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The Whistleblowing Obligations

Whistle-blowing amendments have finally been enshrined into law.

This is the tweet from Professor AJ Brown, from Griffith University, who played a major role in whistle-blowing reforms by spearheading the Whistling While They Work project:

And Australia's new Corps Act whistleblower protections are law! Yes more to be done, but a huge step and breakthrough for stronger compensation rights, the duty to support & protect, & public interest disclosure @TIAustralia @FiMcLeodSC thankyou @KellyODwyer & @Senator_Patrick

Professor Brown published the tweet after the amendment passed both Houses of Parliament on Tuesday afternoon.

Later on, Transparency International Chair, Fiona Mcleod, tweeted:

today’s the day for #whistleblower amendments to pass. Thx @MakeMayoMatter for shout out to Jeff Morris #BankingRC who was brave enough to speak out, leading to over $50 million compensation to victims of poor financial advice, @ajbrownAus & @TIAustralia #auspol @ClareONeilMP

The Bill amendments, introduced to the Senate for the first time in December of 2017, will go a long way towards forcing organisations to reconsider their own approach to culture.

Last year, GRC Professional spoke to Denis Gentilin, former whistle-blower and Founder of the Human Systems Advisory. Gentilin not only stressed the importance of organisations having the right culture, but addressed the importance of risk and compliance having a reliable baseline to measure culture within their organisation.

“It is really a matter of executives and boards getting comfortable with these issues and recognising that, in any organisation, if you measure and create a proper baseline, you will always find issues and you must be prepared to face what you find in order to make the necessary changes.”

What will the new changes mean?

GRC Professional caught up with Nathan Luker, General Manager of YourCall, a provider of whistle-blowing solutions. According to Luker, the passing of the amendments is an important step because protections have been lacking in the past.

With corporate culture being one of the major challenges highlighted in the Hayne Royal Commission report, the question is whether these new protections will make a difference?

“Yes,” believes Luker. “Compliance is no longer an option. Clear obligations are imposed on organisations. A timeframe is set. There are increased penalties—up to $200,000 for an individual and $1 million for a body corporate for breaching the legislation. It will be difficult, if not impossible, to fake compliance with the new legislation. The leadership, officers and employees alike must get behind it. Whilst directly regulating only listed and large private companies, smaller and government organisations will also need to be mindful of the benchmarks set by these new whistle-blower legislation requirements.”

Luker said the new legislation includes:

  • That whistle-blowers no longer have to provide their identity to be eligible for protection;

  • Heavy penalties for disclosing the identity of a whistle-blower without their consent;

  • A provision to make it easier for whistle-blowers to seek redress and compensation for victimisation;

  • Strengthened immunities for whistle-blowers; and

  • Expanded orders that may be made by a court in favour of a person who has suffered loss, damage, or injury as a result of detrimental conduct.

Updated: 21 February 2019

Days after the release passage of the legislation of the two houses was announced the Australian Securities and Investment Commission (ASIC) welcomed the new reforms.

And that the corporation’s regulator’s Office of the Whistleblower will have a major role implementing the reforms which will commence from July 1st of this year.

In official statement from ASIC the executive Director Warren Day said, “These reforms will help ASIC to perform our important regulatory role by encouraging people who have observed misconduct to come forward. They complement the measures we have put in place since 2014 to improve our processes for assessing whistleblower reports and communicating with whistleblowers during our inquiries.”

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