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The Protection Of The Whistleblower Act, 2010 (Bill No. 58)

A BILL

entitled

AN ACT to make provision for procedures in terms of which employees in both the private sector and the public administration may disclose information regarding improper practices by their employers or other employees in the employ of their employers and to protect employees who make said disclosures from detrimental action.

BE IT ENACTED by the President, by and with the advice and consent of the House of Representatives, in this present Parliament assembled, and by the authority of the same, as follows:-
PART I
PRELIMINARY AND GENERAL

1. (1) The short title of this Act is the Protection of the

Whistleblower Act, 2010.
(2) This Act shall come into force on such date as the Minister responsible for justice may by notice in the Gazette appoint, and different dates may be so appointed for different purposes and for different provisions of this Act.

2. (1) In this Act, unless the context otherwise requires: "authority" means the entities prescribed to receive external

disclosures, as listed in the Schedule;
"contract of service" means an agreement including service as a member of a disciplined force whether oral or in writing, in any form, whereby a person binds himself to render service to or to do work for an employer, in return for remuneration;

Short title and commencement.

Interpretation.

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Cap. 326.

"corrupt practices" has the same meaning as is assigned to it by article 6 of the Permanent Commission against Corruption Act;
"detrimental action" includes:
(a) action causing injury, loss or damage; and, or
(b) victimisation, intimidation or harassment; and, or
(c) occupational detriment; and, or

Cap. 9. (d) prosecution under article 101 of the Criminal Code relating to calumnious accusations; and, or

(e) civil or criminal proceedings or disciplinary proceedings;
"disciplined force" means:
(a) naval, military or air force of the Government of
Malta;
(b) the Malta Police Force; (c) the Malta prison service;
"employee" means:
(a) any person who has entered into or works under a contract of service with an employer and includes a contractor or subcontractor who performs work or supplies a service or undertakes to perform any work or to supply services; or
(b) any person who has undertaken personally to execute any work or service for, and under the immediate direction and control of another person, including an outworker, but excluding work or service performed in a professional capacity when such work or service is not regulated by a specific contract of service; or
(c) any person in employment in the public administration, including as a member of a disciplined force;
(d) any former employee; or
(e) any person who is or was seconded to an employer;
or
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(f) any volunteer in terms of article 2(1) of the
Voluntary Organisations Act;
"employer" means any person, organisation or statutory body whether forming part of the public administration or the private sector who:

Cap. 492.

(a) enters into a contract of service with an employee;
or
(b) who employs or engages any other person,
and shall include a voluntary organisation in relation to volunteers who render services to such voluntary organisation on a voluntary basis or otherwise;
"external disclosure" is a disclosure made in accordance with
Section 3 of Part III;
"guidelines" means the set of rules issued by an authority, from time to time, for the further implementation of the provisions of this Act, and any regulations made hereunder;
"improper practice" means:
(a) where a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject; or
(b) where the health or safety of any individual has been, is being or is likely to be endangered; or
(c) where the environment has been, is being or is likely to be damaged; or
(d) a corrupt practice; or
(e) a criminal offence that has been committed, is being committed or is likely to be committed; or
(f) a miscarriage of justice that has occurred, is occurring or is likely to occur; or
(g) information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed;
"internal disclosure" is a disclosure made in accordance with
Section 2 of Part III;
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"member", in relation to a disciplined force, includes any person who, under the law regulating the discipline of that force, is subject to that discipline;
"Minister" means the Minister responsible for justice; "occupational detriment", in relation to the working
environment of an employee, includes:
(a) being subjected to any disciplinary action including for breach of ethics or confidentiality;
(b) being dismissed, suspended or demoted except where administratively or commercially justifiable for organisational reasons;
(c) being transferred against his will or being refused transfer or promotion except where administratively or commercially justifiable for organisational reasons;
(d) being subjected to a term or condition of employment or retirement which is altered or kept altered to his disadvantage;
(e) being refused a reference or being provided with an adverse reference from his employer except where justifiable on the basis of performance;
(f) being denied appointment to any employment, profession or office; or
(g) being otherwise adversely affected in respect of his employment, profession or office, including employment opportunities and work security;
"outworker" means a person to whom articles, materials or services of any nature are given out by an employer for the performance of any type of work or service where such work or service is to be carried out either in the home of the outworker or in some other premises not being under the control and management of that other person;
"organisation" means any legal entity, whether registered as a legal person or not;
"person" means a natural person;
"protected disclosure" means an internal disclosure or an
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external disclosure of information, made in writing or in any format which may be prescribed;
"public administration" has the meaning as is assigned to it by article 2(1) of the Public Administration Act;
"statutory body" means any corporation or other body corporate established by law;
"voluntary organisation" has the same meaning as is assigned to it by article 2(1) of the Voluntary Organisations Act irrespective of whether such organisation is enrolled in terms of the said Act;
"whistleblowing reporting officer" means such officer within an employer charged with carrying out the functions designated by article 12;
"whistleblowing unit" means such officer, office or section within an authority to carry out the functions designated by article 17, and, with respect to the public administrtation, such section, body or unit as may be established under the Public Administration Act.
(2) Where this Act refers to a matter which may be prescribed, unless this Act expressly designates the person authorised and the manner thereof, such matter may be prescribed by the Minister through regulations or by the authority through guidelines or by any one or all of them as may be determined, and in the case of any conflict, a regulation by the Minister shall prevail over a guideline.
(3) This Act shall not apply to members of a disciplined force or to members of the Security Service until the Minister makes regulations regulating the manner in which the provisions of this Act will apply in their regard, and in so doing, the Minister may dis-apply or modify the provisions of this Act as necessary for the purposes of national security.
PART II
PROHIBITION OF DETRIMENTAL ACTION

