VIII tal-2013 - Att tal-2013 dwar il-Protezzjoni ta’ Informatur

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

Whistleblower Act, 2013.

(2) This Act shall come into force on such a date as the

Minister responsible for justice may by notice in the Gazette appoint,

and different dates may be so appointed for different provisions or

different purposes of this Act.

[Articles 16, 17 and 20]

Authorities Prescribed To Receive External Disclosures

Part 1 – Private Sector

Authority

Description of Matters

Auditor General

Failure to observe laws, rules and

regulations relating to public finance and

misuse of public resources.

Commissioner for Revenue

Income tax, corporation tax, capital gains

tax, stamp duties, national insurance

contributions, value added tax or "revenue

acts" as defined in the Commissioner for

Revenue Act.

Commissioner for Voluntary Organisations

Activities of a voluntary organisation

Financial Intelligence Analysis Unit

Money laundering or financing of terrorism

in terms of the Prevention of Money

Laundering Act.

Malta Financial Services Authority

The business of credit and financial

institutions, the business of insurance and

the activities of insurance intermediaries,

the provision of investment services and

collective investment schemes, pensions

and retirement funds, regulated markets,

central securities depositories, the carrying

out of trustee business either in a

professional or a personal capacity and such

other areas of activity or services as may be

placed from time to time under the

supervisory and regulatory competence of

the Malta Financial Services Authority.

Ombudsman

(i)

Conduct involving substantial risk

to public health or safety or the environment

that would if proved, constitute a criminal

offence; and

(ii)

All matters which constitute

improper practices and which are not

designated to be reported to any other

authority

Permanent Commission Against Corruption

corrupt practices

Part 2 – Public Administration

External Disclosure Whistleblowing Unit within

the Government of Malta

(1)

In this Act, unless the context otherwise requires

"authority" means the entities prescribed to receive external

disclosures, as listed in the First Schedule;

"bribery" means any conduct in violation of articles 112 or 115

or of article 121 insofar as it extends the application of articles 112

and 115 of the Criminal Code;

"contract of service" means

(i)

an agreement 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; and

(ii) an agreement, even if implied, whereby a person

agrees to render services for or at the request of a voluntary

organisation without remuneration;

"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

(d) prosecution under article 101 of the Criminal Code Cap. 9.

relating to calumnious accusations and, or;

(e) civil or criminal proceedings or disciplinary

proceedings;

"disciplined force" has the same meaning as assigned to it in

Article 47(1) of the Constitution;

"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 to which an obligation of professional secrecy applies

in terms of the Professional Secrecy Act when such work or

service is not regulated by a specific contract of service and

"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; or

(c)

any person in employment in the public

administration, including as a member of a disciplined force;

(d)

any former employee;

(e)

any person who is or was seconded to an employer;

or

(f)

any volunteer in terms of article 2 (1) of the

Voluntary Organisations Act even when such work or service is

not regulated by a specific contract of service;

(g) any candidate for employment only where

information concerning a serious threat to the public interest

constituting an improper practice has been acquired during the

recruitment process or at another pre-contractual negotiating

stage;

"employer" means any natural person, legal organisation or

statutory body whether forming part of the public administration or

the private sector who

(a)

enters into a contract of service with an employee;

or

(b) who employs or engages or permits any other person

in any manner to assist in the carrying on or conducting of his

business; or

(c)

who seeks to employ other persons,

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;

"External Whistleblowing Disclosure Unit" means with respect

to the public administration, such section, body or unit as may be

established to carry out the functions designated in article 17;

"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 an action or a series of actions

whereby

(a)

a person has failed, is failing or is likely to fail to

comply with any law and/or legal obligation to which he is

subject; or

(b) the health or safety of any individual has been, is

being or is likely to be endangered; or

(c) the environment has been, is being or is likely to be

damaged; or

(d) a corrupt practice has occurred or is likely to occur

or to have occurred; or

(e)

a criminal offence 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) bribery has occurred or is likely to occur or to have

occurred; or

(h)

a person above his authority; or

(i)

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

Provided that in the interpretation of this definition

due account shall be given to the de minimis rule so that very

minor or trivial matters shall not fall under the provisions of this

Act;

