New whistleblower laws

Amendments to the Corporations Act 2001 (Cth) and several other Commonwealth Acts have significantly expanded the Australian whistleblower protections and took effect 1 July 2019.

The amendments are designed to provide greater protection for whistleblowers who report information about alleged misconduct or an improper state of affairs in relation to companies and/or company officers.

There are several important amendments that you need to be aware of, including:

  • The categories of informants who are protected have been extended to both current and former officers, employees and suppliers as well as their family members;
  • Whistleblower protections and rights have been enhanced and whistleblowers can remain anonymous; 
  • It is a criminal offence to disclose the identity of a whistleblower without their consent (there are exceptions); and
  • heavy civil and criminal penalties can be imposed ($1.05m for individuals and $10.5m for companies).

Note that while the disclosable conduct listed under the legislation has been expanded, a control has also been put in place limiting informants from reporting issues pertaining to personal work-related grievances. 

More people can be ‘eligible recipients’ of disclosures, these include senior managers, directors, officers, lawyers, auditors or others authorised by the organisation.

The previous ‘good faith’ test has been replaced by the whistleblower only requiring ‘reasonable grounds’ to suspect wrongdoing.

You need to determine if your business is a ‘regulated entity’ because some employers, including public companies and some large proprietary companies are to have a Whistleblower Policy from the 1st of January 2020. 

Several compulsory items are to be included in a whistleblower policy for it to be compliant and you need to consider the following in section 1317AI of the Corporations Act:

  • Information about protections available to whistleblowers.
  • To whom and how disclosures are to be made.
  • How the company will support and protect whistleblowers.
  • How the company will investigate disclosures.
  • How the company will ensure fair treatment of employees mentioned in the disclosure.
  • Where the policy will be made available to employees and officers.

Failure to comply could lead to penalties. For more information refer to the ASIC website.

Disclaimer: This summary is not legal advice and for more information on whistleblower legislation call NECA Legal (WA) Pty Ltd on (08) 6241 6129 or email necalegalwa@ecawa.org.au.