Whistleblower Protections Bill amendments

The Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2018 was passed by the Senate with amendments on 6 December 2018, but it has not yet been introduced into the House of Representatives. If the Bill is not passed before an election is called it will lapse. Background.

The purpose of the Bill is to:

• amend the Corporations Act 2001 to consolidate and broaden the whistleblower protection regime for the corporate and financial sector; and

• amend the Taxation Administration Act 1953 to create a whistleblower protection regime for disclosures of breaches of tax laws and tax avoidance.

If passed, the Bill will require public companies and large proprietary companies to:
• have a policy with information about the protections available to whistleblowers, as well as how the company will ensure fair treatment of employees who are mentioned in whistleblower disclosures, and any matters prescribed by regulation; and
• make this policy available to people who may be eligible whistleblowers in relation to the company.

The amendments to the Bill address the recommendations of the Report of the Senate Economics Legislation Committee and Senator Rex Patrick in his Dissenting Report.

The amendments:
• remove a whistleblower’s supervisor or manager from the category of ‘eligible recipients’ to whom a protected disclosure may be made: only senior managers can now receive a protected disclosure;
• replace the protection of emergency disclosures with two categories of protected disclosures:
– an amended emergency disclosure category based on substantial and imminent danger to a person’s health and safety, or the natural environment, and
– a new public interest limb based on a broad public interest test (a protected disclosure can be made to a Member of Parliament or a journalist under certain conditions);
• amend the definition of ‘journalist’ for the purposes of the emergency disclosure and public interest disclosure categories so the definition applies to all journalists working for the national broadcasters;
• exclude most disclosures of personal work-related grievances from protection;
• allow whistleblowers to make a claim for compensation when a body corporate breaches a duty it owes to the whistleblower to prevent a third person engaging in detrimental conduct (formerly labelled victimising conduct) towards them;
• remove due diligence as a complete defence to certain compensation orders and instead incorporate due diligence as a factor the courts may consider in making these compensation order;
• provide that a court making a compensation order must consider the period a person is likely to be without employment in circumstances where the detrimental conduct involved termination of employment;
• increase penalties in line with the penalty framework established under the Penalties Bill; and
• include a requirement for a post-implementation review of the amended whistleblower laws five years after the amendments commence.

The amendments generally apply to both the whistleblower regimes in the Corporations Act and the TAA 1953. However, some amendments do not apply to the tax regime .

The Bill as amended will commence on the first day of the second quarter following Royal Assent.

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