"internal disclosure" is a disclosure made in accordance with

Section 2 of Part III;

"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;

"organisation" means any legal entity, whether having legal

personality or not;

"person" means a natural person;

"protected disclosure" means an internal disclosure or an

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 Cap. 492.

whether such organisation is enrolled in terms of the said Act;

"whistleblower" means any employee who makes a disclosure

to a whistleblowing reporting officer or a whistleblowing reports unit,

as the case may be, whether it qualifies as a protected disclosure or

not under this Act;

"whistleblowing reporting officer" means such officer within an

employer charged with carrying out the functions designated by

article 12;

"whistleblowing reports 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 administration, the External

Whistleblowing Disclosure Unit.

(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,

to members of the Security Service or to persons employed in the

foreign, consular or diplomatic service of the Government 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 make not applicable or modify the provisions of this

Act as necessary for the purpose of the protection of national security,

defence, intelligence, public order and the international relations of

the State.

PART II

PROHIBITION OF DETRIMENTAL ACTION

[Article 12]

Subject Persons

For the purposes of Section 2 of Part III of this Act, an

"employer" is

(1) Each ministry of the Government of Malta;

(2) Any organisation within the private sector which,

according to its last annual or consolidated accounts, meets at least

two of the following criteria

-

an average number of employees, during the

financial year, of more than 250;

-

a total balance sheet exceeding forty-three million

euro (€43,000,000); and

-

an annual turnover exceeding fifty million euro

(€50,000,000).

(3) Any voluntary organisation which annually raises more

than five hundred thousand euro (€500,000) from public collections

and other donations.

The Minister may from time to time prescribe regulations,

amend this Schedule or any part thereof, for the better

implementation of the provisions of this Act and any regulations

made thereunder.

Passed by the House of Representatives at Sitting No. 53 of 16th

July, 2013.

A NĠLU F ARRUGIA

Speaker

R AYMOND S CICLUNA

Clerk to the House of Representatives

Subject to the exceptions stated in this Act, despite any Prohibition of

prohibition of or restriction on the disclosure of information under detrimental

action.

any enactment, rule of law, contract, oath or practice a whistleblower

may not be subjected to detrimental action on account of having made

a protected disclosure.

(1) Notwithstanding the provisions of the Criminal

Code or of any other law, a whistleblower who makes a protected

disclosure is not liable to any civil or criminal proceedings or to a

disciplinary proceeding for having made such a disclosure.

(2) The protection afforded to a whistleblower shall not be

prejudiced on the basis only that the whistleblower making the

disclosure was, in good faith, mistaken about its import or that any

perceived threat to the public interest on which the disclosure was

based has not materialised or that the person making the disclosure

has not fully respected the procedural requirements of this Act or of

any regulations or guidelines made under this Act.

(1) Subject to the provisions of the proviso to sub-article

(2), and to the provisions of sub-articles (3) and (4), nothing in this

Part shall prevent the institution of criminal proceedings against the

whistleblower where the said whistleblower was the perpetrator or an

accomplice in an improper practice which constitutes a crime or

contravention under any applicable law prior to its disclosure.

(2) Subject to the provisions of sub-paragraph (ii) of sub-

article (3), nothing in this Part shall 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

Provided that

(i)

any court or tribunal taking cognizance of

proceedings instituted against any whistleblower based on the

fact that the said person was the perpetrator or was an

accomplice in the improper practice reported by the said person

shall, in giving its judgement or decision take into due account

the fact that the disclosure was made by such person in such

manner as it deems appropriate and the punishment of such

whistleblower may be mitigated or remitted and the court or

tribunal shall expressly refer to the provisions of this article in

its judgement; and

(ii) in any civil proceedings instituted against a

whistleblower based on the fact that the said person was the

perpetrator or was an accomplice in the improper practice

reported by the same person, the court shall, if it finds that the

whistleblower is responsible for the payment of damages only

hold him liable for such part of the damage as he may have

caused and shall, notwithstanding the provisions of articles

1049, 1050 and 1051A of the Civil Code or of any other law,

hold not him liable jointly and severally with others

Provided that the exemption from joint and several

liability provided for in this sub-paragraph shall not apply in the

case of damages resulting from wilful homicide or from

grievous bodily harm; and

(iii) where the whistleblower is an employee of the

public administration and disciplinary proceedings are instituted

against him based on the fact that he was the perpetrator or was

an accomplice in the said improper practice reported by him, the

public administration shall endeavour to mitigate the effects of

any punishment, and shall, where possible, not seek dismissal as

the punishment inflicted in the said disciplinary proceedings.

