The Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019, which received Royal Assent in March 2019, aims to encourage appropriate whistleblowing, improve the protections for whistleblowers and make employers accountable for protecting whistleblowers.
The new requirements
The new regime began on 1 July 2019, and includes amendments to the Corporations Act 2001 (Cth). This applies to all companies registered under the Corporations Act and trading or financial corporations formed within the limits of the Commonwealth. This could include incorporated associations or other incorporated charities registered with the Australian Charities and Not-for-profits Commission.
The Australian Securities and Investments Commission (ASIC) has recently announced that public companies that are small not-for-profits (NFP) or registered charities with annual revenue of less than $1 million will be exempt from the new requirement. Even if your organisation is exempt, you may still have whistle blowing obligations, including all companies limited by guarantee must still comply with the whistle blower protections in the Corporations Act and under ACNC’s External Conduct Standards, you are still required to have a whistle blowing policy.
Failure to comply will be a criminal offence and the regime also creates civil penalty provisions for those causing or threatening detriment to whistleblowers and those who breach a whistleblowers confidentiality.
Therefore, these new requirements should be considered by all for-profit and not-for-profit organisations, as soon as possible.
The new regime requires some public companies, large proprietary companies, and corporate trustees of registrable superannuation entities to have a whistleblower policy from 1 January 2020.
The whistleblower policy must be made available to officers and employees and must include information about:
- The protections under law for whistleblowers
- How and to whom the individual can make a disclosure,
- How the organisation will support whistleblowers and protect them,
- How the organisation will investigate disclosures and handle personal information,
- How the policy is to be made available
All organisations need to consider the application of the whistleblower policy requirements to determine if they are applicable. It may be appropriate for your organisation to create a whistle blower policy even if you are not strictly required to. Key actions include:
- Immediately consider how these new requirements apply to your organisation,
- Update your whistleblower policy or create one,
- Considering training for your staff, including the details of your policy, the new regime and protections,
- Consider training for those authorised to receive whistleblowing disclosures.
The Australian Securities and Investments Commission has significant guidance for organisations and how the new regime applies, including specifically for not-for-profits. The ACNC also has a fact sheet.
If you have any questions in relation to these new Whistle Blower requirements, please contact Matthew Crouch.