Australia’s updated whistleblower laws have put in place stringent protections for corporate and financial sector whistleblowers, strengthening the framework for individuals to disclose corporate misconduct.
Protections implemented in 2020 include strengthened confidentiality requirements of a whistleblower’s identity and prohibitions against reprisals against the whistleblower, with businesses facing large penalties where these requirements are not met.
The changes have resulted in a tenfold increase, based on our Australian experience, in whistleblower reports which result in internal investigations for businesses operating down under.
Broad protections for whistleblowers and strict whistleblower policy requirements
In Australia, all public companies, large proprietary companies, and certain corporate trustees must now maintain whistleblowing policies that comply with Australia’s whistleblower protection laws. For these businesses, the whistleblower policy requirements are stringent and go far beyond what is currently required in most other developed countries. We outline those requirements in this concise guide.
Global businesses need to consider how best to meet Australia’s whistleblower policy requirements in the context of their global whistleblower programs. Many businesses have taken steps to insert an Australian-specific whistleblower policy as a stand-alone document or annex to their global policies.
Businesses that are not required to have a policy (normally small operations with a turnover under $50 million) should not be complacent nor take the view that Australia’s whistleblower laws do not apply to them. All business operating in Australia, regardless of size, are still to ensure whistleblowers are treated in accordance with the new protections. While not required to have a whistleblower policy, these businesses should ensure that they have frameworks in place to enable them to respond to whistleblower complaints in an appropriate and compliant manner. Breaches of the whistleblowing laws can result in reputational harm and hefty fines – and, in some cases, there are also custodial penalties. Further details on the protections are outlined in our earlier update here.
Since the introduction of these whistleblower protection laws, there has been a significant uptick in whistleblower reports to businesses operating in Australia. Our team in Australia has seen an increase in the need for businesses to conduct internal investigations into allegations made under this new regime.
Similarly, the key Australian companies regulator, ASIC, has noted in its report for the 2019-2020 financial year that there were 644 disclosures under the whistleblowing laws in that period. According to ASIC, this was “a significant increase compared to previous years.” ASIC is yet to release their annual report for the financial year just passed.
If you have Australian operations: action steps
Organizations that already have a “global” whistleblowing policy must ensure their policy meets the prescriptive requirements of the Australian whistleblowing laws. If your business is yet to consider whether it needs to implement any of the above measures, it should do so as soon as possible.
We also recommend that all businesses operating in Australia consider whether to implement, and train their employees in, a whistleblowing policy that meets the requirements of the whistleblowing laws.
DLA Piper has a range of experience in advising on the whistleblowing laws. Our team has helped businesses in Australia and across the globe draft and update their internal whistleblowing policies, deliver appropriate training to their staff and investigate whistleblowing complaints. Please contact any of the authors if you would like to know more about how we can help your business comply with Australia’s whistleblowing laws.
 ASIC’s annual report for the 2019-2020 financial year.