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Whistleblower protection changes on the way. Are you ready?

Posted on May 25, 2018

The importance of protecting whistleblowers has long been recognised however, the statutory whistleblower regime in Australia has often been criticised as piecemeal, inadequate, and unclear.

On 7 December 2017, the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017 (Bill) was introduced into Parliament to consolidate and broaden the existing whistleblower protection regime in the corporate, financial, and not-for-profit sectors. In this article, we examine the key changes in the Bill and what this means for employers.

What are the key changes?

The Bill proposes to amend the Corporations Act to:

  • Expand the categories of qualifying whistleblowers to include former officers, employees, contractors, and suppliers as well as associates and family members of these individuals.
  • Remove the “good faith” requirement for whistleblower protection. This means that a person’s motivation for making a protected disclosure is irrelevant;
  • Expand the entities that can be the subject of protected disclosures to include all corporations to which paragraph 51(xx) of the Constitution applies. Crucially, this means the whistle-blower protections will now apply directly to incorporated bodies governed by the Associations Incorporation Act 2015 and not-for profits.
  • Expand the category of persons to whom a disclosure can be made to include a manager or supervisor of the whistleblower and a journalist or member of Parliament in certain circumstances;
  • Expand the scope of corporate misconduct can be the subject of a protected disclosure;
  • Increase protection, remedies and sanctions for reprisals, including:
  1. allowing anonymous disclosures;
  2. making it easier for whistleblower to claim compensation;
  3. imposing civil penalties for victimisation; and
  4. extending the range of orders a court may make in respect of victimisation, including apologies and reinstatement.
  • Require public companies and large proprietary companies to have whistleblower policies.
  • Preventing companies from using the protections as a defence for failure to investigate or to take appropriate action in response to a disclosure.

A similar regime will be introduced in the Taxation Administration Act 1953 to protect individuals who report misconduct in relation to an entity's tax affairs.

If passed, the changes are expected to apply to disclosures made on or after 1 July 2018, including disclosures about events occurring before that date. Whistleblowers will also have access to compensation and enhanced protection against victimisation after 1 July 2018, regardless of when the disclosure was made.

What this means for employers

In anticipation of the proposed changes, companies must:

  • Consider whether they are a regulated entity about which a protected disclosure can be made;
  • Consider whether they are required to introduce a whistleblower policy and whether their current whistleblower policy is compliant with the new requirements;
  • Ensure that the whistleblower policy is made available to officers and employees;
  • Ensure that the company has processes in place for protecting whistleblowers and responding adequately to disclosures (including anonymous reporting); and
  • Ensure that key senior management personnel have been provided with training to respond appropriately to disclosures.

Please contact a member of Lynch Meyer’s Workplace Relations team if you require advice about the changes to the whistleblower regime or assistance reviewing and updating your workplace policies and procedures.

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