Australia takes a big step forward in whistleblower protection

January 24, 2019

Australian whistleblower protection takes a big step forward: WhistleB welcomes the Australian Senate’s recent adoption of the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017. After years of working with these issues on a global scale we are happy to see Australia becoming the next in an increasingly longer line of jurisdictions moving to enhance the protection of whistleblowers. According to the Explanatory Memorandum, the new laws will affect approximately 33,000 companies in Australia. Costs of non-compliance can be high, including criminal prosecution and million-dollar fines. This article summarises the most important aspects of the Treasury Laws Amendment from the perspective of organisational whistleblowing and Australian whistleblower protection.

What are the main changes brought about by the Treasury Laws Amendment?

The new Australian whistleblower protection legislation will:

  • Broaden the scope of individuals eligible for protection; they no longer need to be a current employee of the organisation in question
  • For the first time, allow for anonymous disclosures
  • Enable protection of the identity of whistleblowers
  • Broaden the scope of persons eligible to receive a whistleblower disclosure
  • Improve access to compensation or other remedies as a result of victimisation following a whistleblower disclosure

Requirement to have a whistleblower policy in place under the Australian whistleblower protection legislation

According to the Explanatory Memorandum, “Transparent internal whistleblower policies are essential to good corporate culture and governance”. In practice this means that public companies, large proprietary companies and proprietary companies that are trustees of registrable superannuation entities will be obliged to have a whistleblower policy in place and make it available.

What must the whistleblower policy include?

The whistleblower policy must provide information about:

  • The protections available to whistleblowers under the Australian whistleblower protection legislation
  • How and to whom an individual can make a disclosure
  • How the company will support and protect whistleblowers
  • How investigations into a disclosure will proceed
  • How the company will ensure fair treatment of employees who are mentioned in whistleblower disclosures
  • How the policy will be made available
  • Any matters prescribed by regulation

What happens if companies do not comply?

It is essential for decision makers to be well prepared for the Australian whistleblower protection law, as failure to comply may incur a penalty of 60 penalty units (currently AUD12,600 for an individual), which will be enforced by the Australian Securities & Investments Commission. Disclosure of a whistleblower’s identity may result in a maximum penalty of AUD200,000 for an individual and AUD1 million for a corporation. A whistleblower who has suffered damage as a result of victimisation from his or her employer or another person is entitled to compensation for that damage.

When will the new Australian whistleblower protection laws come into force?

Based on the Australian judicial process, we expect that the new laws will come into force in the second half of 2019.

WhistleB has been a long-time advocate of whistleblower protection. We strongly believe that organisations that are transparent and offer secure ways of reporting on wrongdoings without risks of retaliation, are more successful in the long term. Our customers benefit from WhistleB’s experience in setting up and maintaining a sound whistleblowing structure. For more information on organisational whistleblowing management, please contact: jan.stappers@whistleb.com.

Author: Jan Tadeusz Stappers, legal counsel of WhistleB, a leading provider of organisational whistleblowing solutions.

 

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