Legislation update

Whistleblower reforms now a reality

By Andrew Tobin and Michelle Eastwell / 01 July 2019

Key issues:

  • The new Federal whistleblower regime has taken effect as of 1 July 2019.
  • The Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth) (Act) marks a major change in how Australian businesses are to deal with whistleblowing.  
  • It is important that companies, who are yet to do so, get on the front foot to address these changes. A failure to implement proper policies and procedures that are adapted for your business could have serious consequences down the line.

The new Federal whistleblower regime has taken effect as of 1 July 2019.  As we have previously reported here and here, the Act marks a major change in how Australian businesses are to deal with whistleblowing. Businesses should not underestimate the scale and potential impact of these changes. 

The Act primarily does two things:  

  1. It affords greater protection to whistleblowers by broadening the scope of confidentiality, protections and remedies available to them. It creates whole new classes of both potential whistleblowers and people to whom a complaint may be made (including, in certain circumstances, members of the press or parliament).  At the same time, it removes the obligation to make a disclosure in ‘good faith’.  These changes are significant and now in effect. 
  2. It requires large proprietary and public companies to have, and publish, a compliant whistleblower policy. Failure to do so can incur penalties. This obligation does not commence until 1 January 2020. We anticipate that most existing whistleblower policies will not comply with the Act. As such, companies should carefully review their policy and processes for dealing with whistleblower complaints at the earliest opportunity. After all, potential whistleblowers currently enjoy the added protections afforded to them under the Act which commenced on 1 July 2019, notwithstanding that there will be no offence committed for failing to have a compliant whistleblower policy in place until 1 January 2020.  

The new regime has been a long time coming. Still, it is important that companies who are yet to do so get on the front foot to address these changes. A failure to implement proper policies and procedures that are adapted for your business could have serious consequences down the line. If a claim is made by an aggrieved whistleblower, the existence (or lack thereof) of appropriate policies and processes will likely be a matter of judicial scrutiny. 

In implementing policies and procedures, businesses should consider who they designate to receive whistleblower complaints, whether investigations will be conducted internally or externally and whether steps should be taken to ensure legal professional privilege attaches to any resulting investigation report. Training senior managers in how to respond to a whistleblower complaint is equally important.

If you require advice in relation to your obligations under the whistleblower protection regime or assistance with preparing a whistleblower policy, please contact HopgoodGanim Lawyers’ Corporate Advisory and Governance or Workplace and Employment teams. 

Authors
Andrew Tobin
Partner
Andrew is a Partner and the head of HopgoodGanim Lawyers’ Workplace and Employment practice.
Michelle Eastwell
Partner
Michelle is a Partner in our Corporate practice with extensive experience in mergers and acquisitions, capital markets transactions and alternative fund raisings including equity crowd funding.
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