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Whistleblower protection bill introduced

Posted on : Monday, 8 January 2018

The Federal Government has introduced a new bill to upgrade whistleblower protection in the private sector to parity with that in the public sector.


A draft of the Bill, the Treasury Laws Amendment (Enhancing Whistleblowers Protections) Bill 2017, was released for commentary late last year. That followed a report on whistleblower protections put out by the Parliamentary Joint Committee on Corporations and Financial Services' in September 2017.


The Bill is now before Parliament, and if passed will apply to whistleblower disclosures made on or after 1 July 2018.


Summary of the Bill


The Bill makes amendments to two major statutes: the Corporations Act 2001 (Cth) and the Taxation Administration Act 1953 (Cth), as well as a number of other laws.


The Bill then provides a number of changes to private sector protections, including:


  • Protection from liability - eligible whistleblowers (s. 1317AAA): eligible whistleblowers must be or have been an employee, officer or associate of a regulated entity or be an individual who supplies goods or services to a regulated entity (or be an employee of such an individual) or be a relative or dependent of someone in any of the above categories.


  • Regulated Entities (s. 1317AAB) - a company, corporation, and ADI (within the meaning of the Banking Act); a general insurer (Insurance Act); a life company; a superannuation entity or trust and entities covered by the Corporations Act; the Life Insurance Act; the Superannuation Industry (Supervision) Act; the national Consumer Credit Protection Act; and the Financial Sector (Collection of Data) Act.


  • Emergency Disclosures (s.1317AAD) - the previous concept of 'whistleblower third party disclosures' has been replaced with 'emergency disclosures' which permit whistleblowers who have previously made disclosures to make an immediate disclosure to a federal or state parliamentarian or journalist in circumstances where the whistleblower has reasonable grounds to believe that 'there is an imminent risk of serious harm or danger to public health or safety or to the financial system'.


  • Journalist - s. 1317AAD (2) - means a person who is working in a professional capacity as a journalist for a newspaper or magazine; a radio or TV broadcasting service; an electronic service (e.g., a service provided through the internet); is operated on a commercial basis.


  • Compensation regime (s.1317 AE) - to include remedies such as monetary compensation; injunctions; orders to apologies; and reinstatement of dismissed employee(s).


  • Whistleblower policies (s. 1317I) - polices will be required to ensure protection of whistleblowers which include consideration of protections that are available; persons to who disclosures can be made; company support mechanisms; investigation processes; ensuring fair treatment of whistleblowers; availability of the policy.


Two areas that are not covered by the Bill, but which may emerge from the debate:


  • Harmonisation of whistleblower protections into one Act (Recommendation 3.1 of Report);


  • Introduction of a Whistleblower Protection Authority (Recommendations 12.1, 12.2, 12.7 and 12.8).