(3) Notwithstanding the provisions of this article, where in

criminal proceedings as provided for in sub-article (1) instituted

against a whistleblower,

(i)

the prosecution declares in the records of the

proceedings that the accused has disclosed an improper practice

which constitutes a criminal offence liable to a punishment of

imprisonment of more than one year which has helped the

police to apprehend the person or persons who committed the

said criminal offence; or

(ii)

the whistleblower proves to the satisfaction of the

court that his whistleblowing report has so helped the police,

the punishment for such crime shall be diminished as regards

imprisonment by one or two degrees and as regards any

pecuniary penalty by one-third or one-half

Provided that the court may, if it considers that the

circumstances of the case so merit, after hearing all the evidence

and after convicting the whistleblower either further reduce the

punishment or exempt the whistleblower from punishment

completely

Provided further that when it applies the above

proviso to exempt the whistleblower from punishment

completely the court shall make a report to the President of the

Republic stating the reasons for its action and shall expressly

refer to the provisions of this article in its report.

(4) The Attorney General, after having consulted the

Commissioner of Police and a judge of the superior courts who at the

time of the consultation is not a judge assigned to take cognizance of

criminal trials, may, if in his individual judgement he is satisfied of

the advisability to do so, whether unconditionally or under such

conditions as he deems fit, issue a certificate in writing exempting

any whistleblower to which sub-article (1) applies from any criminal

proceedings as provided for in sub-article (1) and in such case the

Attorney General shall make a report to the President of the Republic

stating the reasons for his action and shall expressly refer to the

provisions of this article in his report.

(1) Every whistleblowing reporting officer or

whistleblowing reports unit to whom a protected disclosure is made

or referred must not 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) The whistleblowing reports unit shall not communicate the

contents of the disclosure to other departments within the authority of

which it forms part until it has duly investigated the disclosure and it

has established that it is necessary or appropriate in the public interest

for further investigation to be carried out by such other departments

or with the police in relation to an improper practice which

constitutes a crime or contravention under any law. Notwithstanding

any other law, the authority shall not be restricted in any manner in

sharing information with the whistleblowing reports unit about its

investigations from time to time for the whistleblowing reports unit to

determine whether it has any relevant information on the subject

matter under investigation.

(3) Guidelines may be issued by each authority setting out –

(a)

the duties of communication between the

whistleblowing reports unit and the whistleblower 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.

(4) The protection provided for in this article shall not be

subject to any exceptions and no court may order the disclosure of the

identity of any whistleblower without his consent.

(1) A person who believes that detrimental action has been

taken or is to 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 Cap. 12.

Organization and Civil Procedure, an injunction granted in terms of

sub-article (3)(b) shall be for an indefinite period until an application

for its revocation is made and need not be followed by an action on

the merits. The provisions of articles 873 and 875 of the Code of

Organization and Civil Procedure shall apply to warrants issued under

sub-article (3)(b).

(5) The provisions of articles 829 to 838B of the Code of Cap. 12.

Organization and Civil Procedure shall not apply to injunctions

granted in terms of sub-article (3)(b).

(6) Notwithstanding the provisions of Schedule A of the Code Cap. 12.

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) but, if granted, an award on costs

shall be made against the respondent.

Any person who may have suffered detrimental action as a Right to

result of making a protected disclosure shall, without prejudice to any compensation

after detrimental

other right under any other law, have a right to compensation for any action.

damage caused.

