Whistleblowing

The Corporations Act and the Taxation Administration Act 1953 (Cth) (Taxation Act) both contain protections for whistleblowers. Amending legislation that came into effect on 1 July 2019 strengthened the protection for whistleblowers under these Acts.[7]

Protection under the Corporations Act

Under the Corporations Act, a whistleblower is afforded:

• protection of information;
• protection against legal action; and
• protection from detriment.

Protection of information

A whistleblower can ask the company or organisation that receives the whistleblower report to keep that individual's identity, or information that is likely to lead to their identification, confidential. Generally, companies and organisations that receive a report cannot disclose information without the whistleblower's consent. However, they may report the information to ASIC, APRA, the Australian Federal Police, or a lawyer for advice about whistleblower protections. Although such information must remain confidential.

Protection against legal action

Relevantly, the Corporations Act protects a whistleblower against certain legal actions related to making the disclosure: including:

• criminal prosecution (and the disclosure cannot be used against the whistleblower in a prosecution, unless the disclosure is false);
• civil litigation (such as for breach of an employment contract, duty of confidentiality, or other contractual obligation); or
• administrative action (including disciplinary action).

Protection against detriment

Moreover, the Corporations Act makes it illegal (through a criminal offence and civil penalty) for someone to cause or threaten detriment to a whistleblower because they believe or suspect that they have made, may have made, or could make a whistleblower disclosure.

The criminal offence and civil penalty apply even if that individual did not make a whistleblower report, but the offender caused or threatened detriment to the individual because they believed or suspected that they have or might make a report. A person may be found to have caused an individual detriment if they:

• dismissed an individual from employment;
• injured an individual during their employment;
• altered an individual's position or duties to their disadvantage;
• discriminated against that individual and other employees of the same employer;
• harassed or intimidated the individual;
• caused psychological harm to that individual;
• damaged that individual's property, reputation, business, or financial position; or
• caused any other damage.

Importantly, the offence and penalty require that the detriment be the result of an actual or suspected whistleblower disclosure.

Other protection

An individual can seek compensation through a court if they suffer loss, damage or injury for making their disclosure.

Alternatively, an individual can pursue other remedies, such as:

• an order that the individual's employer reinstate them to their original position or a comparable position;
• an injunction to prevent or stop the detrimental conduct;
• an order that the person, company or organisation that has caused the individual detriment or threatened them, apologise to that individual.

Protection under the Taxations Act

Under the Taxations Act, the following protection is provided to an eligible whistleblower:

• protection of information – noting that it is illegal for someone to disclose a whistleblower's identity, or information that is likely to lead to their identification;
• protection from civil, criminal or administrative liability for making their disclosure and an entity cannot be sued for a breach of confidentiality clause in a contract; and
• immunity from disciplinary action.

The most fundamental part of the protection is the prohibition of retaliation against the whistleblower. Therefore, the reporting or disclosing of information may not result in unjustified disadvantages such as disciplinary measures, dismissal or other discrimination against the person providing the information. In Addition, the Whistleblower Protection Act still contains a reversal of the burden of proof if the whistleblower suffers a disadvantage in connection with their professional activities. However, it is presumed that the disadvantage is a reprisal for the tip-off only if the whistleblower also asserts this themself. It should be noted, however, that the reversal of the burden of proof in favour of the whistleblower will only apply in labour court disputes and not in fining proceedings.

Furthermore, the Whistleblower Protection Act contains an exclusion of responsibility. Thus, a whistleblower cannot be made legally responsible for obtaining or accessing information that he or she has reported or disclosed, unless the obtaining or accessing of the information and the procurement or access as such constitutes an independent criminal offence (section 35 (1) HinSchG). In addition, a whistleblower does not violate any disclosure restrictions and may not be held legally responsible for the disclosure of information made in a report or disclosure if he or she had reasonable cause to believe that the disclosure of the information was necessary to detect a violation.