On 12 March 2019, the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017 received Royal Assent, having earlier been passed by both Houses of Parliament on 19 February 2019. The new regime will apply from 1 July 2019. Importantly, all ‘public’ and ‘large proprietary’ companies now have until 1 January 2020 to adopt a compliant whistleblower policy.
1. Recap of the new regime
The new laws create a consolidated whistleblower protection regime which will apply to “regulated entities” and therefore capture a wide range of businesses.
Under the new laws:
- the scope of matters qualifying for protection has been expanded, and now contains a ‘catch all’ covering any information where the discloser has “reasonable grounds” to suspect it concerns “misconduct, or an improper state of affairs or circumstances, in relation to the regulated entity”;
- the category of individuals qualifying for protection has been expanded, and now includes persons who are, or have been, in a relationship with the relevant entity (for example, current and ex-employees and their spouses, children or dependents);
- anonymity for whistleblowers is enhanced and remedies are provided, including compensation, if a whistleblower suffers detriment from their identity being revealed;
- disclosures do not need to be made in “good faith” but rather a whistleblower is required to have “reasonable grounds” for the making a disclosure; and
- “(personal) work-related grievances” are covered under whistleblower laws only in limited circumstances, including where they relate to systemic issues or involves detrimental conduct to the whistleblower, otherwise these remain governed by existing workplace laws.
Further details of the new regime are contained in our earlier corporate alerts “Whistleblower Reform” (where we discussed the proposed whistleblower reform package) and “Whistleblower Regime Update” (where we provided a summary of the most recent key changes to the proposed whistleblower reform package).
2. Requirement to have a complaint Whistleblower Policy
The laws require ‘public’ and ‘large proprietary’ companies to have a complying whistleblower policy in place by 1 January 2020. Therefore, for these entities – as well as small proprietary companies who wish to meet the requirements for good governance practice – now is the time to think about reviewing any existing whistleblower policy and updating it to comply with the new requirements or preparing a new whistleblower policy if your business does not have one.
These policies will need to include information about:
- the protections available to whistleblowers;
- how a disclosure can be made and to whom it can be made;
- the support and protection that the company will provide to a whistleblower;
- the company process for investigations following a disclosure; and
- how those mentioned in disclosures will receive fair treatment.
Failure to comply with these policy requirements will be a strict liability offence and will be enforced by ASIC.