If you have revenue greater than $50m, assets greater than $25m, or more than 100 staff, then you may need a whistleblower policy. Read on for more details.

According to the Australian Securities & Investments Commission, a whistleblower is an “insider within an organisation who reports misconduct, or dishonest or illegal activity that has occurred within that same organisation.”

The new whistleblower legislation [Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth)] amends the Corporations Act 2001 (Cth) along with several other Acts, to provide a regime to encourage whistleblowers to disclose suspected misconduct or illegal activity, and to protect them when they do.

Under the new whistleblower legislation:

• It is an offence to disclose the whistleblower’s identity (s1317AAE(1) of the Act).
• If a person makes a disclosure that qualifies for protection, the person is not subject to any civil, criminal or administrative liability (including disciplinary action) for making the disclosure. Additionally, no contractual or other remedy may be enforced, and no contractual or other right may be exercised against, the whistleblower (Subsection 1317AB(1)).
• Whistleblowers can seek compensation and other remedies for victimisation, including an order for reinstatement (s1317AE).
• More whistleblowers qualify as whistleblowing victims because the definition of “detriment” is expanded to include dismissal of an employee, injuring an employee in their employment, the alteration of an employee’s position or duties, harassment or intimidation, harm or injury to a person, damage to a person’s property, reputation, business or financial position or any other damage to a person (s1317ADA).
• A diverse range of people possessing information about disclosable matters are eligible for whistleblower protections in relation to a regulated entity, including officers and employees of a regulated entity, suppliers and their employees, individuals who are an associate of the regulated entity, and relatives, dependants or the spouses of these people (s1317AAA).
• The scope of disclosable matters is expanded to include misconduct, an improper state of affairs or circumstances, or the disclosure of information that indicates that the regulated entity or its officers, employees or related body corporates engage in conduct that constitutes an offence against the statutes listed in s1317AA(5)(c) of the Act (being Commonwealth offences punishable by 12 months’ imprisonment or conduct that represents a danger to the public or financial system) but excludes personal work-related grievances (s1317AA).
• Whistleblowers can make ‘public interest’ or ‘emergency’ disclosures to a member of Parliament (both state and federal) as well as to the legislature of a Territory, or to a journalist (which includes a person working in a professional capacity as a journalist for a newspaper or magazine, radio or television broadcasting service and an electronic service) (s1317AAD).
• Courts can make broader orders in favour of a person who has suffered loss, damage or injury as a result of detrimental conduct (s1317AE).
• The previous requirement that whistleblowers make disclosures “in good faith” is replaced with the requirement that the discloser has “reasonable grounds to suspect that the information concerns misconduct, or an improper state of affairs or circumstances” (s1317AA(4)).

Public and large proprietary companies must have a whistleblower policy

Public companies, large proprietary companies and registrable superannuation trustee corporations must have a whistleblower policy that starts on 1 January 2020 (see the new section 1317AI of the Corporations Act 2001 (Cth)).

A large proprietary company is one that satisfies at least two of the following criteria (for the 2019/20 FY):

• A consolidated revenue greater than $50 million;
• The consolidated gross assets of $25 million or more; and
• At least 100 employees in the company or entities that it controls.

If you are a large proprietary company, you must have a Whistleblower Policy and publish it to staff within 6 months of end of financial year – i.e. by 31 December 2020.

Whistleblower policy

A company’s whistleblower policy must include:

1. Protections to whistleblowers;
2. How to make disclosures;
3. Support for whistleblowers; and
4. Investigations and fair treatment protocols.

How to protect yourself?

You should check the new whistleblower protections. Civil and criminal penalties apply to employers who breach those protections. Companies regulated under the new Whistleblower Act should create new whistleblower policies or update their existing policies to comply with the new law. Your deadline is 31 December 2020.

If you require workplace law advice regarding the new whistleblower legislation, contact Peter McNamara.