This article examines the implications of the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2018 and provides tips on what employers should be doing now to prepare for the changes.
Recently the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2018 (Act) passed through the House of Representatives, meaning that it has now been passed by both houses of Parliament.
The next step is for the Act to receive Royal Assent by the Governor General. If this occurs before 1 April 2019 (which we would expect), the substantive provisions will commence on 1 July 2019. Although the requirement to have a compliant policy takes effect six months later on 1 January 2020, employers must comply with the Act from commencement.
What does the Act change?
As you may be aware, the Act will:
- amend the Corporations Act 2001 (Cth) to strengthen and consolidate whistleblower protections;
- amend the Taxation Administration Act 1953 (Cth) to create a whistleblower protection regime for disclosures of information by individuals about breaches of the tax laws or misconduct in relation to an entity's tax affairs; and
- repeal the existing financial sector whistleblower regime and implement transitional arrangements.
The most notable features of the Act (including the amendments to the original Bill) include:
- significantly extending the group of people who can make disclosures and be eligible for protection;
- broadening the types of wrongdoing whistleblowers can make disclosures about (although there is now a carve-out for disclosures about 'personal work-related grievances' meaning they would not benefit from the whistleblower protections in some circumstances);
- expanding who can receive a whistleblower's disclosure – including senior managers and officers;
- replacing the current 'good faith test' with a requirement that the whistleblower has objectively reasonable grounds to suspect wrongdoing;
- allowing anonymous disclosures;
- strengthening immunities for whistleblowers;
- providing an avenue for emergency disclosures to Parliament/journalists in some circumstances;
- providing an avenue for 'public interest disclosures' to Parliament/journalists in some circumstances, based on a broad public interest test;
- increasing penalties for individuals and corporations if a whistleblower's identity is revealed without consent;
- making it easier for whistleblowers to be compensated if they suffer detriment, with a reverse onus of proof on the defendant – and prescribing relevant considerations a Court will take into account;
- expanding the orders that may be made by a Court in favour of a person who has suffered loss, damage or injury as a result of detrimental conduct; and
- requiring public and large proprietary companies to have a compliant policy that is made available to their officers and employees, with penalties applying for non-compliance.
What you should be doing
Ideally employers will want a compliant whistleblowing policy in place from the date the Act commences on 1 July 2019 or, failing that, at least some way of dealing with complaints that means they do not breach the Act.
Now is the time to determine whether your company is required to have a mandatory policy (some smaller companies are excluded), or reviewing your whistleblowing policy to ensure it reflects the requirements of the Act. You should also review your existing grievance procedures to see how they fit in with the scope of 'personal work-related grievances' that are carved out from protections under the Act.