Enhanced Whistleblower Protections

The Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2019 (Cth) (Whistleblower Bill) was passed by Parliament, and generally takes effect from the first 1 January, 1 April, 1 July or 1 October to occur three months after the Bill receives Royal Assent. This could be as early as 1 July 2019.  It will impose significant, and we think, insufficiently appreciated compliance burdens, which we address below.

In 2018, the Bill was considered by the Senate Economics Committee and some changes were proposed, which have made their way through to the Bill. The Whistleblower Bill:

  • harmonises the various current whistleblower regimes under federal law;
  • expands the existing protections and remedies for whistleblowers; and
  • creates a whistleblower regime for tax-related misconduct and contraventions and include Human Rights Commission violations for Discrimination, Bulling and Sexual Harassment.

The amendments will apply to disclosures made on or commencement, and that relate to matters that occur or occurred before, on or after commencement.  Notably, some parts of the Whistleblower Bill (including matters relating to compensation and remedies) will apply retrospectively to disclosures that were made prior to commencement, so long as the disclosure was such that it would have been protected had the Whistleblower Bill been in force at the time.

[1] Corporations Act 2001 (Cth) s 1644(1), introduced by the Whistleblower Bill s 12.

[2] Corporations Act 2001 (Cth) s 1644(2), introduced by the Whistleblower Bill s 12.

[3] Corporations Act 2001 (Cth) s 1317AI(1), introduced by the Whistleblower Bill s 9.

[4] Corporations Act 2001 (Cth) s 1317AI(2), introduced by the Whistleblower Bill s 9.

A large proprietary company is currently defined in the Corporations Act 2001 (Cth) s 45A(3) as a proprietary company that satisfies at least two of the following in the financial year: (a) consolidated revenue $25 million or more; (b) gross assets of $12.5 million or more; (c) the company and any entities it controls have 50 or more employees. However, draft regulations were introduced for consideration in 2018 (Corporations Amendment (Proprietary Company Thresholds) Regulations 2018), which would double those thresholds, meaning that fewer proprietary companies would be subject to these obligations.

[5] The content as set out in Corporations Act 2001 (Cth) s 1317AI(5), introduced by the Whistleblower Bill s 9.

[6] Corporations Act 2001 (Cth) ss 1317AA and Taxation Administration Act 1953 (Cth) s 14ZZT, introduced by the Whistleblower Bill ss 2, 15.

[7] Eligible whistleblower is defined at Corporations Act 2001 (Cth) s 1317AAA and, at a high level, includes an entity’s officers, employees, contractors, associates and superannuation trustees. Also see Taxation Administration Act 1953 (Cth) s 14ZZU, introduced by the Whistleblower Bill s 15.

[8] Eligible recipient is defined at Corporations Act 2001 (Cth) s 1317AAC. Importantly, a ‘senior manager’ or ‘officer’ of a company – both concepts under the Corporations Act (section 9) – are a narrower class as compared with all employees, managers or supervisors of eligible whistleblowers. See also Taxation Administration Act 1953 (Cth) s 14ZZV, as introduced by the Whistleblower Bill s 15. This is a significant change from earlier drafts of the legislation, and should ensure that adequately responsible people have this responsibility, rather than it sitting with more junior employees.

[9] Corporations Act 2001 (Cth) ss 1317AADA, introduced by the Whistleblower Bill s 2.

[10] Corporations Act 2001 (Cth) ss 1317AAD, introduced by the Whistleblower Bill s 2.

[11] Corporations Act 2001 (Cth) ss 1317AA and Taxation Administration Act 1953 (Cth) s 14ZZT, introduced by the Whistleblower Bill ss 2, 15.

[12] Corporations Act 2001 (Cth) ss 1317AD, 1317AE and Taxation Administration Act 1953 (Cth) ss 14ZZZ, 14ZZZA, introduced by the Whistleblower Bill ss 9, 15.

[13] Ibid.
[14] Whistleblower Bill s12

[15] Corporations Act 2001 (Cth) s 1317AI, as introduced by the Whistleblower Bill ss 9, 15.