Whistleblowers Protection Bill, 2023
No. … of 2023 Saint Christopher and Nevis
Whistleblowers Protection Bill, 2023
Arrangement of Sections.
Section
1. Short Title.
2. Interpretation.
3. Protected Disclosures.
4. Disclosures to authorised persons.
5. Application.
6. Minister to consult.
7. Regulations.
SAINT CHRISTOPHER AND NEVIS
No. … of 2023
A BILL to deter and combat corruption and other improper conduct by encouraging and facilitating bona fide disclosures of such conduct and protecting the persons who make such disclosures.
BE IT ENACTED by the King’s Most Excellent Majesty, by and with the advice and consent of the National Assembly of Saint Christopher and Nevis and by the authority of the same as follows:
PART I
PRELIMINARY
1. Short title.
(1) This Act may be cited as the Whistleblowers Protection Act, 2023.
(2) This Act shall come into force on a day to be fixed by the Minister by Order published in the Gazette.
2. Interpretation.
In this Act, unless the context otherwise requires—
“associated person” means a person who—
(a) provides or attempts to provide supporting information in respect of a protected disclosure or otherwise assists or attempts to assist a whistleblower; or
(b) is a member of the family of a whistleblower;
“Disclosure Receiving Authority” means a person or entity listed in section 4; “corrupt conduct” has the meaning assigned to it by section 2(1) of the Anti-Corruption Act, 2023; “improper conduct” includes—
(a) commission of a criminal offence;
(b) conduct that is likely to threaten the health or safety of a person;
(c) conduct that is likely to threaten or damage the environment;
(d) conduct that is likely to result in a miscarriage of justice;
(e) conduct that represents a significant threat or harm to the public interest or national security;
(f) conduct that shows gross mismanagement, negligence, impropriety or misconduct in the carrying out of any activity that involves the use of public funds;
(g) unauthorized use of public funds;
(h) serious maladministration;
(i) act of reprisal against, or victimization of, a whistleblower, an associated person or a person mistakenly perceived or identified as a whistleblower or an associated person;
(j) wilful concealment of any act described in paragraphs (a) to (g); or
(k) wilful concealment or destruction of any information tending to show that any act described in paragraphs(a) to (g) has been, is being or is likely to be committed;
“maladministration” has the meaning assigned to it by section 2(1) of the Ombudsman Act, Cap. 3.22;
“Minister” means the Minister responsible for Justice and Legal Affairs;
“privileged information” means—
(a) communications between an attorney-at-law and his or her client or any person representing his or her client, made in connection with the giving of legal advice to the client;
(b) communications between an attorney-at-law and his or her client or any person representing his or her client, or between such an attorney-at-law or his or her client or any such representative and any other person, made in connection with or in contemplation of legal proceedings and for the purposes of such proceedings; and
(c) materials enclosed with or referred to in such communications and made in connection with the giving of legal advice or in connection with or in contemplation of legal proceedings and for the purposes of such proceedings,
when the communications or materials are in the possession of a person who is entitled to such possession and are not held with the intention of furthering a criminal purpose;
“protected disclosure” means a disclosure made in good faith relating to corrupt conduct or improper conduct.
“public officer” has the meaning assigned to it by section 2(1) of the Anti-Corruption Act, 2023;
“sanction” includes being—
(a) subjected to any disciplinary action;
(b) dismissed, suspended, demoted, harassed or intimidated;
(c) transferred to a different position against the will of the person;
(d) refused transfer or promotion;
(e) subjected to a term or condition of employment or retirement which is altered to the disadvantage of the person;
(f) refused a reference or being provided with an adverse reference;
(g) unfairly denied appointment to any employment or office;
(h) threatened with any of the actions referred to in paragraphs (a) to (g); or
(i) adversely affected in respect of the employee’s employment, profession or office in any other way.
“whistleblower” means any public officer who is personally aware of corrupt conduct or improper conduct and who intends or attempts to make, makes or has made, a disclosure of such conduct to a Disclosure Receiving Authority.
PART II
PROTECTED DISCLOSURES
3. Protected disclosures.
(1) A whistleblower may make a protected disclosure to any of the following Disclosure Receiving Authorities—
(a) Integrity Commission;
(b) Special Prosecutor;
(c) Director of Public Prosecutions;
(d) Ombudsman;
(e) Accountant General;
(f) Director of Audit;
(g) Financial Intelligence Unit;
(h) Comptroller of Customs;
(i) Comptroller of Inland Revenue;
(j) Chief Medical Officer; or
(k) any other person that the Minister may by Order prescribe.
(2) Where a whistleblower makes a protected disclosure, the whistleblower shall ensure, as far as practicable, that the matter to which the disclosure relates falls within the area of responsibility of the authorized person.