PART III

DISCLOSURES

SECTION 1

PROTECTED DISCLOSURES

(1)

A disclosure is a protected disclosure if -

(a)

it is made in good faith; and

(b) the whistleblower reasonably believes, at the time of

making the disclosure based on the information he has at that

moment, 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

(c)

the disclosure is not made for purposes of personal

gain.

(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 and any person or organisation,

other than the employer or officers or shareholders of the same when

an organisation, which is prejudiced by the disclosure of such false

information given in a disclosure made under this Act shall not by

virtue of this Act be hindered in the exercise of any legal action or in

the enforcement of any legal remedy available to that person or

organisation under any other law in respect of the said prejudice

Provided that such remedy shall only be available if the

identity of the whistleblower has been obtained or otherwise

disclosed in accordance with the provisions of this Act.

(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.

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.

(1) Disclosures made anonymously shall not be Anonymously

made

considered as protected disclosures in terms of this Act.

disclosures.

(2) A whistleblower reporting officer or whistleblowing

reports unit may receive and process an anonymous disclosure and

may take such a disclosure into account in determining whether an

improper practice has occurred

Provided that where the whistleblower reporting officer or

the whistleblowing reports unit, after having taken into account all

the relevant circumstances consider that the anonymous information

received by them is likely to be defamatory or libellous they shall

discard such information.

SECTION 2

INTERNAL DISCLOSURES

(1) Every employer must have in operation internal Internal

procedures for receiving and dealing with information about improper procedures

receiving and

practices committed within or by that organisation; such internal dealing

protected

procedures must at least identify the person or persons within the information.

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.

(4) For purposes of Part III Section 2, "employer" shall have

the meaning as is assigned to it in the Second Schedule.

(1) The whistleblowing reporting officer must, within a Notice to

reasonable time after receiving an internal disclosure, notify the whistleblower.

whistleblower 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.

(3) In the event that a disclosure under this Part leads to the

detection of an improper practice which constitutes a crime or

contravention under any applicable law, the whistleblowing reporting

office may refer the report received to the police for investigation

thereof

However, should the subject matter of the report have been

rectified no provision of any law shall be interpreted as imposing an

obligation on the whistleblowing reporting officer to report such

matter.

An internal disclosure may be made to the head or deputy

head of the organisation, who is hereby deemed to be the

whistleblowing reporting officer and subject to the provisions of

articles 6 and 13, if

(a)

the organisation has no internal procedures

established and published for receiving and dealing with

information about an improper practice; or

(b) the whistleblower believes on reasonable grounds

that the whistleblowing reporting officer is or may be involved

in the alleged improper practice; or

(c)

the whistleblower 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

EXTERNAL DISCLOSURES

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 attempted to be made.

(1) An external disclosure may be made to the

whistleblowing reports unit of the authority as provided in the First

Schedule if the whistleblower 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 whistleblower has not been informed on the

status of the matter disclosed or it is reasonably evident to the

whistleblower 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 whistleblower to make the disclosure to the

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, not

exceeding 45 days, notify in writing the whistleblower 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.

(1) All authorities referred to in the First Schedule shall

set up a whistleblowing reports unit.

(2) The whistleblowing reports 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 First Schedule so as to determine

whether the disclosures should be referred for further investigation

and the conditions under which such referral should take place.

(1) Where the authority to whom a protected disclosure is

made considers that the information disclosed can be better

investigated by another authority or in the case of an improper

practice which constitutes a crime or contravention under any

applicable law by the police, the authority to whom the disclosure is

made may, within not more than 30 days, refer that information to

such other authority or the police, as the case may be, and

immediately inform in writing the whistleblower accordingly

Provided that the identity of the whistleblower shall not be

disclosed except with his prior consent in writing.

(2) A protected disclosure does not, by reason of its referral to

another authority or the police, cease to be a protected disclosure.

PART IV

OFFENCES AND PENALTIES

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 or 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 matter hinders him

in the use of, any tools, clothing or other property owned or

used by such other person,

shall be guilty of any offence and be liable on conviction to

imprisonment for a period not exceeding one year or to a fine (multa)

of not less than five hundred euro (€500) and of not more than five

thousand euro (€5,000) or to both such imprisonment and fine,

without prejudice to any heavier punishment to which the offence

may be liable under any other enactment

Provided that where as a result of his conduct the person

convicted has achieved his aim the punishment of imprisonment shall

be increased by one to two degrees and the fine (multa) shall not be

less than one thousand five hundred euro ((€1,500) and not more than

ten thousand euro (€10,000).

