Protections Afforded to Whistle- Blowers To strengthen the protection afforded to whistle- blowers in Australia, new private sector whistle- blower laws came into effect in July 2019. Protection Under the Corporations Act The regime, contained in Part 9.4AAA of the Corporations Act, significantly expanded and strengthened private sector whistle-blower pro - tections, increased applicable penalties and introduced a requirement for public companies and large proprietary companies to have a whis - tle-blower policy addressing certain matters. Importantly, protected disclosures are no longer limited to potential contraventions of the cor - porations legislation, but now extend to dis - closures where the whistle-blower has reason - able grounds to suspect that the information concerns misconduct, or an improper state of affairs or circumstances, in relation to the rel - evant company or a related body corporate. This specifically includes conduct by the entity, or one of its employees or officers, that constitutes an offence against a law of the Commonwealth punishable by imprisonment for a period of 12 months or more, thus including the Common - wealth domestic and foreign bribery offences. Where certain criteria are met, a whistle-blower will receive protections in relation to the confi - dentiality of their identity and in relation to vic - timisation. The penalties for breach of these pro - tections have been significantly increased. The maximum civil penalty for companies, for exam -
ple, is now the greater of AUD16.5 million, three times the benefit derived from the contravention, or 10% of annual turnover (up to a maximum of AUD825 million). It is also now easier for victim - ised whistle-blowers to claim compensation and other remedies. Whistle-blowers are also protected against cer - tain legal actions related to making a disclosure. This includes criminal prosecution, civil litigation (eg, breach of employment contract) or adminis - trative action (eg, disciplinary action). Immunity is not given for any misconduct that the whistle- blower was involved in that is revealed in the disclosure. Protection Under the Public Interest Disclosure Act Public officials are protected under the Pub - lic Interest Disclosure Act 2013 (Cth) (the “PID Act”). The PID Act seeks to encourage public officials to report suspected wrongdoing in the Australian public sector, while protecting those who make public interest disclosures from any reprisals. Reforms to the PID Act are current - ly being considered to ensure the framework remains fit for purpose and accessible for public officials. Equivalent legislation covering public servants applies in each state and territory. Protection Under the Fair Work (Registered Organisations) Act Specific protections against reprisals for union whistle-blowers were introduced by the Fair Work (Registered Organisations) Amendment Act 2016 (Cth), which contained various meas - ures intended to fight union corruption.
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