With the recent raids by the Australian Federal Police on the Australian Broadcasting Corporation and an Australian journalist's home reminding us that whistleblowers are at risk of prosecution, Australia's whistleblower laws have been criticised for providing inadequate protection.
There is a growing recognition of the need for better protection of whistleblowers in the private sector across the world. The EU Parliament recently approved the new EU 'Directive on the protection of persons reporting on breaches of Union Law', which provides for internal and external reporting channels, and protection measures. Similarly, in the US and Canada, sophisticated whistleblower protection frameworks are already in place. The new amendments should put Australia on par with these countries.
What are the reforms?
While the Public Interest Disclosure Act 2013 (Cth) provided protection for whistleblowers in the public sector, those in the private sector had limited protection until now, with the long-awaited whistleblower reforms officially coming into effect last week
Officially commencing on 1 July 2019, the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth) provides a 'single, strengthened whistleblower protection regime' that 'covers the corporate, financial and credit sectors'.1
The amendments have now widened the scope of protection, including:
- who may make a disclosure;
- to whom the disclosure can be made;
- matters that can be disclosed; and
- the level of protection for whistleblowers.
These changes allow for enhanced protections for whistleblowers. These protections include protecting the anonymity of whistleblowers' identities, where previously whistleblowers were required to disclose their identity as a pre-requisite to being eligible for protection under the Corporations Act 2001 (Cth). Furthermore, these amendments protect whistleblowers from criminal or civil liability. A range of protections, such as court-ordered compensation and injunctions, are also available if the whistleblower suffers detriment.
In particular, the amendments provide a clear structure for disclosure. For a disclosure to attract protection the disclosure must be made to either:
- a prescribed body,
- an eligible recipient of the relevant regulated entity, or
- a legal practitioner for the purpose of obtaining legal advice.
What are my organisation's obligations?
Certain companies, such as public companies and large proprietary companies, must implement a whistleblower policy that informs officers and employees about protections available to whistleblowers, how disclosures are to be made and investigated, and ensuring fair treatment of the whistleblower and related employees.
Where to from now?
It will be interesting to see how the reforms play out in practice. However, there is now a statutory mechanism for private sector whistleblowers to report their concerns to recognised legal authorities without recrimination.
1 Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2018 (Cth) Revised Explanatory Memorandum.
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