25 October 2017

Whistleblower reform: Important improvements to Australia’s private sector whistleblowing laws

This article was written by Greg Golding. 

The Commonwealth government has released draft legislation containing important reforms to Australia’s private sector whistleblower laws.

Some of the more contentious proposals associated with whistleblowing that have been discussed this year, in particular the possible introduction of a US style bounty reward system for whistleblowers and the establishment of a specialised office of the whistleblower, are not addressed in the legislation and have now been deferred until 2018 for further consideration.

Importantly the legislation proposes that from 1 January 2019 all public and large propriety companies will be required to have whistleblower policies consistent with the new requirements. Clients have the opportunity to comment on the draft legislation through the Treasury website by 3 November 2017 and should plan on reviewing their whistleblowing policies in 2018.

The new legislation will generally be implemented as amendments to the existing whistleblower provisions of the Corporations Act. A parallel regime to cover whistleblowing in relation to the avoidance of tax is also proposed to be inserted in the tax laws. 

The key measures proposed to be enacted are as follows:

  • Expanding the categories of protected disclosures to disclosures concerning any fraud or serious misconduct, improper affairs or serious breach of Commonwealth law.
  • Protecting disclosures where the whistleblower has reasonable grounds to suspect a breach of law, without a requirement to prove the whistleblower is acting in good faith in coming forward.
  • Protecting whistleblowing made to a broader range of regulatory bodies (including ASIC, APRA and the AFP) and made to senior officers, auditors and whistleblower officers of a company or superannuation fund.
  • Facilitating anonymous whistleblowing and confidentiality by protecting the identity of whistleblowers if that is requested.
  • Protecting whistleblowing to journalists and politicians in extreme circumstances, where a protected disclosure has been made, a reasonable period has passed and the whistleblower has reasonable grounds to believe that there is an imminent risk of serious harm to public health or safety or the financial system.
  • Strengthening the anti-victimisation offence to extend the prohibition to any victimising conduct causing detriment to a whistleblower where a suspicion that whistleblowing has occurred is part of the reason a person has suffered detriment through victimisation.
  • Broadening whistleblowers rights to compensation to extend the right to seek compensation to any damage suffered by a victim where a suspicion that whistleblowing has occurred is part of the reason for the conduct that causes damage and by providing that a victim cannot generally have an order to pay court costs made against them in bringing a compensation action.

What next?

Anyone wishing to respond to the draft legislation has just over a week to do so with submissions due on 3 November 2017.

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