Disclaimer: Please note the below is not intended to be, nor does it constitute, legal advice. You should seek legal advice from a lawyer (whether barrister or solicitor) working in the area of whistle-blower law, employment law and/or with direct experience as a whistleblower barrister or whistleblower lawyer before acting or relying on any of its content.
Are you a whistleblower, or a prospective whistleblower?
Need to understand your rights, protections and obligations as a whistleblower?
If the answer to these questions is yes, then it is important for you to be aware that new whistleblower legislation commenced on 1 July 2019.
Whistleblowers can be crucial to discovering, uncovering and or calling out misconduct and harm to the public. The Corporations Act 2001 ('Corporations Act') gives certain people legal rights and protections as whistleblowers.
The Corporations Act tries to protect whistleblowers who, when reporting alleged misconduct or other concerning behaviour, can find themselves in very difficult, stressful and emotional situations.
Am I a whistleblower?
In order to be classified as an ‘eligible whistleblower’ under the Corporations Act you need to demonstrate a connection to a company or organisation in question. The protections can also extend to the spouses and relatives of eligible whistleblowers.
Whistleblowers can provide their particulars such as their name and contact details when they report and/or make disclosures anonymously.
There are a number of really helpful Australian Securities and Investments Commission (ASIC) worksheets that set out the criteria for protection as a whistleblower. If you get a moment you should have a look at these. In particular, not all whistleblowing is covered or protected under legislation and so before you make a decision to make disclosures you should seek professional legal advice.
The Corporations Act protects you if you make a whistleblower report internally within the company or organisation or externally to the company's or organisation's auditor, actuary, or authorised whistleblower complaints service or hotline, as well as to ASIC or APRA as regulators.
The protections can also apply to you if you make a whistleblower report to a journalist or a member of the Commonwealth Parliament or a state or territory parliament (or parliamentarian). However, this is only in certain limited circumstances, namely where the report or disclosure deals with matters in the public interest, or deals with reports of emergencies. If you disclose your concerns to the public in another way, these protections do not apply and so again it is important to seek legal advice as to whether your complaint or concern constitutes a public interest disclosure or emergency, as defined.
People sometimes confuse a personal workplace issue, dispute or grievance with the right to make a protected whistleblower report. An individual needs to be careful here as the whistleblower protections set out in this article do not cover a report of misconduct solely about your personal work-related grievance. A personal workplace grievance could include having a personality clash with a colleague, reasonable management action in relation to your performance and/or employment conditions, or a decision to discipline you for workplace misconduct that does not raise broader systemic issues.
Of course, that does not mean that other legal remedies are not available to you. It may be the case that you have rights and protections under employment, workplace bullying, human rights, anti-discrimination or contract law. But again, you really should seek legal advice!
What happens if people take action against you, or seek to punish you (sometimes called a whistleblower reprisal), or otherwise cause or threaten detriment toward you?
It is a criminal offence for someone to cause or threaten detriment to you because they believe or suspect that you have made, or may make a whistleblower report or disclosure.
The criminal offence and civil penalty apply even if you have not made a whistleblower report, but the offender causes or threatens detriment to you because they believe or suspect you have or might make a report.
Detriment is broadly defined and contemplates such things as suspending you from your employment, workplace dismissal, workplace injury (whether physical or psychological), placing you on reduced duties, workplace discrimination, causing damage to your professional reputation etc.
In certain circumstances, compensation may also be available.
The legislation mandates that public companies and large proprietary companies MUST have in place a compliant whistleblower policy by 1 January 2020.
A “large proprietary company” is defined as satisfying two of the following three criteria:
$50+ million in consolidated revenue
$25+ million or more in consolidated gross assets
100 or more employees
The policy must contain:
the protections available to whistleblowers pursuant to the legislation
to whom an individual can make a disclosure and the way in which they can go about it
how the company will support whistleblowers and protect them from detriment
the company’s investigative procedures for legitimate disclosures made under the legislation
how the company will ensure fair treatment of employees who are mentioned in whistleblower disclosures, and
the steps the company will take to promulgate the policy.
Fines of up to $12,600 can apply for non-compliance with the mandatory policy requirement (which continues to apply for each year that this requirement is not met).
Further, with the strengthening of protections towards employees as well as the possibility of a criminal offence with a civil penalty, organisations who are the subject of a whistleblower report, complaint or disclosure are encouraged to seek legal advice as a matter of urgency so that the matter can be handled promptly and effectively.
Sebastian De Brennan