Sounding the Alarm

What we know about Australia’s new corporate whistleblowing regime—and what previous cases from the U.K. can teach us.

Australia’s New Whistleblowing Regime

Nicholas Turner

August 30, 2021 06:00 AM

Australia’s new whistleblowing regime was introduced to provide enhanced protections to those in the corporate sector who seek to inform others of malfeasance. It significantly expands the categories of individuals eligible to qualify as whistleblowers, the types of disclosures that will be protected, and the individuals and entities to whom disclosures can be made.

It’s critical for employers in Australia to be able to identify, at the outset, whether a complaint or disclosure will fall within the scope of the new regime. Mistakes at the beginning can create substantial difficulties and expose employers to potentially significant liability for even inadvertent noncompliance.

As yet , no case law in Australia has considered the new strictures. Australian whistleblowing laws, though, are a hybrid of the statutory regimes currently in place in the United Kingdom and the United States, so employers can draw some guidance from previous judgments there—particularly those in the U.K.

What should an employer be aware of when receiving information or a complaint?

At first glance, certain disclosures might not appear to be protected under whistleblowing laws, so determining their official status is critical. Where once employers might have been alert primarily to whether the complaint indicated bullying, harassment, or discrimination, they must now also consider whether it falls within the scope of the law. If it does, protecting the whistleblower’s identity is imperative—and innocently providing the complaint to an internal HR or investigative team might breach the legislation.

To determine whether certain information will constitute a protected disclosure, one must consider whether

  • the individual who disclosed the information or made the complaint will be an eligible whistleblower;
  • the type of information disclosed or complained about will be considered a protected disclosure;
    and whether
  • the individual disclosed the information or made the complaint to a person eligible to receive that information.

Under Australian law, current and former employees, suppliers, or contractors, as well as the spouse or any family members of these individuals, may be considered whistleblowers. They will be legally protected if they have reasonable grounds to suspect that the information they’re disclosing concerns a regulated entity, or an officer or employee of a regulated entity, engaging in

  • misconduct;
  • an improper state of affairs or circumstances;
  • conduct that is in breach of financial-sector laws;
  • conduct that constitutes a Commonwealth offence punishable by 12 months’ imprisonment; or
  • conduct that represents a danger to the public or financial system.

Given the broad range of concerns that may be disclosed, it is critical for employers to identify whether the information or complaint will fall into one of these categories. If an employee comments to a senior manager that his or her manager is bullying the team, for example, that employee could be regarded as a protected whistleblower.

To get a sense of the broad range of conduct that may be ensnared by whistleblowing laws, consider Elysium Healthcare No. 2 Ltd v. Ogunlami from the U.K. In this decision published in 2019 case, a healthcare assistant complained to his employer that his supervisor had been taking food from patients. The U.K.’s Employment Appeal Tribunal (EAT) had to consider whether this disclosure was protected. Whilst at first glance it might not seem to be, given that it concerns individual conduct rather than a more widespread problem, the EAT found that the assistant was indeed a protected whistleblower, on the basis that the disclosure indicated a breach of a legal obligation: the supervisor’s conditions of employment.

Under Australian law, current and former employees, suppliers, or contractors, as well as the spouse or any family members of these individuals, may be considered whistleblowers."

Factors employers should consider to ensure regime compliance


Employers in Australia that are classified as “large proprietary companies” under the regime are required to have a formal whistleblower policy, which must be made available to officers and employees and must outline the process by which the employer will investigate and deal with such disclosures. Even if such policies are not a formal legislative requirement, employers ought to maintain them to ensure that their workforce understands the appropriate means for making, and dealing with, complaints.

