Monday, 30 October 2017

Sweeping reform to overhaul corporate whistleblower protection regime in Australia

The Federal Government has recently released an exposure draft of the Treasury Laws Amendment (Whistleblowers) Bill 2017 (the Bill).

Australia’s existing whistleblower protection laws have been the subject of criticism due to their limited scope and complexity.

The purpose of the Bill is to address these criticisms and create an overarching and consistent whistleblower protection regime for the corporate and financial sectors.  The regime proposed significantly broadens the scope of conduct covered and introduces key new protections for whistleblowers as well as corporate accountability measures.

The exposure draft has been released following extensive consultation and a parliamentary enquiry into whistleblower protections in the corporate, public and not-for-profit sectors.

Key changes for whistleblowers
The key changes under the draft Bill include:
  • expanding the scope of persons that qualify as ‘eligible whistleblowers’ under the regime, in particular to include former employees and officers
  • expanding the scope of persons to whom a disclosure may be made by a whistleblower that is covered under the regime
  • expanding the conduct covered so that whistleblowing for all forms of serious wrongdoing in a Commonwealth legal context are protected
  • removing the requirement for whistleblowers to make disclosure ‘in good faith’ and instead replacing this concept with an objective reasonableness test which requires the whistleblower to have ‘reasonable grounds’ to suspect misconduct
  • the introduction of mechanisms to allow for anonymous disclosure and further protection of the identity of whistleblowers and other victims in certain circumstances
  • expanding the compensation regime available for whistleblowers, and
  • protection from information disclosed by the whistleblower (provided it is covered under the regime) being admissible in evidence in criminal proceedings or proceedings for a penalty against the whistleblower, other than in proceedings concerning falsity of the information itself.

What do companies need to do?
All companies regulated by the Corporations Act 2001 (Cth) should be aware of the proposed changes.  In addition, public companies and large proprietary companies will be required to:
  • have a whistleblowing policy which contains information about protections available to whistleblowers and how the company will ensure fair treatment, and
  • make the policy available to its employees and other ‘eligible whistleblowers’.
Failure to comply with this requirement will be an offence of strict liability. 
Companies should also review any current policies and ensure they meet the requirements.

When is the new regime scheduled to commence?
The regime is scheduled to apply to any disclosure made by a whistleblower on or after 1 July 2018, including disclosures about events occurring before that date.

Public companies and large proprietary companies will need to have a compliant whistleblowing policy in place on and after 1 January 2019 (or, following that, no later than six months after a proprietary company first becomes a large proprietary company).

Submissions on the exposure draft close on 3 November 2017.  For more information regarding submissions, click here.

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