In Australia, a whistleblower in the private sector is entitled to make anonymous disclosures and be protected from any detrimental conduct resulting from that disclosure where they divulge information in accordance with applicable legislation.
Whistleblowing is governed by a range of statutory instruments, including for example the Corporations Act 2001 (Cth), Australian Securities and Investment Commission Act 2001 (Cth), Taxation Administration Act 1953 (Cth) and other regimes governing superannuation, insurance and banking. While not expressly addressed in the Fair Work Act 2009 (Cth), an employee has a workplace right to make a complaint or inquiry in relation to their employment.
Employees, suppliers, contractors, officers (both current and former) and their respective family members can make a protected disclosure as a whistleblower.
Protected disclosures include:
Significantly, “personal work-related grievances”, defined as decisions made by an employer that relate to the engagement, transfer, promotion, terms and conditions, disciplining, suspension or termination of engagementbare not protected disclosures (subject to exceptions). Disclosures pertaining to tax matters are governed by a separate regime.
A whistleblower may make a protected disclosure where they have "reasonable grounds to suspect" wrongdoing. The onus is on the whistleblower to identify evidence that suggests a real possibility that detriment has occurred before the claim can proceed. Where it does proceed, the onus is reversed and the organisation must demonstrate that the conduct was taken for some other reason.
A whistleblower may make a protected disclosure to ASIC, APRA, officers and senior managers, auditors or other persons authorised to receive disclosures. Employers should ensure that eligible recipients receive appropriate training with respect to protected disclosures to ensure they manage the disclosure in accordance with applicable legislation.
Where the disclosure is in the public interest, it may be made to parliamentarians or journalists. This is in addition to emergency disclosures which must be based on substantial and imminent danger to a person’s health and safety or the natural environment.
Unauthorised disclosure of a whistleblower’s identity may result in a fine of up to $1,050,000 for an individual and $10,500,000 for a company. The taking of reasonable precautions and the exercise of due diligence are no longer defences to an employer’s vicarious liability for the detrimental conduct of its employees against a whistleblower. These matters may however be relevant to a court when ordering compensation.
As of 1 January 2020, proprietary companies, public companies, and trustees of some superannuation funds must implement a whistleblower policy which must be made available to officers and employees.
We can assist in preparing whistleblower policies, responding to whistleblower complaints and implementing back-end training and processes.
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