Whistleblower Protections

Whistleblowers are individuals who report misconduct or illegal activity within a company or organisation based on inside knowledge. There are various protections in place in Australia to ensure that people who report misconduct are not subjected to any adverse action as a result of having made a disclosure. This page outlines the whistleblower protections that exist under Australian law.

Whistleblower legislation

The Corporations Act 2001 contains protections for disclosures relating to organisations that are classified as “regulated entities”. These include companies, some corporations, and some charities. These protections are set out in Part 9.4AAA of the Act.

Part 4A of the Fair Work (Registered Organisations) Act 2009 contains protections that apply to registered organisations including unions, associations of employers, and enterprise associations.

The Taxation Administration Act 1953 contains protections for whistleblowers who disclose misconduct related to tax.

Whistleblower protections under the Corporations Act

Whistleblowers are protected under the Corporations Act if they disclose conduct that is:

  • a breach of the Corporations Act
  • the ASIC Act
  • conduct that amounts to a criminal offence punishable by imprisonment for more than 12 months
  • conduct that endangers the public or the financial system
  • conduct that is prescribed by regulation

AND have a reasonable belief that the information they are disclosing will reveal misconduct.

A person who has made a disclosure must not be victimised, or subjected to any adverse action, because of their disclosure. Civil penalties apply to the victimisation, or threatened victimisation, of a person for making a disclosure under this Act.

The identity of a person who has made a disclosure must be kept confidential.

Compensation and other remedies

If a person causes a detriment, or threatens to do so, to another person because they have made or may make a disclosure of the Corporations Act, a court may order:

  • that the person must compensate the person for us, damage, or injury
  • an injunction to stop, prevent, or remedy the effects of the person’s conduct
  • that the person must apologise
  • at the person must restore the other person to their previous position
  • that the person must pay exemplary damages.

Whistleblower protections under the Fair Work (Registered Organisations) Act 2009

Under section 337A of the Fair Work (Registered Organisations) Act 2009, protections apply when a disclosure is made by any of the following persons:

  • officers and former officers of an organisation
  • employees and former employees of an organisation
  • members and former members of an organisation
  • contractors who have supplied goods or services to an organisation, branch of an organisation, or employee or officer of an organisation

AND the disclosure is made to:

  • the general manager
  • the Fair Work Commission
  • the Fair Work Ombudsman

AND the discloser has reasonable grounds to suspect that there has been disclosable conduct by the organisation, an employee of the organisation, an officer of the organisation, or are member of the organisation.

An individual who has made a disclosure within the meaning of section 337A is not subject to any civil or criminal liability in relation to that disclosure, and no contractual provision may be enforced against them on the basis of the disclosure.

Reprisals

A person must not subject another person to any adverse action because they have made a disclosure. This means that a person must not do any of the following to another person because they have made a disclosure within the meaning of section 337A:

  • dismiss the person
  • harass the person
  • intimidate the person
  • demote the person
  • damage the person’s property
  • harm the person

Civil remedies

If the Federal Court of Australia or Federal Circuit and Family Court of Australia is satisfied that a person has carried out a reprisal against another person because they made a disclosure, it may order one or more of the following:

  • that the person pay compensation to the other person for loss, injury, or damage
  • an injunction to prevent, stop, or remedy the effects of the reprisal
  • an order requiring a person to apologise
  • an order requiring the person to restore the other person to their previous position
  • an order for exemplary damages
  • any other order the court sees fit.

Civil penalties

If a person carries out a reprisal against another person, or threatens to do so, because they know or suspect the other person has made a disclosure, they may be fined 100 penalty units.

Criminal penalties

if a person carries out a reprisal against another person because they have made a disclosure, or partly because they have made a disclosure, they may be charged with a criminal offence. This offence is punishable by a maximum penalty of two years imprisonment or a fine of 120 penalty units, or both.

Where to report wrongdoing

Reports of misconduct or illegal activity can be made to ASIC using an online form.

Reports can also be made to the National Anti-Corruption Commission or to the Australian Charities and Not-For-Profits Commission.

Disclosures relating to tax misconduct can be reported to the Australian Taxation Commission.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

Author

Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.
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