What are the risks of an employer unknowingly breaching whistleblowing protections? Consider, again from the U.K., Beatt v. Croydon Health Services NHS Trust, from 2017. Here, a cardiologist disclosed a number of things to his employer, including an assertion that the suspension of a nurse in his division directly contributed to the death of a patient. The employer considered the information to be vexatious and unsubstantiated, and the cardiologist was subsequently dismissed for serious misconduct on the grounds that he had made false accusations of poor patient safety against a coworker. The Court of Appeal held that the cardiologist had been unfairly terminated, contrary to whistleblowing protections— and, further, that he was dismissed because he had made what should have been protected disclosures. The court held that it did not matter that the employer genuinely believed both that the information wasn’t protected and that the cardiologist was making the accusation in bad faith.


Employers should also ensure that their workers, particularly those eligible to receive protected disclosures, complete whistleblower training that will enable them to identify the types of complaints and information that may be protected, and make them aware of the procedures they must follow in such instances.

When it’s not clear if a complaint or disclosed information will be protected, employers should seek legal advice to ensure that they remain compliant.

DLA Piper ’s employment team has extensive experience advising clients on the whistleblowing regimes in Australia and the U.K., as well as helping them deal with the relevant processes that must be followed upon receipt of a protected disclosure. Please reach out to our team to learn how we might be able to assist you.

Nicholas Turner has over 20 years’ experience working across Australia, Asia and London. He is qualified in both Australia and the United Kingdom and has particular expertise in financial services, life sciences and technology. Nicholas regularly advises clients on complex and sensitive investigations, terminations and compliance issues, as well as advising on the full range of employment matters and acting in employment litigation.

Related Articles

Checks and Balances

by Michael Sullivan

Ensuring probity and above-board behaviour in both the public and private sector is always important—and that importance can be particularly stark during a major crisis like the pandemic. An overview of a year’s worth of commissions and inquiries.

Australian Commission Governance Structure

Blurred Lines

by Andrew Kirby

Where does responsible lending end and unconscionability begin? Australian courts have come to vastly different conclusions. An overview of current case law.

Australian Courts Assess Loan Repayment

The Partnership Opportunity

by David Harley, Shaun Whittaker, Tony Rutherford and Troy Lewis

Doing well and doing good need not be mutually exclusive. Housing developments that provide both solid long-term returns and positive social outcomes, often through public-private partnerships, are an idea whose time has come throughout Australia.

Housing Developments in Australia

The Great Debate Between Agriculture, Mining and Environment

by Rebecca Hoare

Can we really have it all?  The pursuit of the harmonious intersection of Australia’s agricultural and resources industries and the environment.

Australia Agriculture, Mining & Environment

Accessorial Liability in the Fissured Workplace

by Rohen Cullen and Caroline O’Connor

The wilfully blind beware.

Accessorial Liability

Announcing The Best Lawyers in Australia™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms from Australia.

The Best Lawyers in Australia™ 2023

Celebrating Lawyers From Around the World: Annabel West

by Rebecca Blackwell

We are honoring the achievements and career of Annabel West, lawyer and wife of South Australian Premier Peter Malinauskas.

Accomplished Australian Lawyer Annabel West

SEC Whistleblower Awards Are Spiraling. Could It Be Part of MeToo Movement?

by John Ettorre

The MeToo movement has had an unexpected impact on SEC-related whistleblower cases, and many are receiving substantial payouts for the financial fraud they are reporting.

Rise in Whistleblowing a Result of MeToo

Facebook Whistleblower Testimony Shines A Light On Credibility Factor

by Justin Smulison

Landmark whistleblower testimony was provided on Capitol Hill which may have a national—and even worldwide—effect on how governments regulate Big Tech companies.

Capitol Hill Facebook Whistleblower Testimony

A Climate Duty

by Lara Douvartzidis and Samantha Daly

Converging trends in Australia and the Netherlands: reasonable foreseeability in climate change law and other novel developments.

Climate Change Law in Australia

Announcing the 2022 Best Lawyers™ in Australia

by Best Lawyers

The results include an elite field of top lawyers and firms.

Announcing the 2022 Best Lawyers™ in Australi

What Does It Take to Join The Best Lawyers in Australia?

by Best Lawyers

We asked The Best Lawyers in Australia: What advice would you give your younger self?

