The Senate Economics Legislation Committee (Senate Committee) recently completed its inquiry into the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017 (Bill), issued its report and recommended the Bill be passed.
The Bill would:
The most notable amendments contained in the Bill will:
These amendments will likely create a number of practical difficulties for employers in receiving and investigating protected disclosures. For example, it can be very difficult to properly investigate an anonymous disclosure. Similarly, the restrictions on disclosing a whistleblower's identity may seriously hamper a proper investigation. If identity is disclosed, even unintentionally, significant penalties can be imposed.
Another difficulty will be determining whether the alleged wrongdoing is a disclosable matter covered by the new provisions. For example, such matters include conduct in breach of a range of legislation, including the Corporations Act 2001, and disclosures about 'misconduct' or 'an improper state of affairs' in relation to a relevant entity.
The fact that disclosures can be made to a person's manager or supervisor may also be problematic. At the very least, it means managers and supervisors will need training to be able to identify and respond to a relevant disclosure.
For more detailed information on the contents of the Bill and the amendments it contains, please visit this previous article.
As well as recommending the Bill be passed, the Senate Committee also recommended the Bill include a requirement for future review, including to consider the:
These matters were all recommended by the Parliamentary Joint Committee report but not included in the Bill.
The Senate Committee also noted concerns that the definition of 'journalist' is too narrow as it currently stands in the Bill, and is ambiguous as to its intended scope. Accordingly, it recommended that the definition of 'journalist' in the Bill be reviewed.
Based on the Senate Committee's report and recommendations, we expect the Bill will be passed in its current form in the near future. Even though companies will have until 1 January 2019 to put in place a compliant policy, the new legislation will come into force on 1 July 2018. Therefore, now is the time to think about:
Importantly, the Bill includes a number of mandatory content requirements for the whistleblower policy.
Read our previous update about the draft Whistleblower Bill being released for consultation.