TREASURY LAWS AMENDMENT (ENHANCING WHISTLEBLOWER PROTECTIONS) Act 2018

What does this all mean?  

This new Act of Parliament will provide one comprehensively strict and tough law designed to encourage most employees – including subcontractors, across most companies in Australia, to ‘blow the whistle’ on illegal, corrupt or unethical behaviour in the workplace of any company (regulated entity).

A major component of this new law are strong protections for whistle-blowers, including tough penalties for anyone compromising or breaking those protections.

The new Act applies to existing legislation governing Companies, Financiers, Bankers, Insurance Companies, Superannuation providers/advisors and Tax agents etc.   There are some distinct process differences, or additions, to some of the new laws governing these bodies, however, by and large, the risks are the same.  For the purpose of this paper, we are our comments related to companies, as specified under the Corporations Act 2001 (with amendments).

What is a disclosure eligible for protection?

A disclosure eligible for protection is one where the matter about to be disclosed is one where the discloser is any person deemed eligible to make a disclosure under the Act (described under the next heading).

A discloser qualifying for protection under the Act will be reporting matters that include where an officer or employee of a regulated entity (in this case a company) has engaged in conduct that is;

  • An offence under the Corporations Act
  • An offence against most financial, credit or insurance related Acts
  • An offence against any law of the Commonwealth punishable by 12 months or more in prison
  • A danger to the public or the financial system or
  • Is specifically prescribed by the regulations
  • A discloser making a protected disclosure does not have to identify themselves in order to qualify for protection.

The only stipulation under the Act is that, for the discloser to receive full protection, the disclosure must be made to ASIC, APRA or a Government entity established for that purpose.

Who can make a disclosure?

Disclosures can be made in respect of misconduct in a regulated entity, which is any organisation subject to any company or corporate regulation. A disclosure can be made by any employee, as well as any person, paid or unpaid, supplying goods or services.  It also includes trustees or managers of superannuation entities or Body Corporates.  In a ‘capture all’ umbrella it also applies to any person who is an associate of all those persons, including relatives, e.g. spouses and dependents.

If you want to know more about the Act and its impact on your business, please call the office on 03 9882 4550 or send an email to andrewmcleish@stopline.com.au