As of 1 July 2019, potential whistleblowers across Australia enjoyed an added layer of statutory protections.
The Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 ('the amendment') has expanded the whistleblower protections previously contained in the Corporations Act 2001 ('Corporations Act'), and has inserted new protections into the Taxation Administration Act 1953 in relation to breach of tax laws or tax-related misconduct. This article considers the Corporations Act amendments, although we note that the changes to the Taxation Administration Act are largely similar.
The amendment will drastically broaden the scope of Australian whistleblower protections in relation to:
- who may make a disclosure
- who disclosures can be made to
- what matters are disclosable; and
- what protections are available to whistleblowers.
Although the protections will apply to all companies registered under the Corporations Act, the new regime will require some companies to also have a whistleblower policy in place which complies with the statutory requirements.
What must a corporate whistleblower policy include?
The amendment requires public companies, large proprietary companies1 and trustees of a registrable superannuation entity (within the meaning of the Superannuation Industry (Supervision) Act 1993) to have a whistleblower policy that complies with the statutory requirements. Moreover, these companies must make their whistleblower policy available to all officers and employees.
Whistleblower policies will need to include information about:
Who may make a disclosure?
- the protections available to whistleblowers
- to whom disclosures may be made, 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
- how the company will ensure fair treatment of employees of the company who are mentioned in disclosures that qualify for protection, or to whom such disclosures relate; and
- how the policy is to be made available to officers and employees of the company.
The amendment defines those individuals who may be eligible for protection as 'eligible whistleblowers'. This definition is much more expansive than the previous definition of 'discloser', and includes individuals who are currently, or have formerly been:
- an officer or employee of the regulated entity
- an individual who supplies services or goods to the regulated entity (whether paid or unpaid), and/or their employees
- an individual who is an associate of the regulated entity; and
- a relative or dependant of any of the above categories.
These individuals must be 'eligible whistleblowers' in relation to a regulated entity. The definition of 'regulated entity' includes:
- companies registered under the Corporations Act
- constitutional corporations (under s 51(xx) of the Constitution)
- authorised deposit-taking institutions
- general insurers; and
- superannuation entities.
The inclusion of individuals who have previously been involved with a regulated entity (e.g. past employees), along with relatives or dependants of any eligible individuals, has drastically widened the class of persons who may be protected.
Importantly, the amendment also provides that disclosures can be made anonymously, whereas previously a discloser was required to reveal their identity to receive protection.