Recent Media Focus on Whistleblowing

Last Sunday 23 June 2019, non-government organisations across the world that advocate for whistleblower protections marked the annual World Whistleblowers Day.

According to Transparency International, “in February this year, Australia set a new standard in private sector whistleblower protection. Companies there now have to proactively put in place protections to that [sic] will safeguard people who speak out.”

Transparency International goes on to suggest that the next step should be to provide the same level of protection to government employees.

There has been much discussion in Australia recently about protections for public sector whistleblowers and for journalists, with The Australian reporting last week that the Commonwealth Attorney-General, the Hon Christian Porter MP, plans to reform the Public Interest Disclosure Act 2013 (Cth) (PID Act). This article follows wide reporting of raids by the Australian Federal Police on the ABC, following disclosures by a former Australian Defence Force employee, who will stand trial on several charges relating to his disclosure of information about the actions of Australian special forces in Afghanistan.

In a Federal Court decision handed down in April this year, the PID Act was described as “a statute which is largely impenetrable, not only for a lawyer, but even more so for an ordinary member of the public or a person employed in the Commonwealth bureaucracy”.

Whistleblowing Under the Corporations Act

On our Whistleblower Resource Page, we provide links to several recent School Governance articles and to the webinar presented by James Field, CompliSpace Co-Founder and CEO, on the implications for schools of the expanded whistleblower protections in Part 9.4AAA of the Corporations Act 2001 (Cth) (Corporations Act). From 1 July 2019, heavy civil and criminal penalties may apply if companies fail to:

• keep the identity of an “eligible whistleblower” confidential (except in circumstances where the Corporations Act recognises the disclosure of their identity to be “authorised”); or
• protect an “eligible whistleblower” from being victimised following the making of a disclosure that qualifies for protection.

Under the amended whistleblower provisions, a much greater range of disclosures will qualify for protection than previously. To give just one example, “eligible whistleblowers” will now include former, as well as current, officers, employees and suppliers of services or goods (who may be paid or unpaid), their relatives and dependants, and the dependants of their spouses.

From 1 January 2020, public companies — which include companies limited by guarantee — and large proprietary companies must have in place a whistleblower policy that meets the requirements set out in the Corporations Act. That is, schools that are public companies must ensure that their whistleblower policy includes information about:

• the protections available to whistleblowers, including the protections under Part 9.4AAA
• to whom and how disclosures that qualify for protection may be made
• how the school will support whistleblowers and protect them from detriment
• how the school will investigate disclosures that qualify for protection
• how the school will ensure fair treatment of employees who are mentioned in qualifying disclosures
• how the policy will be made available to officers and employees
• as well as any other matters that are prescribed in regulations made under the Corporations Act in relation to the whistleblower laws. Regulations — which the Corporations Act states may also be made regarding “eligible whistleblowers”, “regulated entities” and “eligible recipients”, the type of conduct that is the subject of a qualifying disclosure, and circumstances where disclosure of a whistleblower’s identity is “authorised” — have not been made to date.

Preparing for the New Whistleblower Protections

In our two-part article, The Link Between Ineffective Complaints Handling and the Use of the Whistleblowing Protections, we addressed the important roles that robust, regularly reviewed complaints handling procedures and internal grievance procedures can play in ensuring that your school has a culture where people know they can speak up about wrongdoing, in the knowledge that their disclosures will be investigated appropriately, and that they will not suffer detriment as a result.

It is evident that whistleblowing and whistleblower protections will continue to be the subject of much attention in the media, the community and the Commonwealth Parliament.