Whistleblowing plays an important role in identifying misconduct and harm to consumers and the community.
The Corporations Act 2001 (Act) encourages whistleblowers to raise their concerns and protect them when they do. The Act gives certain people legal rights and protection as whistleblowers.
From 1 July 2019, the whistleblower protections regime under the Act expanded to provide greater protection for whistleblowers who report misconduct.
The reforms are contained in the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019, which can be viewed here.
Summary of the Whistleblower Protection Act (or Regime)
July 2019 saw the introduction of the expanded protections and required public companies, large proprietary companies and corporate trustees of APRA regulated superannuation entitles to be given six months to get a whistleblower policy in place.
Of course, that brings us to January 2020 and it’s important that these policies are in place.
The following changes were made to the Act in July 2019:
- Definition of whistleblower expanded to include both current and former employees, officers and contractors as well as their spouses, dependents and other relatives
- Created civil penalty provisions to the existing criminal offences for causing or threatening detriment to a whistleblower or breaching their confidentiality
- Protection provided for whistleblowers if they disclose to a journalist or parliamentarian after they have reported to ASIC or APRA on concerns in regards to substantial or imminent damage to the health and safety of one or more people or the natural environment or matters of public interest
- Whistleblowers provided with access to compensation and remedies if they suffer detriment
The regime also applies to whistleblower reports made before 1 July 2019 if a whistleblower’s confidentiality was breached or they have suffered detriment on or after 1 July 2019.
From 1 January 2020, public companies, large proprietary companies and corporate trustees of registerable superannuation entities will be required to have a whistleblower policy and make the policy available to officers and employees of the company.
If a small proprietary company becomes a large proprietary company after 1 January 2020, there will be an additional 6 months to establish the policy.
If the companies fail to introduce the policy, there will be penalties for failure to comply.
The introduction of the whistleblower policies aims to increase corporate governance while ensuring that fair treatment is provided for whistleblowers.
The Whistleblower Protection Act has noted that the policies should contain information on:
- What disclosure qualifies for protection under the law and how they may be made
- How the company will support whistleblowers and protect them from detriment
- How the company will investigate disclosures that qualify for protection under the law
- How the company will ensure fair treatment of the employees of the company who are mentioned in disclosures
- How the policy will be made available to officers and employees of the company
- Any matter that is prescribed by the regulations
What you should do
- First and foremost, ensure that you have a policy in place.
- Get your policy reviewed, if it hasn’t been already, to ensure it is compliant with the new regime.
- Ensure your policy is made available to all officers and employees.
For assistance with any of the above, please don’t hesitate to get in touch with us here.
Disclaimer: This publication by Morrissey Law & Advisory is for general information and commentary only and should not be considered or relied upon as legal advice. Formal legal advice should be sought in relation to any matters or transactions that may arise in relation with communication.