(3) Notwithstanding subsection (2), a whistleblower shall not be denied the protection afforded by Part III merely on the basis that he or she made a protected disclosure to a Disclosure Receiving Authority of a matter that does not fall within the area of responsibility of the Disclosure Receiving Authority.
4. Special procedure for matters relating to national security etc.
Notwithstanding section 3, a whistleblower who wishes to disclose a matter that would prejudice the national security, defence, international relations or environment of the Federation of Saint Christopher and Nevis shall make the disclosure to the Prime Minister.
5. Legal professional privilege.
For the avoidance of doubt, nothing in this Act authorizes the disclosure of information protected by legal professional privilege, including privileged information.
6. Content and form of disclosure.
(1) A disclosure may be made orally or in writing and shall contain, as far as practicable, the following information:
(a) the full name and address of the whistleblower;
(b) details of the corrupt conduct or improper conduct in respect of which the disclosure is made;
(c) the name of the person alleged to have committed, to be committing or to be about to commit the corrupt conduct or improper conduct;
(d) the time and place where the corrupt conduct or improper conduct is alleged to have taken place, to be taking place or to be about to take place;
(e) the full name, address and description of a person, if any, who witnessed the commission of the corrupt conduct or improper conduct; and
(f) whether the whistleblower made a disclosure of the same or of some other corrupt conduct or improper conduct on a previous occasion and, if so, about whom and to whom the disclosure was made.
(2) Where a disclosure is made orally, the person who receives the disclosure shall, within 24 hours of receiving the disclosure, cause the disclosure to be reduced into writing containing the particulars specified in subsection (1).
(3) A disclosure shall be made substantially in accordance with any applicable disclosure procedure.
(4) A whistleblower shall not be denied the protection afforded by Part III merely on the basis of a defect in the form or content of a disclosure.
7. Anonymous disclosures.
(1) Notwithstanding any other provision of this Act, a disclosure may be made anonymously.
(2) A person who receives an anonymous disclosure shall not refuse to act upon the disclosure merely on the basis that it was made anonymously.
PART III
WHISTLEBLOWER PROTECTIONS
8. Whistleblower protections.
(1) A whistleblower who makes a protected disclosure shall not be—
(a) liable in any in any civil, criminal or disciplinary proceedings; or
(b) subject to any sanction
relating to his or her employment or contract for services, if the information was disclosed in good faith and in the reasonable belief that it was true and in the best interest of the public.
(2) No whistleblower shall be—
(a) liable in any in any civil, criminal or disciplinary proceedings; or
(b) subject to any sanction
relating to his or her employment or contract for services on account of his or her intending or attempting to make, making or having made, a protected disclosure.
(3) Subsections (1) and (2) apply notwithstanding any duty of secrecy or confidentiality or other prohibition or restriction on the disclosure of information under any enactment, rule of law, contract, oath or practice.
(4) Any provision of a contract of employment, or other agreement relating to the terms of employment of a whistleblower, shall be void insofar as it purports to preclude a whistleblower from making a protected disclosure.
(5) The protection afforded to a whistleblower by this section shall not be diminished or denied on the basis that—
(a) the whistleblower was mistaken about the significance of the disclosure;
(b) any perceived threat to the public interest on which the disclosure was based has not materialised; or
(c) the whistleblower has not fully complied with any applicable disclosure procedures, guidelines or regulations made under this Act.
9. Presumption of sanction resulting from protected disclosure.
Where a whistleblower suffers sanction at or around the same time that he or she makes a protected disclosure, the sanction shall be presumed to be a consequence of the protected disclosure unless the person who took, authorized or caused the detrimental action to be taken shows that the act that constitutes the detrimental action is otherwise justified.
10. No Protections/Mitigation where Whistleblower was Perpetrator or Accomplice
(1) Subject to subsection (3), nothing in this Part shall prevent the institution of criminal proceedings against a whistleblower where the whistleblower was the perpetrator of, or an accomplice in, any corrupt conduct or improper conduct—
(a) to which the disclosure relates; and
(b) which constitutes a criminal offence.
(2) Subject to subsections (5) and (6), nothing in this Part shall prevent the institution of civil or disciplinary proceedings against a whistleblower where the proceedings arise from conduct of the whistleblower, other than the making of a protected disclosure.
(3) In any criminal proceedings instituted against a whistleblower on the basis that the whistleblower was the perpetrator of, or an accomplice in, the corrupt conduct or improper conduct disclosed by the whistleblower, the court shall, in giving its judgment or decision, take into due account—
(a) the fact that the disclosure was made by the whistleblower; and
(b) whether the whistleblower has assisted members of the Police Force in apprehending any other person involved in the commission of an offence,
and the punishment of the whistleblower may be mitigated or remitted as the court thinks fit.
