The government will move to address a key flaw in Australia's whistleblower protection framework in landmark changes unveiled by Minister for Revenue and Financial Services Kelly O'Dwyer that will take Australia close to world's best practice.
In recent years, the Commonwealth significantly strengthened protection for public service whistleblowers in a process led by Labor's Mark Dreyfus, but protection for private sector whistleblowers have been poor and fragmented, as a 2014 international survey showed. Now O'Dwyer has released for comment a new set of protections for corporate whistleblowers that represents a huge improvement on existing protections. The Treasury Laws Amendment (Whistleblowers) Bill 2017 will, if enacted in its current form, will
- for the first time, provide a consistent framework for corporate whistleblowers no matter in which industry they work
- expand the definition of protected whistleblower to encompass former staff, directors, contractors and their staff, and whistleblowers' families
- significantly expands the scope of conduct that can be disclosable from its current narrow definition;
- replaces a "good faith" test for whistleblowers with a test about possession of a "reasonable suspicion"
- drastically expands the prohibition on revealing the identity of a whistleblower, and removes circumstances where disclosure is required, such as in court. There will be a new civil offence of disclosing a whistleblower’s identity with a maximum penalty of $200,000 for an individual and $1 million for a corporation.
- large companies will be required to have a disclosure policy
- existing prohibitions on reprisals will be revamped and compensation for reprisal made easier to obtain;
- the list of bodies and people to whom a protected disclosure can be made will be expanded to include not just regulators and auditors but officers of a company, senior managers, lawyers and, potentially, a designated independent disclosure entity such as "a person authorised by the body corporate to receive disclosures that may qualify for protection."
The bill also provides a framework for going to the media or a politician, when "wrongdoing may be of such gravity and urgency that disclosure to the media or a parliamentarian is justified." The whistleblower must have approached a regulator with the information and waited "a reasonable period" and (crucially), the whistleblower must have "reasonable grounds to believe that there is an imminent risk of serious harm or danger to public health or safety, or to the financial system, if the information is not acted on immediately." But the disclosure can't be on social media or to a blogger -- it must be to a journalist or parliamentarian.