Whilst the key to whistling may have been summed up by Lauren Bacall to Humphrey Bogart in To Have and Have Not, it is, unfortunately, not nearly so easy to summarise Australia’s new whistleblower laws which took effect on 1 July 2019.
The Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth) provides a single, enhanced whistleblower protection regime for both public and private sectors.
The amendments have the effect of:
- expanding what disclosures are protected;
- expanding who is an ‘eligible whistleblower’;
- expanding the range of people to whom a disclosure needs to be made in order to qualify for protection;
- allowing anonymous disclosures;
- increasing protection for whistleblowers;
- increasing civil and criminal penalties for disclosing a whistleblower’s identity (without consent and/or legal basis) and/or victimising or threatening a whistleblower; and
- requiring certain entities to have a whistleblowing policy.
Do I need a policy?
Public companies, large proprietary companies and proprietary companies that are trustees of a registrable superannuation entity are required to have a compliant whistleblower policy. These entities will either need to develop a whistleblower policy or update its existing policy by 1 January 2020; failure to do so could result in the maximum penalty of $12,600 for an individual and $63,000 for a body corporate.
The policy will need to be made publicly available to anyone who may qualify as an ‘eligible whistleblower’ and must cover the following aspects:
- the protections available to whistleblowers, including the protections available under the legislation;
- how and to whom an individual can make a disclosure;
- how the company will support whistleblowers and protect them from detriment;
- how the company will investigate disclosures that qualify for protection under the legislation;
- how the company will ensure fair treatment of employees who are mentioned in whistleblower disclosures; and
- how the policy will be made available.
Protection of whistleblowers
One of the main focuses of the new whistleblower laws is to ensure that the whistleblower’s identity is protected and that whistleblowers do not suffer backlash in the form of “detrimental conduct”.
Detrimental conduct refers to any actual or threatened conduct that could cause a detriment to the whistleblower as a result of making a disclosure. Examples of detrimental conduct include dismissal, demotion or disciplinary action, harassment, bullying or intimidation, personal or financial disadvantage, unfavourable treatment and any conduct that constitutes retaliation.
The regulated entities are required to implement internal policies to ensure that the identity of whistleblowers remain confidential and that whistleblowers do not experience detrimental conduct. Failure to do so will result in civil penalties.
We recommend that you consider whether your entity is required to have a whistleblower policy in place. If you already have a policy, we recommend that you review it to ensure that it is compliant with the new legislation. We also recommend that you consider providing appropriate training to deal with the new legislation, particularly for managers and supervisors who may be authorised to be recipients of a disclosure.
We can assist you to understand your obligations under the new whistleblower regime and implement new or update existing whistleblower policies.
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