A significant part of the community pressure that led to the Federal Government establishing the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (Banking Royal Commission), after initially opposing it, came from whistleblowers.
This, combined with the fact that the Banking Royal Commission uncovered many instances of conduct that that did not meet community expectations, has solidified Australian voter support for whistleblower protection to be enhanced.
In this context, the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2018 (Bill) was first introduced into the Australian Senate in December 2017 and immediately referred to the Senate Economics Legislation Committee for further consideration and consultation.
The report of the Committee, which was issued in late March 2018, demonstrated that, while there was widespread support for the Bill, many contributors to the debate considered that the December 2017 version of the Bill did not go far enough in providing adequate protection for whistleblowers.
A significantly amended version of the Bill was passed by the Senate in December 2018. As that amended version of the Bill had bipartisan political support it quickly passed the House of Representatives when it was introduced in the first sitting period of 2019. The Bill is now waiting for royal assent.
Scope of new regime
The new whistleblower legislation applies to the corporate and financial sectors. The new legislation replaces existing regulation, which was criticised for providing inadequate protection and also for not covering all relevant areas of potential corporate misfeasance. For example, under existing law only current officers, employees and contractors may make disclosures and there is no regime for the protection of whistleblowers who disclose breaches of tax laws or tax related misconduct or breaches of Australia’s consumer credit laws.
Under the new regime, which will be implemented primarily via amendments to the Corporations Act 2001 (Cth) (Corporations Act) and Taxation Administration Act 1953 (Cth) (Tax Act), whistleblowers will receive protection if they report corruption, fraud, tax evasion or avoidance and misconduct.
The legislation does not deal with the public sector. There is separate legislation that provides for a whistleblower regime for the Commonwealth public sector (in particular, under the Public Interest Disclosure Act 2013 (Cth) – which has some similarities to the new corporate and financial sector regime). There are State and Territory based public sector disclosure regimes.
Some of the key provisions of the Bill are:
- the Corporations Act will be amended to consolidate whistleblower regimes in other finance sector related legislation (such as, for example, the Banking Act 1959 (Cth) and the Insurance Act 1973 (Cth) with the previous regime in the Corporations Act to provide one regime to cover the corporate, financial and credit sectors
- disclosures of tax law breaches and tax misconduct by whistleblowers will be protected under amendments made to the Tax Act.
- a whistleblower is a person who is in (or has been in) a relationship such as an employment relationship with the relevant corporation or, in the case of the new tax regime, entity (which is broadly defined) to which the disclosure relates.
Persons to whom disclosures may be made
- generally a whistleblower needs to make his or her disclosure to an eligible recipient (and the classes of persons falling within that definition will vary depending on the regime), ASIC or APRA in the case of the Corporations Act or, in the case of the new tax regime, the Australian Taxation Commissioner. Disclosures to lawyers are permitted. A whistleblower may, under the Corporations Act regime, but not the Tax Act regime, also make disclosure to a politician or journalist where there is a public interest or emergency reason.
Types of matters that may be disclosed:
- under the Corporations Act, disclosures may be made in relation to all corporations in respect of actual or suspected misconduct, contravention of laws administered by the Australian Securities & Investments Commission (ASIC) or the Australian Prudential Regulation Authority (APRA), conduct that represents a danger to the public or financial system or offences under Commonwealth law punishable by 12 months or more jail time
- under the Tax Act, disclosures may be made in relation to tax law breaches or taxation misconduct and must be, in the case of disclosure to the Australian Tax Commissioner, of information that will assist the Commissioner to enforce Australia’s tax laws or be to an eligible recipient who is in a position to take some action regarding the information.
Protections for whistleblowers
- protections for whistleblowers include, for example, rights of whistleblowers to make disclosures on an anonymous basis and the provision of immunities to whistleblowers so that information disclosed is not able to be used against the whistleblower in a prosecution.
Compensation for whistleblowers and penalties
- a whistleblower who suffers detriment in relation to making a relevant disclosure may be eligible for compensation. Penalties for breaches of the regimes, including victimisation, are high.
The Minister will be required to undertake a review of the whistleblower regimes five years after implementation of the Bill. This review will consider the effectiveness of the regimes and whether any changes should be considered.
Requirement for whistleblower policies
One interesting aspect of the new regime is the requirement, incorporated in the Corporations Act, that public companies (and certain proprietary companies) establish whistleblower policies that set out internal systems to appropriately deal with whistleblower disclosures. These policies will need to be in place six months after the new regime commences and should cover, for example, protections available to whistleblowers, how (and to whom) disclosures may be made, how investigations will be conducted and the like. The intention of imposing this requirement is to assist in improving corporate culture and governance. These policies will need to be in place six months after the commencement of the new regime.
The new legislation will commence in the short term, probably from 1 July 2019. This means corporates have a short window to review the effectiveness of their existing whistleblower policies and procedures. Even those corporates who are not required by the new legislation to have a formal whistleblower policy should consider implementing one to ensure they are fully in compliance with the new regimes.
When announcing the passage of the legislation, the Assistant Treasurer, Stuart Robert MP, stated “(o)ur package of reforms will help to put an end to the significant personal and financial loss that can result from blowing the whistle on misconduct by increasing protections, remedies and sanctions for whistleblowers. These reforms are advanced by international standards.”
Even though this is the Government’s view, the Labor Opposition has indicated that, if it wins the next election, it would introduce further legislation in this area, including to provide for rewards to be available to whistleblowers.
Therefore Australia may be in for further change in this area in the near future.