The changes to whistleblower laws in Australia may also have an impact on work health and safety obligations to protect the whistleblowers from bullying or victimisation if their identity becomes known.
The Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth) has been passed and significantly alters and expands protection for ‘eligible whistleblowers’ who report wrongdoing in the corporate sphere. The amendments revamp the current whistleblowing scheme provided in the Corporations Act 2001 (Cth).
- expand the definition of ‘whistleblowers’ to cover officers, employees (paid and unpaid), individuals supplying goods and services (paid and unpaid) and their employees, an individual who is an associate of the regulated entity, and the relatives and dependents of the above;
- allow and protect anonymous disclosure by whistleblowers;
- remove the ‘good faith’ disclosure requirement which previously rendered whistleblowers ineligible for protection if their disclosure was not motivated by ‘good faith’;
- provide whistleblowers with immunity from civil, criminal, or administrative liability for protected disclosures;
- provide protection for disclosure to journalists or parliamentarians in certain circumstances, namely where it is in the ‘public interest’, or the information concerns ‘a substantial and imminent danger to the health and safety’ of people or the ‘natural environment’;
- introduce civil penalties for victimising or breaching the confidentiality of a whistleblower; and
- specifically exclude ‘personal work-related grievances’ from protection.
While the protection referenced in the legislation relates to specific civil penalties for victimising or breaching the confidentiality of a whistleblower, the flow on from this regime also means that any harm suffered by the whistleblower as a result of their conduct, could also spell liability for the organisation and its officers if WHS laws are considered to have been breached.
Generally, the identity of the whistleblower will remain anonymous and confidential, but if the identity becomes known, then an organisation must take reasonably practicable steps to ensure that the individual is not subjected to any harm, including reasonably foreseeable harm such as bullying.
A review of your organisations’ obligations to whistleblowers should be undertaken, not only to assess any compliance requirements with the updated corporate laws, but also to assess how the health and safety of the whistleblower can be protected.