Businesses will have to wait until next year for final confirmation of their obligations under proposed changes to Australia’s whistleblowing laws. Amendments to the Corporations Act and Taxation Administration Act1 to provide for an expanded corporate whistleblowing scheme and a new tax affairs whistleblowing scheme2 passed the Senate, but did not pass the House of Representatives before Parliament adjourned for 2018.
Parliament will resume sitting on 12 February 2019. If the Bill passes during the first sittings of Parliament, the expanded regime will commence on 1 July 2019. Once the Act commences, public companies and large proprietary companies3 will then have 6 months to implement a compliant whistleblowing policy. It is unlikely that existing whistleblowing policies will comply with the proposed legislative requirements.
The Senate made some amendments to the Bill, including:
- the group of persons who are eligible to receive disclosures has been narrowed, by removing supervisors and managers of employees from the list of eligible recipients;
- disclosures about personal work-related grievances will only be protected in limited circumstances;
- whistleblowers will be able to make emergency disclosures and public interest disclosures to journalists and parliamentarians, in certain defined circumstances; and
- changes to the provisions regarding victimisation (now termed detrimental conduct), to strengthen the protections available to whistleblowers.
There remains a possibility that we may see further changes to the Bill once it is debated in the House of Representatives.
Businesses now have more time to plan for the expanded regime. Businesses who are covered by the current Corporations Act scheme however cannot afford to be complacent in this transition phase, and must continue to ensure that whistleblower disclosures are managed appropriately in accordance with the current laws. The increased criminal and civil penalties will apply to detrimental conduct that occurs after commencement of the amendments, even if the disclosure occurred before the commencement date.
In anticipation of the changes to whistleblower legislation in Australia, we have designed high-value packages to assist companies in updating their existing policy or in implementing a compliant policy and whistleblowing process.
Our packages include user-friendly and cyber-secure technology supported by our investigation and regulatory expertise. Most importantly, our legal advice in relation to your whistleblower protection regime is covered by legal professional privilege, minimising risk to organisations and their directors. You can download the brochure or calculate your compliance costs here.
The amending legislation is the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill.
The changes to the Taxation Administration Act will enable disclosures to be made about misconduct and improper conduct in relation to tax affairs of all kinds of legal persons, including sole traders, companies, partnerships, body politics, any other unincorporated association or body of persons, trusts, superannuation funds, and approved deposit funds.
Proprietary companies that are trustees of a registrable superannuation entity will also need to have a policy.