The Federal Government introduced the Treasury Laws Amendment (Enhancing Whistleblower Protection) Bill 2018 on 7 December 2017, with the aim of creating a single regime to protect whistleblowers in the corporate, credit and financial sectors. It also creates a new regime for whistleblowers who expose tax misconduct. It has been a while since it was introduced, but on 19 February 2019 the Bill was passed, with the majority of its amendments commencing after Royal Assent.
The new provisions amend and extend section 1317AA of the Corporations Act 2011 (Cth), providing a more comprehensive regime. The key provisions broadened are:
The conduct that qualifies for disclosure and the entities about which it can be made – now includes conduct representing a danger to the public or the financial system.
Individuals who can make a qualified disclosure – includes a broader group including relatives of employees and former employees. Motivations are no longer relevant with the removal of the good faith requirement, provided the discloser has reasonable grounds to suspect misconduct has occurred.
Eligible recipients of a disclosure –officers or senior managers of related companies of an employee, and in some cases members of parliament or journalists.
Increased confidentiality, protection and remedies for whistleblowers – anonymity for disclosers will now be protected.
The Bill repeals the current whistleblower protection regimes which exist in the Banking Act 1959 (Cth), Insurance Act 1973 (Cth), Life Insurance Act 1973 (Cth), and the Superannuation Industry (Supervision) Act 1993 (Cth).
The Bill also proposes a new tax whistleblower regime in the Taxation Administration Act 1953. The regime will broadly be consistent with the regime contained in the Corporations Act 2011 (Cth) but will relate to the protection of those individuals who report breaches or suspected breaches of tax misconduct.
Public and large proprietary companies will now need to have whistleblower policies in place.
Cowell Clarke will be happy to assist clients with preparing whistleblower policies, or updating current policies to comply with the new regime.