Clarifying whistleblower protections and the importance of a robust program

McGrathNicol’s FCX recently hosted an expert panel comprising Corrs Partner Abby Gill, Griffith University’s Professor AJ Brown, ANZ Whistleblower Program Lead Clare Molan and Head of ASIC’s Office of the Whistleblower Warren Day, to discuss the whistleblower reforms that were introduced on 1 July. Important points raised in the discussion were:

  • Conduct that will trigger whistleblower protection is defined in the act as “misconduct or an improper state of affairs or circumstances”. The panel thought it is likely that this expression will be interpreted broadly by the courts.
  • Whistleblower protection rights are automatic – a person coming forward to make a report of corporate misconduct does not need to claim or apply for protection in order to be protected.
  • A company’s whistleblower protection programs must also be effective in protecting a person who has not yet come forward but who could come forward as a whistleblower.
  • Anonymous whistleblowers must be protected – any breach of the duty to maintain the confidentiality of a whistleblower’s identity and the information provided will be viewed seriously by the courts.
  • There is a strong business case for having a robust and effective whistleblower protection regime in Australian business – the panel were of the collective view that compliance with the legislation is merely a foundation for a strong whistleblower protection program.
  • Management of a company’s risk under the new whistleblower regime requires both policy and a supporting program which is fit for purpose in its business. To be effective, such a program will require design, communication and training which enables employees (and others) to fully understand their rights and obligations and embeds the culture of “speaking up without fear”.