AMCHAM T&T Statement of Proposals & Comments on the Whistleblower Protection Act 2015

AMCHAM T&T was asked to provide comments on the Whistleblower Protection Bill 2015 for the Joint Select Committee for their consideration.  The comments which are outlined below provide a number of section specific suggestions that we believe would further aid in protecting whistleblowers as well s general comments as it relates to the implementation and enforcement of the law.

 

 

Section Concern recommendation/comment
Definition of “detrimental action” Should extend beyond the person making the disclosure to include immediate family members. Definition of detrimental action should extend beyond the person making the disclosure to include immediate family members (who may also be the subject of detrimental action as a result of the disclosure).
Definition of “improper conduct” The non-qualification of the paragraph (e) This should be tied to offences under the Environmental Management Act.  The current definition could be creating liability about non civil or criminal misfeasance
Definition of “improper conduct” The non-qualification of the paragraph (f) This should be tied to offences under the Integrity in Public Life Act.  See above.
Definition of “improper conduct” The inclusion of the word “unfair” All discrimination is unfair.  The need to prove “unfairness” is unnecessary.
Definition of “improper conduct” The definition of “protected disclosure” There is no section 11(4) in the Act.  This section needs to be amended to include the correct section reference.  There is also no section 14(6).  This needs to be corrected.
Definition of “improper conduct”   This should include false claims made against the State for the benefit of a person or organization. For example, where there are claims of works performed, inflated costs for goods and services, claims for state support or benefits where not qualified for same.
Definition of “improper conduct” definition in the local bill has too broad a scope In the Maltese legislation, the definition of “improper practice”  (which is that Act’s equivalent of “improper conduct” in the local bill and in the Jamaican Act, though it is not identical to these) is qualified by a “de minimis”  rule of interpretation which essentially provides that very minor or trivial matters should not fall under the provisions of the legislation. A similar provision would be useful in the local legislation to prevent abuse of the legislation and bring public interest disclosures the focus of the legislation.
The definition of “public body”   Add the words “as amended or replaced from time to time” after the reference to Public Procurement and Disposal of Public Property Act, 2015.
Section (4) – What is to be done with an oral disclosure It is unclear what is to be done after the disclosure is reduced into writing Perhaps the intention is to have the disclosure sent somewhere? This needs to be explicitly included in the section.
Section 8 The expression “legal professional privilege” should be defined This can be defined by reference to the Legal Professions Act
Section 9 Lack of clarity “discard” should include identifying procedures for destroying all documents related to the disclosure, given the potential liability if these false claims are not destroyed and later disseminated.
Section 12 (1) Timeframe ambiguous. “reasonable time” is ambiguous and action should be taken within a specified period, even if it is to advise that no progress has been made.
Section 12 (2) Judgment of the Whistleblowing reporting officer Is the reporting officer likely to be able to determine whether conduct “constitutes a criminal offence”? The determination instead, should be whether the conduct “may constitute a criminal offence. Once that determination is made, the referral to a designated authority should be mandatory, with the word “shall” being substituted for the word “may”.
Section 12(4) The prohibition is against disclosure of the identity of the whistleblower. This should be extended to the content of the disclosure as well.  We suggest adding the words “or the disclosure itself” between the words “whistleblower” and “except” in line 4
Section 14 (1)( c) (iii) Lack of clarity. What does “senior officer” mean? Does it refer to Directors and other Chief Officers or does it also extend to the whistleblower’s senior (at whatever level he/she may be at).
Section 14 (1) (c ) (iv) Lack of clarity. This sub-section is vague, and it may be useful to equate urgency with irreparable harm for injunctive relief and further clarify the meaning of “exceptional circumstances”.
Section 14(3) Why is this necessary? If the disclosure is made externally why should it be bounced around? The productiveness of this proposed bouncing around of responsibility between internal and external recipients of disclosures should be re-examined.

It should also be a requirement that the reasons for determining whether or not the external disclosure should be made, should be set out in writing.

Section 14 (3) and (4) Timeline too lengthy The successive periods of 45 days should be reconsidered.
Section 14 (4) Documents should not be kept. The Section should provide that all documents submitted shall be returned and all copies destroyed.
Section 14 (5) Timeframe ambiguous.

 

“Reasonable time” is ambiguous and action should be taken within a specified period, even if it is to advise that no progress has been made.
Section 15(2) Documents should not be kept. Documents or data relating to a disclosure transferred to another Unit should not be kept, and an explicit provision should represent this position.
Section 17(2) The word “Whistleblower” is not a defined term. The term “whistleblower” that is, with a lower case “w” is.  Accordingly, the expression “Whistleblower protection” has no proper meaning within the section Change “Whistleblower protection” to “The protection of a whistleblower”
Section 17(2)(c) The word “respected” in the section is too informal and nebulous Change “respected” to “adhered to”
Section 18(2) The expression “arise from” is vague The language could be “proceedings are initiated pursuant to the disclosure by the whistleblower”.
Section 18(5) Protection of the whistleblower where there is culpability in improper conduct Clarify why or instances where protection continues even in such circumstances.  Under section 7(1)(b) would it not mean that the disclosure itself was not protectable because it was not made in good faith? Why should the whistleblower not be dismissed if he perpetrated the wrongdoing? If this applies, is he not blowing the whistle to give personal advantage and maintain employment?
Section 19(2) It is unclear whether the “improper conduct which constitutes a criminal offence or the breach of law” qualifies the misconduct to be investigated by the police only or by the appropriate department as well. I would add the words “into the improper conduct referred to in the disclosure” between the words “carried out” and “by” and omit the words “which constitutes a criminal offence or the breach of the law” which are within the remit of the police anyway.
Section 19(4) The ambit of the guidelines could be widened to include the mechanics for ensuring the confidentiality of the identity of the whistleblower Add the a sub-section (c): “the rules for ensuring the confidentiality of the whistleblower and the disclosure”
Section 19 (4) Relation to regulation making powers of the Minister. This should be subject to the regulation making powers of the Minister in Section 26, to avoid inconsistent guidelines between the designated authorities and the regulations.
Section 20(3)(a) Who is “the person who suffered the detrimental action” Would that not be “the whistleblower”?  Perhaps this should be amended accordingly to substitute the expression “the whistleblower” for “the person who suffered the detrimental action”
Section 20(4) Is the reference to “Any person” really a reference to “a whistleblower”? Replace “Any person” with “A whistleblower”
Section 21 (2)(a-b) The fines are too low and therefore not prohibitive Even the $50,000. set out in part (b) may be a small price to pay for a corrupt action. This fine should be in line with Section 22 (2).
Section 22 The grammar of this section seems doubtful. What is it that “shall not be regarded as being inconsistent with the obligation for secrecy and confidentiality”?  It could only be the statement given or document, information or thing provided.  If that is correct, then the order of the words needs to be amended. Substitute the words “as having been given or provided in breach of any obligation for secrecy or confidentiality” for the words “as being inconsistent with the obligation for secrecy and confidentiality”
Section 23 Fine is too low. The fine here should also be similar to Section 22(2).