From symbols to systems: Progress in the reform of Australia's private sector whistleblowing laws

Abstract

Reform to Australia’s private sector whistleblowing laws, currently contained in the Corporations Act 2001 (Cth), has long been on the agenda. Despite only being enacted in 2004, the need for reform to these provisions has been outlined by no less than three Federal government inquiries and four issues papers since 2009, including a major report of the Joint Parliamentary Committee on Corporations and Financial Services in September 2017.1 1 Parliamentary Joint Committee on Corporations and Financial Services Report, Whistleblower Protections, 2017 available at https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Corporations_and_Financial_Services/WhistleblowerProtections/Report. View all notes On 7 December 2017, the Federal government introduced into parliament the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017 (the Amendment Bill), containing major reform to the Corporations Act provisions.2 2 The Amendment Bill also contains proposed reform to the Taxation Administration Act 1953 (Cth) to insert almost identical provisions therein. These reforms are not discussed in this article. View all notes This Bill, if passed, will significantly expand the scope, protections and corporate obligations in relation to private sector whistleblowing in Australia.3 3 The terms “whistleblowing” and “whistleblower” are used throughout this article where they are consistent with the context or source being discussed. Where ever possible however we use the alternate terms of “wrongdoing reporting” or “person who reports wrongdoing”. View all notes

This article discusses the key changes proposed in the Amendment Bill, in the context of both the wider discourse on whistleblowing that has developed over recent decades, and the spectrum of reforms recommended by recent inquiries. In particular, it outlines the shift in narrative from one focused primarily upon protecting whistleblowers from retaliation to one that also advocates for legal obligations being placed on corporations to have in place best practice policies and procedures to deal with wrongdoing reporting. This shift to a governance-based approach to regulation is in line with other developments in areas such as foreign bribery, corruption and tax evasion. In this respect, the article also presents new empirical data from a self-report survey of 702 Australian and New Zealand organisations, including 263 companies and not-for-profit entities, regarding the content of their current whistleblowing processes and procedures. This survey affirms that the shift to a governance-based approach to whistleblowing is already occurring, from the “bottom-up” in many Australian industry sectors, led by the financial services sector.

In the first part of this article we outline the broad shift in discourse. We then summarise key features of the Amendment Bill, focusing on its scope and the protection against retaliation provisions. Against this backdrop, we outline the most innovative contributions of the Amendment Bill in terms of locating whistleblowing in the corporate governance framework. Finally, we evaluate these issues in the context of our survey results, before making concluding observations.