Michael Sim
New whistleblower protections expand who is protected and what they can disclose. This regime applies to regulated companies and financial service providers including banks, life companies, general insurers and superannuation funds.
More people are now protected whistleblowers
The new regime came into force on 1 July 2019 and creates the concept of an ‘eligible whistleblower’. This expands who can make a protected disclosure.
Under the old regime, just your current employees, officers and contractors were protected. Now protected disclosures can be made by your current and former:
- Employees;
- Officers;
- Contractors or suppliers (whether they were paid or not);
- Employees of contractors or suppliers; and
- Even a spouse or relative of any of the above. Yes, you read that correctly.
If a person qualifies as an eligible whistleblower, their motivation for making a protected disclosure isn’t relevant. An eligible whistleblower just needs to meet the requirements for the type of disclosure they are making.
More types of disclosures can be made
The type of disclosures that can be made by whistleblowers has been expanded to include:
- Ordinary disclosure: Where the whistleblower has reasonable grounds to suspect the information concerns misconduct or an improper state of affairs or circumstances about the organisation or a related company;
- Public interest disclosure: Where the whistleblower believes it’s in the public interest to tell the press or a member of parliament. They can do this if they have reasonable grounds to believe that no action has been taken to address the issues in an ordinary disclosure within 90 days; and
- Emergency disclosure: If the whistleblower has reasonable grounds to believe that the information concerns a substantial and imminent danger to the health or safety of someone or to the natural environment.
Protected disclosures can be made to a wide range of people
Protected disclosures can now be made to:
- ASIC, APRA, and other prescribed Commonwealth authorities;
- Officers or senior managers of the organisation or related companies;
- Auditors or actuaries of the organisation or related companies; or
- People authorised by the organisation to receive disclosures. This may include a hotline or a lawyer in certain circumstances.
There are more protections for whistleblowers
Whistleblowers also have more protections including:
- Anonymity;
- Immunity against being prosecuted; and
- Any detriment caused by victimisation.
Anyone who breaches these protections may face substantial civil or criminal penalties.
If you’re a public or large proprietary company, you’ll need to develop and implement a whistleblower policy by 1 January 2020. ASIC is currently getting feedback on its draft Consultation Paper CP 321 which provides guidance for whistleblower policies.
If you haven’t done so already, you’ll also need to think about what changes you need to make to your governance, risk and compliance framework for this new whistleblower regime.
By Michele Levine, Senior Associate, and Michael Sim, Lawyer