PART V

REGULATIONS AND GUIDELINES

(1) In addition to the matters on which the Minister is Regulations and

empowered to prescribe rules under the provisions of this Act, the guidelines.

Minister may from time to time make regulations, generally for the

better implementation of this Act and to

(i)

establish the internal procedures which employers

must have in operation for receiving and dealing with

information about improper practices committed within or by

that organisation;

(ii) establish the procedures which an authority in terms

of the First Schedule needs to have in place to receive and

process external disclosures;

(iii) lay down the rules for disclosure between the

whistleblowing reports unit and the other departments within

the authority of which the whistleblowing reports unit forms

part;

(iv) set out the duties of communication between the

whistleblowing reports unit and the whistleblower and the

restrictions thereon; and

(v)

lay down rules for the better implementation of this

Act.

(2) An authority may, in furtherance of any of its functions

under this Act, from time to time issue and publish guidelines on all

matters in respect of which the Minister may issue 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 of

the authority or on such later date as may be stated therein.

PART VI

MISCELLANEOUS

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.

The Minister may, for the purpose of the protection of

national security, defence, public order and the international relations

of the State, by notice in the Gazette exempt any person or class of

persons without retrospective effect from all or any of the provisions

of this Act on any ground which to him may seem sufficient. Any

such exemption may be made subject to such conditions or to the

fulfilment of such other procedures, formalities or obligations, as the

Minister may deem appropriate.

This Act shall apply to disclosures of information made

after the coming into force of this Act, irrespective of whether or not

the improper practice being the subject of a disclosure has occurred

before or after the coming into force of this Act.

PART VII

AMENDMENTS TO THE POLICE ACT

This Part amends the Police Act and it shall be read and Amendment of

construed as one with the Police Act, hereinafter in this Part referred the

to as "the principal Act".

Immediately after article 90 of the principal Act there shall Adds new

article to the

be added the following new article

principal Act.

90A. (1) Notwithstanding the other provisions

of this Title where the Commissioner is of the opinion

that the identity of a person merits to be protected, in

circumstances where such person is willing to give the

Police reliable information and documents relating to

the commission of a crime consisting of an improper

practice as defined in the Protection of the

Whistleblower Act which information and documents

constitute reliable evidence which can be used in

criminal proceedings and which provide a reasonable

chance of conviction of another person for the

commission of such an offence, he may recommend to

the Attorney General that such person be admitted to

the witness protection programme only to the extent

and for the purpose that his identity as the source of

the said information and documents be protected.

(2) If the Attorney General after receiving a

request in accordance with sub-article (1) and acting

in his own individual judgement, agrees that such

protection of identity should be granted, whether

subject to conditions or unconditionally, he shall issue

a certificate to that effect and the Commissioner shall

be entitled to protect the identity of the said person

and not to give any information in any court on the

identity of the said person on the basis the said

certificate.

(3) When a certificate as referred to in sub-

article (2) is issued, no proceedings may at any time

be taken 'ex officio' against the person in favour of

whom the certificate is issued only on the basis of the

information and documents supplied by that person to

the Police.

(4) It shall be lawful for the Attorney General

acting in his own individual judgement and after

consulting the Commissioner to revoke the said

certificate, either from the original date of issue or

from the date of revocation if he is satisfied that the

said certificate was obtained fraudulently or on the

basis of materially incorrect or misleading

information having been given to the Commissioner

by the person in whose favour the certificate was

issued or by any other person on his behalf. In

exercising his power under this sub-article the

Attorney General shall give reasons for his decision.

(5) A revocation made in terms of sub-article

(4) shall be without prejudice to any criminal or civil

liability of any person involved in wrongfully

obtaining the said certificate.

(6) Nothing in this article shall be interpreted

as a derogation from any right of the Police to protect

its informers in general as may result from any law in

force or applicable from time to time.".