Nominate a Lawyer in Australia

Working With Changes

by Best Lawyers

Carolyn Pugsley, the Joint Global Head of Practice for Corporate, Australia at Herbert Smith and Freehills, discusses policy changes affecting the M&A market in Australia as well as the impact of the pandemic on the practice.

An Interview With Herbert Smith and Freehills

Can Your Option to Purchase Get Lost in a Franchise Agreement?

by Alicia Hill and Benjamin Caddaye

With the changing of a contract in a franchise agreement, certain rights you thought you were entitled to might get lost in translation.

Franchise Agreements and Purchase Options

Trending Articles

The Real Camille: An Interview with Johnny Depp’s Lawyer Camille Vasquez

by Rebecca Blackwell

Camille Vasquez, a young lawyer at Brown Rudnick, sat down with Best Lawyers CEO Phillip Greer to talk about her distinguished career, recently being named partner and what comes next for her.

Camille Vasquez in office

Johnny Depp and Amber Heard: The Best Lawyers Honorees Behind the Litigation

by Gregory Sirico

Best Lawyers takes a look at the recognized legal talent representing Johnny Depp and Amber Heard in their ongoing defamation trial.

Lawyers for Johnny Depp and Amber Heard

Announcing The Best Lawyers in The United Kingdom™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms from the United Kingdom.

The Best Lawyers in The United Kingdom 2023

Announcing The Best Lawyers in France™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms from France.

Blue, white and red strips

Announcing The Best Lawyers in Germany™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms from Germany.

Black, red and yellow stripes

Education by Trial: Cultivating Legal Expertise in the Courtroom

by Margo Pierce

The intricacies of complex lawsuits require extensive knowledge of the legal precedent. But they also demand a high level of skill in every discipline needed to succeed at trial, such as analyzing technical reports and deposing expert witnesses.

Cultivating Legal Expertise in the Courtroom

Announcing the 2022 Best Lawyers® in the United States

by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

Announcing The Best Lawyers in Belgium™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms from Belgium.

Black, yellow and red stripes

Announcing the 2022 Best Lawyers™ in France

by Best Lawyers

The results include an elite field of top lawyers and firms, including our inaugural Best Lawyers: Ones to Watch recipients.

Announcing the 2022 Best Lawyers™ in France

We Are Women, We Are Fearless

by Deborah S. Chang and Justin Smulison

Athea Trial Lawyers is a female owned and operated law firm specializing in civil litigation, catastrophic energy, wrongful death and product liability.

Athea Trial Law Female Leadership and Success

Choosing a Title Company: What a Seller Should Expect

by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

Announcing the 2022 Best Lawyers™ in Germany

by Best Lawyers

The results include an elite field of top lawyers and firms, including our inaugural Best Lawyers: Ones to Watch recipients.

Announcing the 2022 Best Lawyers™ in Germany

What If Johnny Depp and Amber Heard Had a Premarital Agreement?

by John M. Goralka

Oh, the gritty details we’re learning from the latest court battle between Johnny Depp and Amber Heard. This unfortunate airing of dirty laundry may have been avoided with a prenup. Should you think about getting one yourself?

What If Johnny Depp & Amber Heard Had Prenup?

U.K. Introduces Revisions to Right-to-Work Scheme and Immigration Rules

by Gregory Sirico

Right-to-Work Scheme and Immigration Rules in

Destiny Fulfilled

by Sara Collin

Was Angela Reddock-Wright destined to become a lawyer? It sure seems that way. Yet her path was circuitous. This accomplished employment attorney, turned mediator, arbitrator and ADR specialist nonpareil discusses her career, the role of attorneys in society, the new world of post-pandemic work and why new Supreme Court Justice Ketanji Brown Jackson represents the future.

Interview with Lawyer Angela Reddock-Wright

What the Courts Say About Recording in the Classroom

by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?