The Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 was given Royal Assent on 12 March 2019 and will commence on 1 July 2019.
The Act creates a single whistleblower protection regime in Part 9.4AAA of the Corporations Act 2001 to cover the corporate, financial and credit sectors, and create a new whistleblower protection regime in the taxation law, to protect those who expose tax misconduct. It replaces the existing whistleblower laws administered by APRA in the Banking Act, the Insurance Act, the Life Insurance Act and the Superannuation Industry (Supervision) Act and also applies to entities regulated by the National Consumer Credit Protection Act and the Financial Sector (Collection of Data) Act. Background.
The Act applies in relation to whistleblower disclosures made on or after commencement, including disclosures about events occurring before this date.
The amendments also apply to the victimisation of whistleblowers after commencement, and to a whistleblower’s right to compensation and other remedies, in relation to disclosures that have been made prior to that date.
UPDATE: To provide guidance to whistleblowers on their rights and protections and how ASIC handles their reports, ASIC has issued two information sheets:
- Information Sheet 238 Whistleblower rights and protections (INFO 238);
- Information Sheet 239 How ASIC handles whistleblower reports (INFO 239).
Whistleblower Policy
Section 1317AI requires public companies, large proprietary companies and proprietary companies that are trustees of registrable superannuation entities to have a whistleblower policy and make that policy available to officers and employees.
Under section 45A of the Corporations Act, a proprietary company is defined as large for a financial year if it satisfies at least two of the following paragraphs:
• the consolidated revenue for the financial year of the company and any entities it controls is $25 million or more
• the value of the consolidated gross assets at the end of the financial year of the company and any entities it controls is $12.5 million or more, and
• the company and any entities it controls have 50 or more employees at the end of the financial year.
The whistleblower policy must set out information about:
• the protections available to whistleblowers;
• how and to whom an individual can make a disclosure;
• how the company will support and protect whistleblowers;
• how investigations into a disclosure will proceed;
• how the company will ensure the fair treatment of employees who are mentioned in whistleblower disclosures;
• how the policy will be made available to officers and employees of the company.
Companies that already have whistleblower policies in place will need to update them to address changes in the law.
Failure to comply with the requirement to have and make available a whistleblower policy is an offence of strict liability with a penalty of 60 penalty units (currently $12,600).
Transition
To allow sufficient time for public companies, large proprietary companies, and registrable superannuation entities to comply with the requirement to have a compliant whistleblowing policy, the requirement will apply from 1 January 2020, and no later than six months after a proprietary company first becomes a large proprietary company.
