WHISTLEBLOWERS NOW GET LEGAL PROTECTIONS
Whistleblowers who report misconduct about companies can now access stronger rights and protections under law changes to the Corporations Act.
Brisbane intellectual property and domain name lawyer Nicole Murdoch says the changes to the Corporations Act mean whistleblowers wanting to disclose information about misconduct or breaches of the law within a company or organisation are now entitled to greater rights and protections.
Changes to the Corporations Act mean companies are now legally required to a greater standard to uphold whistleblower confidentiality and provide protection for whistleblowers from detriment.
Ms Murdoch, Principal with Brisbane boutique Intellectual Property and Privacy law firm EAGLEGATE Lawyers, which handles matters of Patent law, Copyright law, Trade Marks, Domain names and general Cyber law says The Act now effectively protects a whistleblower from criminal prosecution, civil litigation or disciplinary action threatened against them if they make a disclosure or are affected by the disclosure event.
It does not, however, grant immunity to the whistleblower for any misconduct by them.
“The Corporations Act effectively makes it illegal for someone to hurt or threaten a whistleblower because they may think or suspect this person of making a whistleblower disclosure report.
“Even if a disclosure has not been made, the Act can still apply to protect a person if the offender threatens to harm them because they suspect that this person has made or is likely to disclose a controversial act,” she says.
The protections under section 1317AI of the Corporations Act also apply to a wider group of people who may observe or be affected by corporate misconduct. The Act applies to people in danger of facing retribution for reporting incidents or for being slightly involved or being within physical proximity of the disclosed event.
Ms Murdoch says these protections cover both current and former company employees, and contractors, as well as their families. In addition, the protections also extend outside just infringements of the law, and can apply to whistleblower reports covering inappropriate conditions within a company.
“So the Corporations Act now protects a person if they make a whistleblower report internally within the company or externally to official regulatory organisations such as the Australian Securities and Investments Commission (ASIC) and the Australian Prudential Regulation Authority (APRA).
“The protections may also apply if the person makes a whistleblower report to the media or a Member of Parliament, if the reported issue is a matter of public interest or it qualifies as an emergency” she says.
Ms Murdoch expects the changes to the Corporations Act to impact almost all companies established within the Commonwealth and can include foreign corporations, trading corporations, or financial corporations.
Such a change will force many of these entities to amend their approach to whistleblowing and have a new policy that aligns with the transparency protocols that the Corporations Act aims to enforce.
“Companies will be expected to have a new policy ready by January 2020. The penalty for non-compliance with the new regime change by that date is $12,600 and applies to public companies, large proprietary companies, and corporate trustees of registrable superannuation entities.
“Should a breach occur where a whistleblower in any organisation suffers a penalty and company policy does not fairly remedy the situation, the penalty for non-compliance and breaching the amended section of the Act is severe and costly. It’s enough that all companies need to urgently update their whistleblower policy,” she says.
Ms Murdoch says whistleblowers planning to disclose activities within their workplace should not only be made aware of their legal protections but should also obtain their own legal advice of the rights available to them.
“I expect EAGLEGATE lawyers will be asked about what protections or compensation rights can apply when events within a company are disclosed.
This is particularly crucial if someone is thinking of acting on the rights that whistleblower protections provide them or they are personally affected by criminal prosecution, civil litigation or disciplinary actions,” she says.