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Whistleblower Bill passed through the Senate

On 6 December, amendments to the Corporations Act to improve whistle-blower provisions were successfully passed through the upper house.

During the presentations being made on the Bill, several references were made to the conduct that had been brought to light by the recently-completed Royal Commission.

The Bill adds new protections to two different acts—the Corporations Act, and the Taxation Administration Act.

Jane Hume, Deputy Government Whip in the Senate, said that the current private sector whistleblower laws were fragmented and that current civil remedies are ‘extraordinarily limited’, with claimants are exposed to legal cost risks.

She added that reprisals against whistleblowers have rarely been prosecuted.

“Companies have been practically prohibited from undertaking investigations because they could not share information related to the disclosures, regardless of whether they have identified the whistleblower or have not,” she said.

Hume said anonymous disclosures were not allowed, and neither were emergency disclosures to the media or to parliamentarians.

She then listed how the Bill has strengthened whistleblowing protections:

  • Expanding protections to a much broader class of people

  • Expanding the types of disclosures that will be protected under the framework

  • Allowing for emergency disclosures to parliamentarians and the media in certain circumstances, but only if certain circumstances and preconditions are satisfied

  • And it will be easier for the whistleblower to seek redress for detriment and for damage

  • Including new civil penalties that will make enforcement acti

on easier, and increased criminal penalties

  • Requiring all large companies to have a whistleblower policy, with penalties for failing to do so.

Hume added that there are also added protections in the tax regime; however, the scope is limited to tax affairs.

Senator Rex Patrick, of South Australia, said that this Bill presents a significant leap in protecting whistleblowers and sets ‘a world benchmark in many areas’.

“It will also give Australians confidence that, with the help of conscientious employees, the type of disgraceful conduct we’ve seen in the corporate sector that has been flushed out in this Royal Commission into Misconduct in the Banking, Superannuation and Financial Services industries will become a thing of the past.”

Senator Patrick still said that there needed to be a single bill for the private sector that should include a reward scheme for whistleblowers, as well as the establishment of an independent whistleblower authority.

Much Improved Amendments!

Professor AJ Brown from the Centre of Governance and Public Policy celebrated the Bill’s passing through the Senate on Twitter: “Corporate whistleblowing bill passes the Senate with much-improved amendments! Now for the House???”

Brown wrote in The Australian earlier last week that:

Now, companies face the world’s first-ever requirement to not simply have a policy ‘on paper’, but spell out exactly how they plan to “support and protect” those who speak up, before anyone starts taking out reprisals.

Again, it’s a huge, culture-changing step. Many companies are quite good at getting their employees to reveal wrongdoing, so they can deal with it themselves. Where they fall down is in making sure their people don’t come off second-best, or worse, as a result.

Companies will need to implement the new requirement into their organisations some time in early 2019.

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