3. Subject to the exceptions referred to in this Act, despite any prohibition of, or restriction on, the disclosure of information under any enactment, rule of law, contract, oath or practice, no person may be subjected to detrimental action on account of having made a protected disclosure.

4. Notwithstanding the provisions of the Criminal Code or of any other law, no person who makes a protected disclosure shall be liable to any civil or criminal proceedings or to a disciplinary

Cap. 497.

Cap. 492.

Cap. 497.

Prohibition of detrimental action.

Protected disclosure. Cap. 9.

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No immunity where person who makes disclosure is himself a perpetrator or accomplice.

Prohibition of disclosure of information which identifies whistleblower.

proceeding for having made such a disclosure.

5. (1) Nothing in this Part shall prevent the institution of criminal proceedings against the person making the disclosure where the authority has determined that such person was the perpetrator or an accomplice in the improper practice which constitutes a crime or contravention under any applicable law prior to its disclosure.

(2) Nothing in this Part should be interpreted as providing immunity to any person making a disclosure about an improper practice from any disciplinary or civil proceedings or liability arising from his own conduct.

6. (1) Every whistleblowing reporting officer or whistleblowing unit to whom a protected disclosure is made or referred must not disclose information that identifies or may lead to the identification of the person making the disclosure unless:

(a) the person making the disclosure consents in writing to the disclosure of that information; or
(b) the said whistleblowing reporting officer or whistleblowing unit reasonably believes that disclosure of the identity of the person making the disclosure -
(i) is essential to the effective investigation of the allegations in the protected disclosure; or
(ii) is essential to prevent serious risk to public health or public safety or the environment; or
(iii) is essential having regard to the principles of natural justice; or
(c) the disclosure of the person’s identity is necessary for the prosecution of the person or organisation responsible for an improper practice which constitutes a crime or contravention under any law.
(2) The whistleblowing unit shall not communicate the disclosure to other departments within the authority of which it forms part until it has duly investigated the disclosure and established that it is necessary or appropriate for further investigation to be carried out by such other departments.
(3) Guidelines shall be issued by each authority setting out - (a) the duties of communication between the
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whistleblowing unit and the person making the disclosure and the restrictions thereon; and
(b) the rules for disclosure to other departments of the authority or to other authorities or entities of the State.

7. (1) A person who believes that detrimental action has been taken or may be taken against him in reprisal for a protected disclosure may file an application to the First Hall, Civil Court for -

(a) an order requiring the person who has taken the detrimental action to remedy that action; or
(b) an injunction.
(2) The Court, pending the final determination of an application under this article, may -
(a) make an interim order; or
(b) grant an interim injunction.
(3) If, in determining the application under sub-article (2), the Court is satisfied that a person has taken or intends to take detrimental action against a person in reprisal for a protected disclosure, the Court may:
(a) order the person who took the detrimental action to remedy that action and determine the amount of damages, including, but not limited to, moral damages as the Court may determine, due to the person who suffered the detrimental action; or
(b) grant an injunction in any terms the Court considers appropriate.
(4) Notwithstanding the provisions of the Code of Organisation and Civil Procedure, an injunction granted in terms of sub-article (3) shall be for an indefinite period until an application for its revocation is made, and the injunction need not be followed by an action. The provisions of articles 873 and 875 of the Code of Organisation and Civil Procedure shall apply to warrants issued under sub-article (3).
(5) The provisions of articles 829 to 838B of the Code of Organisation and Civil Procedure shall not apply to injunctions granted in terms of sub-article (3).

Application to the Civil Court.

Cap. 12.

Cap. 12.

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Cap. 12.

