Whistleblowing Legislation in Asia and Oceania

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Overview of Whistleblowing Legislation in East Asia and Oceania

Introduction

Whistleblowing legislation in Asia is evolving to address the complex challenges faced by individuals who expose corporate and governmental misconduct. This overview examines the diverse legal frameworks across the region, with a particular focus on Hong Kong.

We will look at key case studies that illustrate both the progress and ongoing struggles in protecting whistleblower in the region. From Japan’s enhanced safeguards following the Olympus scandal to Hong Kong’s fragmented protections revealed by the Evergrande case, and China’s mixed enforcement exemplified by the Foxconn incident, these examples underscore the critical need for robust and comprehensive whistleblower protections.

This article aims to provide a detailed look at the current state of whistleblowing laws in various Asian countries, shedding light on the successes and areas needing improvement.

Whistleblowing & Law – Hong Kong

In Hong Kong, there is no single piece of legislation which offers whistleblowers comprehensive protection. Instead, there are provisions in various ordinances which provide protection, but only to specific whistleblowers who report on specific offences. For example:

Employers are prohibited from terminating employees if they participate in legal proceedings related to the Employment Ordinance or workplace safety. In simpler terms, employees can’t be fired for standing up for their rights or safety at work.
Hong Kong’s discrimination ordinances make it illegal for someone (the discriminator) to discriminate against another person (the victim) simply because the victim has brought proceedings against the discriminator or provided evidence in such proceedings. This ensures that individuals can seek justice without fear of retaliation.
Whistleblowers who report suspected drug trafficking, money laundering, or crimes are protected under various ordinances. This means they won’t face consequences for disclosing information, even if there are contractual or legal restrictions against it. Additionally, their identity can remain confidential during civil or criminal proceedings.
Informers under the Prevention of Bribery Ordinance have their identity safeguarded, and any documents that could reveal their identity are edited before disclosure. This protection encourages individuals to come forward with information about bribery without fear of reprisal.
The Securities and Futures Ordinance shields whistleblowers from civil liability when reporting financial irregularities or breaches of financial rules within a company. This protection encourages transparency and accountability in financial practices.
Employees providing information to the Competition Commission or testifying in its proceedings are safeguarded against retaliation, discrimination, intimidation, or harm by their employers. This ensures that employees can contribute to fair competition without fear of adverse consequences from their employers.[1]

Relevant whistleblowing laws in Asia and Oceania

This section delves into the intricate landscape of whistleblowing legislation across various Asian countries, providing a comprehensive overview of the protections and challenges faced by whistleblowers. By examining detailed case studies and legal frameworks from China, Japan, South Korea, Taiwan, Singapore, and other nations, we aim to shed light on the effectiveness of existing laws and the areas that require further improvement. The references provided offer in-depth insights into the specific legislative measures and their implications for whistleblowers, highlighting the ongoing efforts to enhance transparency and accountability in the region.

China

Whistleblower protection is included in various laws and regulations, but enforcement can be inconsistent. The Chinese Communist Party has encouraged whistleblowing through its anti-corruption campaigns, but reporting can still carry risks due to potential retaliation.[1]

Japan

Japan has the Whistleblower Protection Act, which protects employees who report misconduct in the workplace. The law aims to prevent retaliation against whistleblowers and provides legal remedies for those who face retaliation.[2]

South Korea

South Korea enacted the Act on the Protection of Public Interest Whistleblowers, which provides protections and incentives for whistleblowers who report corruption, safety violations, and other misconduct. The law includes provisions to safeguard whistleblowers from retaliation.[3]

Taiwan

Taiwan has drafted the Whistleblower Protection Act, which protects whistleblowers from retaliation and provides mechanisms for reporting misconduct. The law is poised to cover both public and private sector employees.[4]

Singapore

There is no overarching legislation on whistleblowing in Singapore.

Under Singapore law, however, there are certain situations where there is an obligation to give information about the commission or the intention of a person to commit a criminal offence.

Members of the public are also obliged to provide any information relating to corrupt acts they are in possession of if the Director of the Corrupt Practices Investigation Bureau requires them to do so.[5]

Philippines

The Office of the Ombudsman, which has the mandate to investigate graft and corruption offences, is subject to Office Order No. 05-18 which details ‘Rules on Internal Whistleblowing and Reporting’.

These Rules contain protections against workplace retaliation. For example, section 6 contains protection against retaliatory actions.

Section 3 contains a requirement to keep the whistle-blower’s identity and any information which could identify them confidential unless the whistle-blower consents to disclosure. [6]

Australia

The Corporations Act 2001 (Corporations Act) gives certain people legal rights and protections as whistleblowers.

