Significant Increase in Penalties for Breaching Whistleblower Law

On 4 February 2019, the Federal Government released its Response to the Final Report of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry. In Restoring trust in Australia’s financial system, the Government indicated that:

“Legislation is before the Parliament to significantly increase penalties, both civil and criminal, so that they are an effective deterrent to, and remedy for, corporate and financial misconduct. We have also introduced legislation for a single whistleblower protection regime to cover the corporate, financial and credit sectors.”

Our recent School Governance article highlighted the new obligations imposed on companies under the amended whistleblower protection regime introduced by the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth), which comes into effect from 1 July 2019, in particular the obligations to protect whistleblowers from detriment and to have in place a whistleblower policy by 1 January 2020.

Because CompliSpace received numerous queries from schools about the strengthened whistleblower laws, CEO and Co-Founder of CompliSpace, James Field, presented a webinar on the topic earlier this week.

Criminal and Civil Penalties for Non-Compliance

Under the amended whistleblower protection regime, it will be a criminal offence to contravene:

• the requirement to keep a whistleblower’s identity confidential
• the prohibition on victimisation following a protected disclosure by a whistleblower.

Civil penalties also apply to contravention of these provisions. Failure by a public company or large proprietary company to comply with the requirement to have in place a whistleblower policy is also an offence, but the whistleblower law does not provide for a civil penalty in this case.

While the Bill to enhance whistleblower protections was before Parliament, its penalty provisions were amended to reflect the Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Bill 2018 (Cth) (Penalties Bill) that was introduced into Parliament in late 2018. If the Penalties Bill was passed by the Parliament, penalties in the whistleblowing law would be increased to be consistent with the new penalty framework.

The Penalties Bill was passed and most of its provisions commenced on 13 March 2019. As a result, both civil and criminal financial penalties in relation to whistleblowing have significantly increased.

Accordingly, the civil penalties that apply for breach of confidentiality of a whistleblower’s identity or victimisation of a whistleblower are as follows:

• for an individual, the greater of 5000 penalty units and three times the benefit derived or detriment avoided because of the contravention (if that can be determined by the court)
• for a company, the greatest of 50,000 penalty units, three times the benefit derived or detriment avoided because of the contravention (if that can be determined by the court), and either 10 per cent of annual turnover up to 2.5 million penalty units.

Criminal penalties are as follows:

• breach of confidentiality of identity of whistleblower
• for an individual: six months imprisonment and/or 60 penalty units
• for a company: 600 penalty units
• victimisation of whistleblower
• for an individual: two years imprisonment and/or 240 penalty units
• for a company: 2400 penalty units
• failure to have in place a whistleblower policy
• for an individual: 60 penalty units
• for a company: 600 penalty units.

A penalty unit is currently $210, as determined under the Crimes Act 1914 (Cth).

You can access a recording of the webinar (and other resources) via the CompliSpace Whistleblower resources page. Click here to access the resource page.