Right to compensation following detrimental action.

Protected disclosures.

(6) Notwithstanding the provisions of Schedule A of the Code of Organisation and Civil Procedure, no registry fees shall be charged on an application filed in the First Hall of the Civil Court by the person referred to in sub-article (1).

8. Any person who may have suffered detrimental action as a result of making a protected disclosure shall, without prejudice to any other right under any other law, have a right to compensation for any damage caused.

PART III DISCLOSURES SECTION 1
PROTECTED DISCLOSURES

9. (1) A disclosure is a protected disclosure if - (a) it is made in good faith; and

(b) the person making the disclosure reasonably believes that:
(i) the information disclosed, and any allegation contained in it, are substantially true;
(ii) the information disclosed tends to show an improper practice being committed by his employer, another employee of his employer or by persons acting in the employer’s name and interests; and
gain.
(c) the disclosure is not made for purposes of personal

Cap. 9.

Information protected by legal professional privilege. Cap. 377.

(2) The protections conferred by this article do not apply to an employee who knowingly discloses information which he knows, or ought to reasonably know, is false.
(3) It shall be an offence punishable in accordance with article
101 of the Criminal Code to knowingly provide false information in terms of this Act.

10. Saving the provisions of article 6A(c) of the Professional Secrecy Act, nothing in this Act authorises a person to disclose information protected by legal professional privilege and a disclosure of such information is not a protected disclosure for the purposes of this Act.

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11. (1) Disclosures made anonymously shall not be considered as protected disclosures in terms of this Act.

(2) A whistleblower reporting officer or whistleblowing unit may receive and process an anonymous disclosure. The obligations imposed on a whistleblower reporting officer or whistleblowing unit by article 6 of this Act arise in relation to anonymous disclosures.
SECTION 2
INTERNAL DISCLOSURES

12. (1) Every employer must have in operation internal procedures for receiving and dealing with information about improper practices committed within or by that organisation; such internal procedures must at least identify the person or persons within the organisation, in this Act referred to as the "whistleblowing reporting officer", to whom a protected disclosure may be made.

(2) Information about the existence of the internal procedures, and adequate information on how to use the procedures must be published widely within the organisation and must be republished at regular intervals.
(3) An internal disclosure is a protected disclosure made in accordance with the provisions of this Act if it is made by an employee to an employer substantially in the manner established by internal procedures established by the employer for receiving or dealing with such disclosures.

13. (1) The whistleblowing reporting officer must, within a reasonable time after receiving an internal disclosure, notify the person who made the disclosure of the status of the improper practice disclosed or such matters as may be prescribed.

(2) For the purposes of article 16, where it is apparent from external action that action has been taken to rectify the improper practice, it will not be necessary for the whistleblowing reporting officer to notify the person who made the disclosure.

14. An internal disclosure may be made to the head or deputy head of the organisation if:

(a) the organisation has no internal procedures established and published for receiving and dealing with information about an improper practice; or
(b) the person making the disclosure believes on

Disclosures made anonymously.

Internal procedures for receiving and dealing with protected information.

Notification to person who made the disclosure.

Internal disclosure made to the head or deputy head of the organisation.

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reasonable grounds that the whistleblowing reporting officer is or may be involved in the alleged improper practice; or
(c) the employee making the disclosure believes on reasonable grounds that the whistleblowing reporting officer is, by reason of any relationship or association with a person who is or may be involved in the improper practice alleged in the disclosure, not a person to whom it is appropriate to make the disclosure.
SECTION 3

Protection of external disclosure.

External disclosure made to the whistleblowing unit of the authority.

EXTERNAL DISCLOSURES

15. Except as provided in this Part, an external disclosure shall only be protected if an internal disclosure in accordance with Section

2 of this Part has already been made or has been attempted to be made.

16. (1) An external disclosure may be made to the whistleblowing unit of the authority as provided in the Schedule if the employee making the disclosure believes on reasonable grounds -

