Whistleblower Protection Policies

Corporate News - 05 July 2019

The Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Amendment Act) came into force on 1 July 2019 and provides a single, strengthened whistleblower protection regime covering the corporate, financial and credit sectors. Under the Amendment Act, all public companies, large proprietary companies and proprietary companies that are trustees of a registrable superannuation entity (Relevant Companies) will need to have a whistleblower policy in place as soon as possible (and no later than 1 January 2020 to avoid penalties).  Relevant Companies will need to provide training to employees to ensure that potential eligible recipients of disclosures know how to identify a whistleblower report and what to do if or when they receive one.  The Amendment Act amends the whistleblower provisions and protections available under the Corporations Act 2001 (Cth) (Corporations Act) and the Taxation Administration Act 1953 (Cth) (Taxation Act).
The key changes to the Corporations Act and the Taxation Act as a result of the Amendment Act include:

  • expansion of the definitions of “eligible whistleblower” and “eligible recipient”;
  • increased range of misconduct whistleblowers can make disclosures about (although certain work related grievances have been carved out);
  • allowing anonymous disclosures;
  • replacing the “good faith test” with a requirement that the whistleblower has objectively reasonable grounds to suspect wrongdoing;
  • allowing “emergency” or “public interest disclosures” in certain circumstances;
  • increased protections available to whistleblowers and making it easier for them to be compensated by reversing the onus of proof when seeking compensation;
  • a requirement for Relevant Companies to have a whistleblower policy in place with mandatory content set out under the Amendment Act; and
  • increased civil and criminal penalties for breaches under the Amendment Act, Corporations Act and Taxation Act.

Whilst the effective date of the Amendment Act is 1 July 2019, the amendments may apply to disclosures even if the disclosed conduct occurred before the commencement date.  The amended victimisation and compensation provisions may apply to protected disclosures made at any time, if the victimisation in respect of the disclosure occurs after the commencement date.
In addition to the requirements under the Amendment Act and related legislation, the ASX Corporate Governance Principles and Recommendations – 4th Edition now include a recommendation for all listed entities to have a whistleblower policy in place (with suggested contents of such a policy).

Please contact us in our Perth office on +61 8 9321 4000 or our Melbourne office on +61 3 9111 9400 if you would like assistance with reviewing or preparing a whistleblower policy or if you need further information on the changes under the Amendment Act.

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