Currently before the Senate, the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017 aims to improve the protection available for whistleblowers in the corporate, financial, credit and tax sectors.
If the Bill is passed by the parliament, the new legislation will see major amendments to the Corporations Act 2001 (Cth), creating an expanded regime under which both public and large private corporations will be required to implement internal whistleblower policies.
What changes will come about once the Bill is passed?
- Whistleblowers will be able to report a wider range of corporate misconduct;
- A wider net will be cast with regard to those who will become eligible to make protected disclosures;
- A wider range of people will be eligible to receive whistleblower disclosures, for instance the media or members of parliament will be allowed to receive disclosures for certain non-tax matters;
- Whistleblowers will be permitted to make disclosures on an anonymous basis to prevent risk of reprisals;
- Whistleblowers will only be asked to show that there are objective reasonable grounds to suspect wrongdoings for their disclosures. The existing ‘good faith‘ test will no longer be applicable;
- Protection and greater access to compensation will become available to whistleblowers who suffer reprisals, with a reverse onus of proof on the defendant;
- The court will receive greater power to give orders in favour of whistleblowers to compensate for their loss or injury suffered after their reporting of the misconduct;
- Public companies and large proprietary companies will be required to implement whistleblower policies by January 2019 and December 2019 respectively; and
- Individuals and corporations that disclose a whistleblower’s identity without prior consent will be subject to heavier penalties.
How will the Bill affect companies?
Public and large private companies alike need to ensure that they have a structured whistleblower policy in place prior to the required dates. The policy should be applicable to employees, past employees, contractors, suppliers and family members of employees.
Additionally, the policy should describe the process for dealing with disclosures, as well as the protections available to whistleblowers. The policy should also state that the organisation will ensure fair treatment of whistleblowers.
In addition to any compensation ordered by the court, individuals and corporations that breach a whistleblower’s anonymity and/or threaten the victim can face civil penalties up to respectively $200,000 and $1 million. As such, in addition to executing and distributing a company whistleblower policy, companies should create internal structures of management, at all levels of the company hierarchy, to whom disclosures can be made.
In line with this, managers who are subsequently appointed to this task should be trained on how to report disclosures in a way that protects the whistleblower’s identity.
Stay tuned for more information on the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017 – Coleman Greig will continue to publish further information on the status of the Bill as it progresses.