We have previously reported on the new whistleblower protection laws which came into operation on 1 July 2019 through the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth).
In the Second Reading Speech for the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017 (Cth) it was stated that:
“… these reforms will help protect whistleblowers who often expose themselves to significant personal and financial risk in order to help play a critical role in the early detection and prosecution of corporate or tax misconduct.”
It was also stated that an aim of the reforms was to “improve practices within Australian businesses” given that there is a “significantly higher likelihood that misconduct will be reported”.
From 1 July 2019 the new laws require that certain organisations implement whistleblowing policies. The organisations that must implement whistleblowing policies are:
A company is considered a large proprietary company if it satisfies at least two of the following criteria, set out in Section 45A(3) of the Corporations Act 2001 (Cth):
The matters that a whistleblower policy must address are:
Since the Act has come into effect a number of organisations have implemented and published their whistleblower policies. Some examples are Commbank, nib health funds and ANMF.
Businesses that are required to have a whistleblower policy ought to consider ensuring appropriate resources and policies are also in place to encourage internal reporting and allow the business to remedy the issue before it becomes a regulatory problem.
It is also important to understand that the Work Health and Safety Act 2012 (SA) (“WHS Act”) lists a variety of matters that need to be addressed with respect to work health and safety, and so it is important that any whistleblower policy aligns with the due diligence obligations in Section 27 of the WHS Act. Section 27 of the WHS Act requires officers of entities conducting a business or undertaking to exercise due diligence to ensure that the person conducting the business or undertaking complies with any duties and obligations under the WHS Act, and this includes them taking reasonable steps:
Affected businesses should strive to create a culture that embraces the whistleblower protections and encourages employees to report any concerns internally as a first point of call. Not only is this likely to result in a better organisational culture in general, it may in turn lead to fewer matters that need to be reported in the first place as employees self-regulate any dishonest, illegal, and/or unethical behaviour in an environment which encourages reporting.
Regardless of the size of your organisation, we recommend that you contact us to discuss whether your organisation needs a whistleblower policy and if you need any assistance in developing your own policies. If you don’t have a whistleblower policy then now is the time to put one in place.
Patrick Walsh
Director
p. +61 8 8124 1941
e. Email me
This communication provides general information which is current as at the time of production. The information contained in this communication does not constitute advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information. Should you wish to discuss any matter raised in this alert, or what it means for you, your business or your clients' businesses, please feel free to contact us.