From 1 July 2019, the whistleblower protections in Part 9.4AAA the Corporations Act 2001 (Corporations Act) have been expanded to provide greater protections for whistleblowers who report misconduct about companies and company officers. The reforms to the regime were contained in the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019, which received Royal Assent on 12 March 2019.[7]

Indonesia

In Indonesia, legislation related to whistleblowing primarily centres around the Law on the Protection of Witnesses and Victims (Law No. 31 of 2014). This law offers general protections, including physical and legal safeguards, for witnesses and victims of crimes.

Although whistleblowers are not explicitly mentioned, they may benefit from these provisions. Additionally, Circular Letter of the Supreme Court Number 4 of 2011 provides some guidance on the treatment of criminal whistleblowers and perpetrator witnesses.

However, there is still debate over the effectiveness of these measures in adequately safeguarding whistleblowers. Overall,

Indonesia lacks specific legislation solely dedicated to whistleblowing, indicating a need for more comprehensive legal frameworks to protect whistleblowers’ rights and ensure their anonymity.[8]

Malaysia

Malaysia has the Whistleblower Protection Act, which protects individuals who report corruption, criminal offenses, and other misconduct. The law provides protections against retaliation and encourages reporting through various channels.[9]

Cambodia

Cambodia’s Anti-Corruption Law provides very limited protection for whistleblowers. The ACU, established by the Anti-Corruption Law, has the power to implement measures on whistleblowers, but no measures have yet been published.

In contrast to most whistleblowing provisions in other countries, the Anti-Corruption Law criminalises whistleblowing in certain situations. When allegations of corruption contain disinformation or ‘defamatory’ statements, a whistleblower may be subject to punishment.[10]

Vietnam

In Vietnam, whistleblowing or denunciation is mainly handled in accordance with the Law on Denunciation No. 03/2011/QH13, the Criminal Proceedings Code No. 19/2003/QH11 and the Anti-Corruption Law.

Denunciation may be made verbally or in writing. Denouncers and their relatives are protected by certain legal mechanisms. Although the denouncers must give their name and address when making the denunciation, their identifying information may be kept confidential.[11]

Thailand

While provisions for whistleblower protection are cursorily mentioned in the Executive Measures in Anti-Corruption Act, B.E. 2551, and Penalty in Witness Protection Act, B.E. 2546, Thailand has no dedicated whistleblower protection law.[12]

New Zealand

New Zealand has the Protected Disclosures Act, which protects whistleblowers who The Protected Disclosures (Protection of Whistleblowers) Act 2022 supersedes the 2000 version, enhancing the reporting and investigation of serious wrongdoing in workplaces. It broadens the definition of wrongdoing, permits direct reporting to authorities, and shields whistleblowers from retaliation.

Organisations must acknowledge, investigate, and address disclosures within 20 working days. Public sectors establish internal procedures, while private sectors are not obligated to do so. Appropriate authorities handle disclosures, with the Ombudsman providing support and guidance.[13]

Whistleblowing Case Studies

This section explores notable whistleblowing case studies in Asia, highlighting the significant challenges and evolving attitudes towards corporate whistleblowing and whistleblowing legislation in Asia.These case studies underscore the critical need for robust legal protections and support systems for whistleblowers across Asia.

In Japan, the case of Olympus Corporation illustrates the challenges and evolving attitudes towards corporate whistleblowing in Asia.

Former CEO Michael Woodford uncovered long-standing financial misconduct within the company, but his whistleblowing led to his immediate dismissal and threats to his safety. The abrupt removal of the executive by the board of directors prompted the Japanese government to enhance safeguards for whistleblowers.

A committee was formed to revise the Whistleblower Protection Act, mandating that large corporations establish internal mechanisms to protect whistleblowers. Notably, the revised legislation extends protection not only to employees but also to executives. The amended bill was approved by the Diet in 2020.[1]

In Hong Kong, in 2021, an anonymous Evergrande employee leaked internal documents, revealing the company’s financial struggles and prompting investor panic. This sparked regulatory scrutiny and shed light on broader issues in China’s real estate sector, emphasising the need for transparency and accountability. Though the whistleblower’s identity remains unknown, their actions significantly impacted Evergrande and the wider real estate market in Hong Kong and China.

In January 2024, a court in Hong Kong ordered the liquidation of Evergrande.[2]

In China, Tang Mingfang, an office manager at a Foxconn factory, became a whistleblower after witnessing the exploitation of student workers brought in to meet the demand for Amazon products. Despite knowing the risks, Tang reported the factory’s violations of labour laws to China Labor Watch.

After his disclosure, Foxconn and Amazon promised corrective actions, but little changed. Tang was later arrested, accused of stealing trade secrets, and sentenced to two years in jail. Upon his release, he faced challenges finding work due to his criminal record and sought justice through international legal avenues, alleging complicity of Amazon in the exploitation at the factory. Despite his struggles, Tang remains determined to seek vindication for his actions.[3]