Devil’s Advocate: Australian

Australian Whistleblower Laws Reformed: Was it Necessary?

For ! Olivia Tabbernal I t was because of the whistleblowers that led to the ‘Banking Royal Commission’ uncovering ample amounts of misconduct in the fnancial services industry. It was because of Julian Assange that the world became privy to restricted war and classifed corruption documents. It was because of Richard Boyle revealing unfair debt collection tactics that lead to signifcant changes for businesses facing tax disputes. It was because of whistleblowers that the public became and become continuously aware of misconduct and corrupt activity that directly afect their every-day life. There is large controversy around whistleblowers. Despite the increasing importance of whistleblowing, there remains a live debate as to whether whistleblowers should be protected or be ostracised for truth telling. Due to societal pressure, it has been made clear that greater protections for whistleblowers are needed. As a result, the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 has made some key reforms to the Corporations Act 2001 (Cth).

Against " Yoonjeong Choi T he whistleblower policy is a recent yet intricate matter of the law that Australia currently faces. It was in 2013 that the need for whistleblower protection was frst legally recognised on a federal level, and since then, has been subject to much debate regarding its reform. In light of the new amendments to the policy, there is an apparent tension between the public and private sector. Particularly, whether there is enough and equal amount of protection for whistleblowers of both sectors.

The new laws surrounding the whistleblower policy seems to promote notions of unequal treatment before the law. The amendment requires public, large proprietary companies and registrable superannuation entities to implement new whistleblower policies by January 1, 2020. However, this was demanded only of the private sector, and not the public sector.

When we refect upon prominent media cases, such as the Australian Federal Police’s raids on the Australian Broadcasting Corporation (‘ABC’) and the home of News Corp journalist, Annika Smethurst, it is obvious that the whistleblower policy should address those in governance. Public sector whistleblowers risk imprisonment, and journalists receiving information from whistleblowers can be accused of receiving stolen goods. Further, Glencore International AG v Commissioner of Taxation highlighted that when it is a public sector entity involved with stolen documents, the validity of using such documents goes unquestioned. There is great irony here which demonstrates an imbalance in the way that our legal system operates.

Karen Payne, the current Inspector-General of Taxation, has also called for greater protections for whistleblowers from the Tax Ofce. When individuals from the public institution are able to recognise that there is a faw in the reform, it should be expected that the government would

It is crucial that a whistleblower is classifed as an ‘eligible whistleblower’, otherwise the person will not receive protection under the law. Therefore, a major amendment was made to allow more people to qualify as an ‘eligible whistleblower’, leading to greater protection for whistleblowers under the Corporations Act (Cth). The amendments also aim to foster accountability by penalising employers if they fail to fulfl a duty of care to the whistleblowing employee. Richard Boyle is currently facing imprisonment for disclosing information about debt collection practices that he learnt during his employment with the Australian Taxation Ofce (‘ATO’). He has been victimised for disclosing his concerns publicly and did not receive any protection from his employer. As of 1 January 2020, all public and large proprietary companies were required to update whistleblower policies in order to stay compliant with the new legislation. This includes providing greater protections for whistleblowers against detriment through victimisation. Consequently, companies are to be charged with a criminal ofence if their whistleblower policies are not compliant. Therefore, if the case of Richard Boyle occurred after the reforms took place, My Boyle’s employer would have been struck with severe penalties for breaching the new whistleblower protections.

To allow for increased transparency, people are now able to report misconduct anonymously. Therefore, under the necessary amendments to the Corporations Act (Cth), civil penalties will also be issued to companies who breach the anonymity of a whistleblower. Additionally, companies will be liable to pay compensation if the company, or their employees, engage in any detrimental conduct toward the whistleblower. Such hefty punishments introduced by the reforms to the Corporations Act (Cth) demonstrate the serosity of the need to provide increased protection for whistleblowers. This is a major step forward in allowing people to comfortably and safely tell the truth without sufering life-threatening consequences. Further, the range of conduct capable of being reported has also been expanded. The person who disclosed information needs to reasonably suspect the information relates to ‘misconduct or an improper state of afairs or circumstances’. Such broad terminology allows for a wider scope of disclosable matters to be reported, providing greater protection for whistleblowers than ever before. For example, if the whistleblower believes no action is undertaken to address the relevant matter, in the best interests of the community, emergency disclosures can be made to parliament and to journalists.

With the amendments to the Corporations Act (Cth) allowing for a broader protected disclosure regime and encouraging ethical whistleblowing by increasing protections for whistleblowers, the society will be benefted. Evidently, these amendments are necessary in order to allow people to shine a light on wrongdoings within industries, ultimately allowing for a greater culture of integrity in the future of the corporate world.

acknowledge and act upon it. However, the government’s response to the whistleblower protection inquiry had been to reject 19 of the 35 recommendations for reform, some of which addressed the whistleblowers in the public sector. An important fgure behind the whistleblower policy inquiry, Jef Morris, called for better reforms to be put in place. Morris went through proper channels to become a whistleblower in 2008 but was met with an undesirable outcome. With current reforms, Morris expressed that the government can ‘prosecute public sector whistleblowers as never before, threatening them with up to 160 years of imprisonment’.

Whistleblowers, whether they were in private or public sectors, have historically experienced negative social implications. Morris was subject to social ostracising and sufered from its psychological impact when he was unsuccessful in reporting Commonwealth Bank of Australia for their alleged misconduct. This outcome was mostly due to the lack of timely responses

from regulators and politicians, whereby there had been piles of lengthy documents to get through. A sentiment that Morris shared with other unsuccessful whistleblowers when he spoke at the Whistleblowers Australia conference, was that ‘people cheer whistleblowers but they don’t employ them’.

The lack of success in blowing the whistle is a shared issue for public service employees. A former Australian Tax Ofce debt-collector, Richard Boyle, has been unemployed since he was fred in 2017. Consequently, Boyle sufered fnancial and mental strain, and is currently faces the possibility of life imprisonment.

These historical trends, coupled with the tensions between private and public sector, makes it increasingly difcult to shift the current social attitudes towards whistleblowers.

Evidently, there is a need for policy reform. One that would uphold the common democratic notion that no one is above the rule of law.