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New Protections for Whistleblowers - The Count Down is on!

By Sally McCutcheon

8th July 2019

New legislation that aims to protect people who report a company’s unlawful or unethical conduct is soon to come into effect, bolstering the protection afforded to whistleblowers and strengthening the legislative regime that supports their disclosures.

The Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 came into effect as of 1 July 2019, expanding the existing corporate whistleblowing scheme and creating a new tax affairs whistleblowing scheme.  The Corporations Act 2001 (Cth) will be amended to reflect the new consolidated protections for whistleblowers.

In general terms the reforms include the following changes:

  1. A broader definition of whistleblower, notably to include former as well as current employees, officers and contractors as well as their relatives;
  2. Expanding the matters that will be considered reportable disclosures to include reports that allege misconduct or an improper state of affairs or circumstances about any matter covered by financial sector laws and all Commonwealth offences punishable by imprisonment of 12 months or more;
  3. Creating civil penalty provisions (in addition to existing criminal penalties) for causing detriment to a whistleblower or breaching their confidentiality or anonymity;
  4. Protecting whistleblowers who make disclosures to members of Parliament and journalists in certain circumstances;
  5. Providing whistleblowers with easier access to compensation and remedies if they suffer detriment following their disclosure;
  6. Removing the requirement for a whistleblower to satisfy a ‘good faith’ test; and
  7. Requiring certain entities to have a whistleblower policy.

The new legislation applies to all companies, however, public companies, large private companies and private companies that are trustees of registrable superannuation entities are all obliged to have a whistleblower policy in place by 1 January 2020.

To be considered a large private company for the purposes of the whistleblower legislation, an entity must satisfy at least two of the following criteria:

  1. The consolidated revenue for the financial year of the company and the entities it controls is $25 million, or
  2. The value of the consolidated gross assets at the end of the financial year of the company and the entities it controls is $12.5 million; or
  3. The company and the entities it controls has 50 or more employees at the end of the financial year.

There are significant civil penalties for breaching a whistleblower’s anonymity and engaging in (or threatening to engage in) detrimental conduct towards a whistleblower, as well as substantial criminal penalties for failing to comply with the requirements of confidentiality and detrimental conduct provisions.

We recommend training staff who may receive disclosures to ensure they are confident in the process they should follow and do not inadvertently breach the legal protections afforded to genuine whistleblowers and face a significant fine.

If you need assistance in developing a compliant whistleblower policy or training your staff in their obligations under the new laws, please contact our workplace relations team.

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