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Malta – Standards – Disclosure – Authorities

Malta – Standards – Disclosure – Authorities

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 attempted to be made.

16. (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.

17. (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.

18. (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.

 

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18. An external whistleblowing procedure shall be initiated by the disclosure of information to a competent authority.

Where whistleblowing pertains to employees of the competent authority, the whistleblower shall make the disclosure to the head of such authority; where whistleblowing pertains to the head of a competent authority, the whistleblower shall make the disclosure to the head of the authority directly superior to such competent authority.

The competent authority shall be required to act upon any disclosure referred to in paragraph 1 of this Article within 15 days of receiving such disclosure.

Where the competent authority to which the disclosure was made does not have jurisdiction to act in connection with such whistleblowing, it shall forward the information to the authority vested with such jurisdiction within 15 days of receiving such information, and shall notify the whistleblower of this action.

The authority referred to in paragraph 4 of this Article shall be bound by the safeguards provided to the whistleblower by the forwarding authority.

Where the whistleblower has not approved that his identity be revealed, and the competent authority to which the disclosure was made by the whistleblower does not have jurisdiction to act, it shall, prior to forwarding the disclosure to the competent authority, request approval for doing so from the whistleblower, unless otherwise stipulated by the law.

The competent authority shall, upon the whistleblower’s request, provide him with information about the progress of any and all actions undertaken in the course of the procedure, and enable him to have access to the case files and participate in actions in the course of the procedure.

The competent authority shall be required to notify the whistleblower of the outcome of the procedure referred to in Paragraph 1 hereof after the conclusion of the procedure, in accordance with this Law.

Referenced Legislation: Protection of the Whistleblower Act (2013)

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