Expanded Whistleblower Protection Regime for the Private Sector in Australia

Author: David Robinson

Overview

Changes to Australia’s whistle blowing laws and an expanded whistleblower protection regime for the private sector will come into effect on 1 July 2019 under the Treasury Laws Amendment (Enhancing Whistleblowers Protections) Bill 2018.

The objective of the new regime is to protect whistleblowers by strengthening the protections and remedies available to those who blow the whistle on wrong doing in the private sector in line with the provisions that already exist in the public sector. It covers those who report misconduct in the corporate, tax and financial sectors and includes all companies, banks, general insurers, life insurers, superannuation entities and other prescribed regulated entities.

Mandatory whistleblower policies

It will be mandatory for all public companies, large proprietary companies or corporate trustees of registrable superannuation entities to have and make available a policy with information about the protections that are available to whistleblowers. In essence if you are currently required to lodge your annual financial statements with ASIC the new whistleblower regime relates to you.

Under the new Regulations, a proprietary company will be considered ‘large’ for a financial year if it satisfies at least two of the following requirements:

  • $50 million or more in consolidated revenue for the financial year of the company and the entities it controls (up from $25 million);
  • $25 million or more in consolidated gross assets at the end of the financial year of the company and the entities it controls (up from $12.5 million);
  • The company and the entities it controls have 100 employees or more at the end of the financial year (up from 50).

What does this mean?

The new regime is very broad and has significant implications for corporate Australia. Some major changes include:

  • More people can make a disclosure and the list has been expanded to cover former company officers, employees, contractors and suppliers as well as relatives and dependants of officers, employees, contractors and suppliers.
  • Much more can be disclosed now if the discloser has ‘reasonable grounds’ to suspect ‘concerns misconduct, or an improper state of affairs or circumstances’ in relation to the company or a related body corporate.
  • There is more protection for whistleblowers as the Bill provides them with a broader immunity, confidentiality and protection against victimisation. It is an offence to disclose the identity of a discloser, including information that could lead to the identification of the discloser, without their consent. A whistleblower cannot be subject to any civil, criminal or administrative liability (including disciplinary) for making a protected disclosure.
  • Anonymous disclosures are now protected under these new laws.
  • There are big penalties for non-compliance as civil penalty provisions apply to breaching the confidentiality of a whistleblower and victimisation with maximum fines of $1.05million for individuals and $10.5 million for a body corporate.
  • Large companies must have a whistleblower policy that is easily accessible that complies with the legislation within 6 months of its commencement. It needs to detail:
  • the protections that are available to whistleblowers
  • to whom qualified disclosures may be made to and how they can be made
  • the support that is available for whistleblowers
  • how the company will investigate disclosures and ensure the fair treatment of employees.

How to get ready

  • Have a look at your current whistleblower policy or have one drafted.
  • Make sure such a policy is easily accessible and understood.
  • Put a process in place to enable and monitor anonymous reporting.
  • Put in place processes for protecting whistleblowers and ways to respond to disclosures.
  • Implement investigation procedures.
  • Put a training program in place for your employees, senior managers and Board in relation to the new regime.

Should you require further information to the above please do not hesitate to contact your engagement partner on 02 9283 166.