Australia Takes a Big Step Forward in Whistleblower Protection

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GUEST BLOGGER

Jan Tadeusz Stappers
Legal Counsel, WhistleB

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. The Australian Senate recently adopted the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017. 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.

The new legislation will:

  • Broaden the scope of individuals eligible for protection; they no longer need to be a current employee of the organization 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 victimization following a whistleblower disclosure

Requirement to have a whistleblower policy in place
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

  • 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 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 victimization from his or her employer or another person is entitled to compensation for that damage.

When will the new 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 when organizations are transparent and offer secure ways of reporting on wrongdoings without risks of retaliation, they 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 organizational whistleblowing management, contact jan.stappers@whistleb.com.