Start whistle blown on new whistleblower legislation

Over a year since it was first introduced, the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017 (whistleblower legislation) has passed the House of Representatives, incorporating amendments made by the Senate. The aim of the whistleblower legislation is to create a single, strengthened whistleblower protection regime covering the corporate, financial and tax sectors. It also aims to encourage ethical whistleblowing and discourage white collar crime.

The whistleblower legislation will apply from the second quarter after the bill receives royal assent. This means that it could apply as early as 1 July 2019, should it receive royal assent by 1 April 2019.

The new changes are intended to consolidate whistleblower protections into the Corporations Act 2001 (Cth), to increase protections for the people who make disclosures, and expand the subject of disclosures.

Disclosures will relate to subjects beyond criminal breaches, including relating to breaches of tax laws or breaches of ASIC and APRA laws. Conduct that is not illegal but indicates systemic issues will also be subject to the whistleblower laws. However, the protections will not extend to disclosures which are only about personal, employment or workplace grievances. Examples of this category include things such as interpersonal conflicts, transfer, promotion, or disciplinary decisions.

The whistleblower legislation will expand the number of people who can be ‘eligible whistleblowers’ to cover an individual who is or has been in a relationship with a company (eg former employees, contractors, employees of contractors, associates, and relatives of such individuals).

Also, those to whom disclosures can be made will now include senior managers of a company. In certain circumstances, disclosures can be made to journalists and politicians if they qualify as ‘public interest disclosures’ or ‘emergency disclosures’.

The whistleblower legislation will increase the level of protection provided for whistleblowers by, amongst other things:

• strengthening the requirement of confidentiality of a whistleblower’s identity, including whistleblowers being entitled to a right to anonymity and introducing a range of civil penalties for anyone that reveals a whistleblower’s identity;
• increasing the immunities provided to whistleblowers and ensuring that information they disclose is not admissible in evidence against them; and
• expanding and clarifying the prohibition against victimisation of whistleblowers and the penalties for engaging in victimisation.

In addition, if a company is under a duty of care to prevent a person from engaging in conduct which causes or threatens to cause detriment against a whistleblower, courts will be able to make orders for relief against the company if they fail to fulfil that duty. Employers should be careful to ensure that no victimisation occurs to any whistleblowers in their employ.

Public companies and large proprietary companies will need to have a whistleblower policy in place within six months of the commencement of the regime. Employers should begin to formulate whistleblower policies and processes now to ensure that they are in compliance with the new laws. We are well placed to assist in developing compliant policies.