The Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2018 recently passed both houses of the Commonwealth Parliament. The Bill significantly expands the protections available to whistleblowers in the Australian private sector. The Bill passed against the backdrop of heightened tensions between corporate Australia and consumers like the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, and the Commissioner of Taxation’s commitment to collecting “extra” tax revenue from multinationals, large corporations and wealthy individuals over the last two years.
Accordingly, the Bill appears to focus on corporate and taxation whistleblowing, and does so by amending the Corporations Act 2001 (Cth) and Taxation Administration Act 1953 (Cth). Specifically, the highlights of the Bill include the following:
- The Corporations Act will now impose an obligation on public companies and large proprietary companies to introduce a whistleblower policy which complies with certain criteria listed in section 1317AI which is to be inserted into the Corporations Act.
- The Bill outlines a long list of whistleblowers eligible for protection under the Bill, including employees and former employees.
- Neither the Bill nor its Explanatory Memorandum suggest that the Commissioner is prohibited from adducing evidence in Part IVC proceedings which were obtained following a disclosure which is protected under the Bill.
- While the Bill seeks to protect the identity of the disclosing party and information which could identify them, the Bill does allow courts and tribunals to identify the disclosing party where it is in the interests of justice to do so.
- Otherwise, disclosing the identity of the whistleblower is a criminal offence.
- The Bill does not expressly reward or incentivise whistleblowing. However, the Bill does significantly improve access to compensation for victim whistleblowers. The Bill achieves this in part by defining ‘detriment’ broadly for the purposes of the compensation regime for victim whistleblowers. In fact, detriment may include dismissal/termination from employment or contract, damaged reputation, alteration of position, psychological harm and damage to financial position. Moreover, the Bill is silent on the calculation of compensation.
- There are no adverse cost consequences for compensation claims except in the case of vexatious claims.
- Disclosures relating to personal work-related grievances are not protected under the Bill.
- The new section 14ZZX of the TAA protects whistleblowers from civil, criminal or administrative liability for making the disclosure. Furthermore, no contractual or other remedy may be enforced under this provision protecting disclosers despite a contractual duty to maintain confidentiality. This means that an affected taxpayer cannot try to enforce a contractual or equitable obligation of confidence owed by its whistleblowing employees or contractors etc.
Please contact our office if you have any questions about the Bill including your obligations under the Bill as a public company or large proprietary company or eligibility for protection under the Bill as a whistleblower.