Significant changes to the Australian whistleblowing regime came into effect in January 2019. These changes radically expand the current whistleblower protections and are predicted to have a substantial impact in Australia, including in employee relations.
This marks part of an increasing trend for jurisdictions to introduce enhanced whistleblower protections, aimed at encouraging internal reporting and ensuring protection for employees who raise concerns about wrongdoing. Hong Kong continues to lag behind on whistleblower protection, but recent legislative changes in other jurisdictions such as Australia may encourage legislators in Hong Kong to consider introducing more comprehensive whistleblower protections in Hong Kong.
The whistleblowing regime in Australia applies to "regulated entities". This is a broad category and will apply to most businesses and companies with operations in Australia.
WHO CAN BE A WHISTLEBLOWER?
In order to be an "eligible whistleblower", the person making the disclosure must be in a particular relationship to a "regulated entity". However, an individual may also be an "eligible whistleblower" if at any time in the past, they have been in such a relationship.
"Eligible whistleblowers" includes:
- independent contractors;
- employees of independent contractors; and
- relatives and dependents of the above individuals.
Significantly, an individual can be a whistleblower if they make a disclosure anonymously.
WHO CAN RECEIVE A DISCLOSURE?
For a disclosure to be a protected disclosure, it must be made by the "eligible whistleblower" to an "eligible recipient". Eligible recipients includes:
- "senior managers", being persons who make, or participate in making, decisions that affect the whole, or a substantial part of the business or the corporation or who have the capacity to affect significantly the corporations' financial standing;
- auditors; and
- persons authorized to receive disclosures (ie identified whistleblower hotlines).
In addition, in certain circumstances, individuals can also make complaints to members of Commonwealth or State Parliament or journalists. Broadly, this applies if the individual has previously made a complaint and no action has been taken or if there is a state of "emergency" because there is a substantial and imminent danger to the health or safety of a person(s) or the environment.
A disclosure does not need to be made in writing in order to be a protected disclosure.
WHAT CAN THE DISCLOSURE BE ABOUT?
To be a protected disclosure, the eligible whistleblower must have reasonable grounds to suspect that the information concerns misconduct, or an improper state of affairs or circumstances, in relation to a regulated entity. The reasonableness of the whistleblower's grounds to suspect the misconduct are assessed on an objective basis.
The explanatory memorandum explains that the categories of conduct about which a disclosure can be made is intentionally broad. It is intended to capture conduct that may not be in contravention of particular laws or which is unlawful. Instead, it is intended to capture conduct which may, for example, indicate a systemic issue that would assist the relevant regulator in performing its functions.
Critically, after amendments to the legislation, a "personal work-related grievance" does not constitute a protected disclosure. Broadly, a personal-work related grievance is a disclosure that concerns a grievance about the discloser's employment which has implications about the discloser personally and has no significant implications for the regulated entity. However, experience in other jurisdictions shows that this can easily be circumvented by the whistleblower making a disclosure about affected employees more broadly, of which the employee is a member, rather than limited to their own employment.
WHAT PROTECTIONS DOES A WHISTLEBLOWER HAVE?
The current victimisation provisions have been enhanced to provide broader protections for whistleblowers. In particular, it is now an offence to victimise a whistleblower and contravention of the whistleblower provisions can also attract civil penalties. Victimising a whistleblower includes causing or threatening to cause:
- harm to the whistleblower, including psychological harm;
- dismissal from employment;
- injury or alternation in employment; and
- discrimination between the whistleblower and other employees.
It will be a contravention of the provisions if the reason for the detriment to the whistleblower, or part of the reason, was a belief or suspicion that the person qualified for whistleblower protections.
In addition, the existence of these whistleblowing rights will also likely be recognised as a right to make a complaint or inquiry about employment, for the purposes of general protections claims under the Fair Work Act 2009.
Finally, there remain obligations to ensure that the confidentiality of a whistleblower is maintained.
Companies will be required to have a whistleblowing policy that is available to officers and employees of the company. The policy must include certain elements including how the company will support whistleblowers, how the company will investigate disclosures and the protections available to whistleblowers.