The Whistleblower Laws introduced expanded whistleblower protections regarding all Australian companies
by Luis Izzo, Managing Director, Australian Business Lawyers & Advisors (ABLA)
Following more than 12 months of passage through Parliament, new Federal whistleblower laws were enacted on 19 March 2019. On 4 April this law was modified, resulting in the new law taking effect on 1 July 2019.
The Whistleblower Laws introduced:
- expanded whistleblower protections regarding all Australian companies;
- a requirement for larger Australian companies to introduce a Whistleblower Policy; and
- new significant penalties for breaches of whistleblower protections, ranging up to $10.5million.
Who can make whistleblower disclosures under the new laws?
The category of persons who can make disclosures protected by the laws is now expanded to include employees, officers and suppliers of companies as well as their family members.
Disclosures may now be made anonymously and can still be protected by the laws.
Which entities are covered by the laws?
- companies registered under the Corporations Act 2001;
- insurers;
- life insurance companies; and
- superannuation entities or trustees.
What types of disclosures are protected?
The disclosures protected by the laws include disclosures where a person has reasonable grounds to suspect that the information disclosed concerns:
- misconduct or an “improper state of affairs or circumstances” regarding any of the entities covered by the laws or their related bodies corporate;
- conduct that breaches the Corporations Act 2001 or conduct that breaches the ASIC Act or a range of specified insurance, life insurance and superannuation statutes;
- conduct that relates to an offence against any law of the Commonwealth which is punishable by imprisonment for 12 months or more; or
- a danger to the public or the financial system.
Importantly, disclosures about personal work-related grievances are not generally protected by the laws. This includes disclosures about:
- matters pertaining to a discloser’s employment that impact upon the employee personally;
- interpersonal conflict between a discloser and another employee;
- decisions relating to promotions, demotions, terms and conditions of employment; and
- decisions about taking disciplinary action against a discloser (including decisions about suspension and termination of employment).
Who can disclosures be made to in order to be protected?
Protected disclosures can be made to the following persons:
- officers of a company;
- senior managers;
- auditors of a company;
- actuaries of a company; and
- trustee’s of a superannuation entity.
Additionally, if a discloser has taken a number of prescribed steps to previously disclose the information and has reasonable grounds to believe that action is not being taken to address the relevant issue, there is a capacity (subject to certain pre-requisites being met) to make protected disclosures to a journalist or member of State or Federal Parliament.
New requirement for Whistleblower Policy
The laws require all public companies to introduce a Whistleblower Policy. This also applies to companies with:
- consolidated ‘Group’ revenue in excess of $50m;
- consolidated gross assets of more than $25m or more; or
- 100 or more employees at the end of the financial year.
The Whistleblower Policy must be in place before 1 January 2020 or else companies may face fines of up to $12,600.
What are the penalties that apply for breaching the laws?
If an individual or company breach the confidentiality of a whistleblower’s identity, fines of up to $1.05m apply to individuals and up to $10.5m apply to companies engaged in the breach.
If an individual or company victimises or threatens to victimise a whistleblower (that is, treat them detrimentally), fines of up to $1.05m apply to individuals or up to $10.5m apply to companies engaged in the breach.
Need assistance?
Australian Business Lawyers & Advisors (ABLA) is currently assisting a number of employers with implementing a response to the introduction of these new laws. Companies needing tailored advice should contact us.
Alternatively, should you be requiring a standard Whistleblower Policy compliant with the new laws, ABLA will be providing businesses with such policies at a reduced standard fee of $500 (ex gst) until the introduction of the laws on 1 July 2019.
To access this offer, get in touch with either of us to review your requirements.
ABLA, which specialises in employment law, workplace investigations and HR consulting, has been voted 1# Employment and Workplace law firm of the year. Call Managing Director Luis Izzo on 1300 565 846 if you have any questions raised by this article.