(a) that the head of the organisation is or may be involved in the improper practice alleged in the disclosure; or
(b) that immediate reference to the authority is justified by the urgency of the matter to which the disclosure relates, or some other exceptional circumstances; or
(c) at the time he makes the external disclosure, that he will be subjected to an occupational detriment by his employer if he makes an internal disclosure; or
(d) that it is likely that evidence relating to the improper practice will be concealed or destroyed if he makes an internal disclosure; or
(e) that although an internal disclosure has previously been made, the person who made such disclosure has not been informed on the status of the matter disclosed or it is reasonably evident to the person who made such a disclosure that there has been no action or recommended action on the matter to which the disclosure relates within a reasonable time from the making of the disclosure.
(2) In determining for the purposes of sub-article (1) whether it is reasonable for the employee to make the disclosure to the
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authority, regard shall be had, in particular, to:
(a) the seriousness of the alleged improper practice,
(b) whether the improper practice is continuing or is likely to occur in the future,
(c) whether the disclosure is made in breach of a duty of confidentiality owed by the employer to any other person,
(d) in a case falling within sub-article (1)(e), any action which the employer has taken or might reasonably be expected to have taken as a result of the previous disclosure, and
(e) whether in making the disclosure to the authority, the employee complied with any procedure whose use by him was authorised by the employer in accordance with article
12(1).
(3) If a person makes a disclosure to an authority in accordance with this Part, the authority must within forty-five (45) days after receiving the disclosure consider and reach a conclusion as to whether it is appropriate for the disclosure to be made externally.
(4) If the authority concludes that a disclosure should not have been made externally, then it must within a reasonable time notify in writing the person who made the disclosure and the whistleblowing reporting officer within the employer’s organisation that an internal disclosure in accordance with Section 2 of this Part must be made and that it will not be dealing further with the disclosure.
(5) If the authority concludes that a disclosure has been properly made, then it must within a reasonable time notify in writing the person who made the disclosure of the status of the improper practice disclosed or such matters as may be prescribed.

17. (1) All authorities referred to in the Schedule shall set up a whistleblowing unit.

(2) The whistleblowing unit shall be charged with receiving and processing any external disclosures relating to the activities of persons operating within the sector regulated by the relevant authority as set out in the Schedule so as to determine whether the disclosures should be referred for further investigation and the conditions under which such referral should take place.

Setting up of whistleblowing units.

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Referral of information to another authority.

Use or threats of violence.

Regulations and guidelines.

18. (1) Where the authority to whom a protected disclosure is made considers that the information disclosed can be better investigated by another authority, the authority to whom the disclosure is made may refer that information to such other authority and inform in writing the person making the disclosure accordingly.

(2) A protected disclosure shall not, by reason of its referral to another authority, cease to be a protected disclosure.
PART IV OFFENCES AND PENALTIES

19. Any person who, for the purpose of compelling any other

person to abstain from doing or to do any act which such other person has a legal right to do or to abstain from doing under the provisions of this Act, wrongfully and without legal authority -
(a) uses or threatens to use violence against such person, or the wife, husband or child of such person, or a member of his household, or causes or threatens to cause damage to his property;
(b) persistently follows such other person from place to place;
(c) watches or besets the house or other place where such other person resides or the approaches to such house or place;
(d) deprives such person, or in any manner hinders him in the use of, any tools, clothing or other property owned or used by such other person,
shall be guilty of an offence and be liable on conviction to imprisonment for a period not exceeding three months or to a fine (multa) not exceeding one thousand and two hundred euro (€1,200) or to both such imprisonment and fine, without prejudice to any heavier punishment to which the offence may be liable under any other enactment.
PART V REGULATIONS AND GUIDELINES

20. (1) The Minister may from time to time make

regulations for the better implementation of this Act.
(2) An authority may, in furtherance of any of its functions
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under this Act, from time to time issue and publish guidelines on all matters in respect of which the Minister may make regulations including guidelines setting out the procedures which are available in terms of law to those who wish to disclose an improper practice.
(3) Guidelines issued by an authority shall be binding on all organisations whose activities are regulated by such authority.
(4) Except for amendments to the guidelines which are purely administrative in nature, and are expressly declared to be so by the authority, which come into force immediately upon the posting thereof on the official website of the said authority, any new guidelines or amendments to guidelines shall come into force on the lapse of fifteen days after they are posted on the official website or on such later date as may be stated therein.
PART VI
MISCELLANEOUS

21. Any provision in a contract of service or other agreement between an employer and an employee is void in so far as it -

(a) purports to exclude any provision of this Act, including an agreement to refrain from instituting or continuing any proceedings under this Act or any proceedings for breach of contract; or
(b) purports to preclude the employee or has the effect of discouraging the employee from making a protected disclosure in terms of this Act.

22. This Act shall apply only to disclosures of information relating to conduct which occurs after the coming into force of this Act or, if commencing before the coming into force of this Act, continues after its coming into force.

Conflict between contract of service and provisions of this Act.

Applicability of

Act.

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SCHEDULE
Authorities Prescribed to receive External Disclosures
Part 1 - Private Sector

Part 2 - Public Administration
The Corporate Governance Committee within the Cabinet Office

Objects and Reasons

The objects of this Bill are to provide for procedures in terms of which employees in both the private sector and the public administration may disclose information regarding improper practices by their employers or other employees in the employ of their employers and to protect employees who make said disclosures from detrimental action.