(4) Where the court acts under subsection (3), the court shall expressly refer to that subsection in its judgment or decision.
(5) In any civil proceedings instituted against a whistleblower on the basis that the whistleblower was the perpetrator of, or was an accomplice in, the corrupt conduct or improper conduct disclosed by the whistleblower, the court may, where it finds that the whistleblower is responsible for the payment of damages, only hold the whistleblower liable for such part of the damage as he or she may have caused and not hold him or her liable jointly and severally with others.
(6) Where disciplinary proceedings are instituted against a whistleblower on the basis that he or she was the perpetrator of, or an accomplice in, the corrupt conduct or improper conduct disclosed by him or her, the disciplinary body shall—
(a) endeavour to mitigate the effects of any punishment; and
(b) where possible, not seek the dismissal of the whistleblower as punishment.
11. Protection of associated persons, wrongly identified persons etc.
(1) An associated person who suffers sanction on account of his or her association with a whistleblower shall enjoy the same protection as a whistleblower under this Part.
(2) A person who suffers sanction on account of his being perceived as or wrongly identified as a whistleblower shall enjoy the same protection as a whistleblower under this Part.
(3) This Part applies to a person described in subsections (1) and (2) as it applies to a whistleblower.
PART IV
MISCELLANEOUS
12. Prohibition of disclosure of information to identify whistleblower
(1) No Disclosure Receiving Authority to whom a protected disclosure is made or referred shall disclose information that identifies, or may lead to the identification of, the whistleblower, unless the whistleblower expressly consents in writing to the disclosure of that information.
(2) A Disclosure Receiving Authority shall not communicate the contents of a disclosure to any other person whether within or outside his her or its organization that is not directly involved in receiving, inquiring into or otherwise dealing with protected disclosures, unless he she or it first inquires into the protected disclosure and establishes that it is necessary or expedient in the public interest for further investigation to be carried out by the Disclosure Receiving Authority, the Special Prosecutor, members of the Police Force or any other body with investigative, prosecutorial or regulatory powers in relation to any corrupt conduct or improper conduct which constitutes an offence or other breach of law.
13. Provisions for non-disclosure void
Any provision in an agreement which precludes a whistleblower from making a protected disclosure or purports to require a whistleblower to—
(a) agree not to make a disclosure under this Act during or after his or period of employment or contract for services; or
(b) withdraw or abandon any disclosure made or proceedings instituted
under this Act, is void and of no effect.
14. Confidentiality
(1) Every person who receives, inquires into or otherwise deals with a protected disclosure shall regard and treat as secret and confidential—
(a) the disclosure and the identity of the whistleblower; and
(b) any statement given, or information or other thing provided, to the person in connection with the disclosure.
(2) A person who contravenes subsection (1) is guilty of an offence and is liable on summary conviction to a fine of $100,000 or to imprisonment for 2 years or to both.
(3) For the avoidance of doubt, any statement given or information or other thing provided in furtherance of a statutory duty, an investigation or any legal or disciplinary proceedings shall not be regarded as being inconsistent with subsection (1).
15. Offences and penalties
(1) A person who—
(a) purports to make a disclosure knowing that it contains a statement that is false or misleading, or reckless as to whether the statement is false or misleading;
(b) prevents or restrains a whistleblower from making a protected disclosure or hinders such a person in the making of such a disclosure;
(c) subjects a whistleblower to sanction on account of—
i. his intending or attempting to make or making a protected disclosure; or
ii. his being an associated person or mistakenly perceived or identified as a whistleblower;
(d) refuses, in bad faith, to receive a disclosure;
(e) induces another person by threats, promises or otherwise to prevent or restrain a whistleblower or associated person from making a protected disclosure or hinder such whistleblower in the making of such a disclosure;
(f) knowing that a document or other thing is relevant to a protected disclosure or the processing of a protected disclosure under this Act, destroys, mutilates, alters, falsifies or conceals the document or other thing, is guilty of an offence.
(2) A person who is guilty of an offence under subsection (1) is liable on— (a) summary conviction to a fine of $50,000 or to imprisonment for 2 years or to both; or (b) conviction on indictment to a fine of $100,000 or to imprisonment for 5 years or to both.
16. Application.
This Act applies to any protected disclosure made after the date on which this Act shall come into operation, irrespective of whether or not the corrupt conduct or improper conduct occurred before the date that the Act comes into operation.
17. Regulations.
(1) The Minister may make regulations for the purpose of giving effect to the provisions of this Act.
(2) Notwithstanding the generality of the foregoing, the Minister may make regulations relating to the handling of protected disclosures.
……………………………….
Lanein Blanchette
Speaker
Passed by the National Assembly this day of , 2023.
…………………………………..
Trevlyn Stapleton
Clerk of the National Assembly
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