Recommended reform to Australian whistleblower protections

Regulatory Update

By:

After public hearings and considering submissions and responses to questions on notice, the Parliamentary Joint Committee on Corporations and Financial Services (the Committee) last night published its report on Whistleblower Protections, available in full here (the Report).   

The Committee has recommended a number of substantial changes to private sector whistleblowing laws. Key proposals include:

  • Consolidating all Commonwealth private sector whistleblowing legislative protections into a single Act, and harmonising whistleblowing legislation across the Commonwealth, states and territories.
  • Expanding the definition of reportable wrongdoing, including to cover a contravention of any Commonwealth, state or territory law.
  • A broader definition of whistleblowers than currently exists in the Corporations Act, extending protections to former as well as current staff, contractors and volunteers.
  • Rewards for whistleblowers, calculated as a proportion of any penalty imposed against the whistleblower's employer for the reported wrongdoing. Rewards would be determined by the Court or other body imposing the penalty.
  • Replacing the current requirement that a whistleblower be acting in 'good faith' in order to receive protection, with a requirement that the whistleblower have a reasonable belief of the existence of disclosable conduct in order to receive protections.  
  • Protecting the confidentiality of disclosures and extending protection to anonymous disclosures.
  • Extending protections to disclosures to a Federal Member of Parliament or the media in limited circumstances and where disclosures to regulators have not been actioned after a reasonable period of time.
  • Overriding confidentiality clauses in employer-employee settlements that would otherwise prevent protected whistleblower disclosures.
  • Aligning protections, remedies and sanctions for reprisal with those contained in the Fair Work (Registered Organisations) Act 2009.
  • Establishing a Whistleblower Protection Authority that can support whistleblowers, assess whistleblowing allegations, investigate reprisals, set standards for internal disclosure procedures in the private sector and perform other functions.
  • Ensuring that regulators who receive protected whistleblower disclosures regularly update the whistleblower on whether the allegations are being pursued (but not provide the whistleblower information that would prejudice an investigation).
We'll be publishing a more detailed briefing note on the Report shortly. If you'd like our assistance in assessing how these potential reforms could impact you, please contact Rani John or William Thompson.