Long called for by anti-corruption groups, government has released draft whistleblower legislation which aims to combat corruption and other wrongs in the public and private sectors by encouraging and facilitating disclosures by employees.
The Protected Disclosures (Whistleblower) Bill 2015 is in the name of Attorney General Basil Williams. It is not clear when it will be laid in the National Assembly. It has been published on the website of the Official Gazette.
According to the Explanatory Memorandum, the bill marks another step towards full compliance with the Inter-American Convention against Corruption. It says that the legislation would assist in combating corruption and other wrongdoings both in the public and private sector by encouraging and facilitating the making by employees of specified disclosures of “improper conduct” in good faith and the public interest.
It also seeks to regulate the receiving, investigating or otherwise dealing with disclosures of improper conduct; to protect employees who make specified disclosures from being subjected to occupational detriment; and for related matters.
Part 1 of the Bill defines a number of terms including protected disclosure, improper conduct, occupational detriment, Designated Authority, designated officer, and prescribed person.
It defines “improper conduct” as conduct that tends to show that a criminal offence has been committed, is being committed or is likely to be committed; that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject; that a miscarriage of justice has occurred, is occurring or is likely to occur; that the health or safety of any individual has been, is being or is likely to be endangered; or that the environment has been, is being or is likely to be damaged.
It also includes conduct that tends to show that gross mismanagement, impropriety or misconduct in the carrying out of any activity that involves the use of public funds or any financial resource has occurred, is occurring or is likely to occur; that an act of reprisal or victimisation of an employee has occurred, is occurring or is likely to occur; that unfair discrimination on the grounds set out in section 4(2) of the Prevention of Discrimination Act has occurred, is occurring or is likely to occur; and that 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.
Clause 3 establishes the scope of the Bill. It applies to any disclosure made notwithstanding that the conduct to which the disclosure relates may have occurred before its coming into operation or may have occurred within or outside of Guyana.
However, a disclosure of information is not protected if the employee making the disclosure commits an offence by making it. In addition, nothing in the bill authorises the disclosure of information that is protected by legal professional privilege. Further, a disclosure shall not qualify for protection under this Act unless it is made in good faith and in the public interest.
Clause 5 sets out the procedures for disclosures. Procedures required to be established for the making of disclosures shall be in writing and shall contain information specified in the Second Schedule such as the full name, address and occupation of the person making the disclosure and the nature of the improper conduct in respect of which the disclosure is made.
Part II deals with disclosures qualifying for protection. This part sets out the disclosures by an employee that are protected. These disclosures include disclosures to the employer, the Minister, a prescribed person, the Designated Authority, an attorney-at-law and to the President or a Minister in matters relating to national security, defence or international relations.
Clauses 13 and 14 set out the procedures for the making of disclosures internally and externally, respectively. Clause 15 provides for the immunity from civil and criminal proceedings of a person making a protected disclosure.
Part III deals with Provisions Against Occupational Detriment. Under Clause 16 an employee shall not be subjected to any occupational detriment for making a protected disclosure.
“Occupational detriment” means any act or omission that results in an employee, in relation to his employment, being subjected to disciplinary action; terminated, suspended, or demoted; harassed, intimidated or victimised; transferred against his will; refused transfer or promotion; denied access to internship, training, or scholarships for professional advancement; subjected to a term or condition of employment or retirement from employment, that is altered to his disadvantage; provided with an adverse reference; denied appointment to any employment, profession or office; threatened with any of the actions specified in paragraphs (a) to (i); or otherwise adversely affected in respect of his employment, profession or office, including employment opportunities and job security.
Under clause 17 where an employee suffers an occupational detriment within the same time that he makes a protected disclosure, such shall be presumed to be a consequence of the disclosure.
Part IV deals with Receiving, Investigating and Otherwise Dealing with Disclosures.
Clause 18 sets out the duty to receive and carry out investigations into disclosures. Where an investigation should be preceded with, the person to whom a disclosure is made shall take all necessary steps including commencing the investigation, ensuring that they are carried out fairly, review the results and report the findings to the employee or any other person under the Bill. The first named person may also take steps to remedy the improper conduct and ensure that the rights of the employee and other persons are protected.
Under Clause 19, an employer or other person to whom a disclosure is made may, in certain circumstance, refuse to deal with the disclosure or commence an investigation where, for instance, the subject matter of the disclosure or the related investigation has been adequately dealt with or the subject matter of the disclosure is deemed frivolous or not sufficiently important.
Under Clause 20 any provision of an agreement shall be void if the provision precludes the employer from making a protected disclosure.
Part V deals with Oversight Functions. Clause 21 states that the Minister shall, by Order, designate an individual or entity as the Designated Authority for the purposes of this Bill. This Authority shall monitor compliance with the Bill and the Third Schedule shall apply to such monitoring. The Designated Authority shall publish procedural guidelines and provide assistance to persons seeking to make disclosures and to any person who is a designated officer, employer or other person. The Designated Authority shall review, from time to time, the procedures and their implementation and operation and make recommendations arriving from any review. Further, the Designated Authority shall within six months after the end of each year prepare a report for transmission to the Minister on the activities of the Authority. Thereafter, the Minister shall cause a copy of the report to be tabled in the National Assembly.
Part VI deals with miscellaneous matters. Clause 22 states that nothing in the Bill affects the right of any employee to seek redress for occupational detriment through any process prescribed by law. Under Clause 23 a person commits an offence if he prevents an employee from making a protected disclosure or aids, abets, procures or conspires with any other person or induces any person to contravene this Bill. A person who commits an offence under this clause is liable on summary conviction or on conviction on indictment to both monetary penalties and imprisonment.
The penalties include a fine of $2 million and imprisonment for a term of two years upon summary conviction while upon conviction on indictment, the penalty is a fine of $3 million and to imprisonment for a term of five years.
Clause 24 states that every person receiving, investigating or otherwise dealing with a disclosure under this Bill shall regard the disclosure as secret and confidential. A contravention of this section is an offence which on summary conviction is subject to a fine of $2 million and to imprisonment for a term of two years.
Under clause 25 the Minister may make regulations subject to affirmative resolution for carrying out the purposes of the Bill.