Insight

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
NT

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

POLICIES

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.

TRAINING

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

The Best Lawyers in Australia™ 2024 Launch


by Best Lawyers

Best Lawyers is excited to announce The Best Lawyers in Australia™ for 2023, including the top lawyers and law firms from Australia.

Australian Parliament beside water at sunset

Australasian In the Law: Legal News From Our Recently Awarded Countries


by Gregory Sirico

Best Lawyers highlights the top legal stories out of Australia, New Zealand, Japan and Singapore, in conjunction with the 2024 Australasian launch.

Suited man sitting at table using a tablet

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

Announcing the 2023 The Best Lawyers in America Honorees


by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

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

2021 Best Lawyers: The Global Issue


by Best Lawyers

The 2021 Global Issue features top legal talent from the most recent editions of Best Lawyers and Best Lawyers: Ones to Watch worldwide.

2021 Best Lawyers: The Global Issue

The U.S. Best Lawyers Voting Season Is Open


by Best Lawyers

The voting season for the 31st edition of The Best Lawyers in America® and the 5th edition of Best Lawyers: Ones to Watch® in America is officially underway, and we are offering some helpful advice to this year’s voters.

Golden figures of people standing on blue surface connected by white lines

How To Find A Pro Bono Lawyer


by Best Lawyers

Best Lawyers dives into the vital role pro bono lawyers play in ensuring access to justice for all and the transformative impact they have on communities.

Hands joined around a table with phone, paper, pen and glasses

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?

How Palworld Is Testing the Limits of Nintendo’s Legal Power


by Gregory Sirico

Many are calling the new game Palworld “Pokémon GO with guns,” noting the games striking similarities. Experts speculate how Nintendo could take legal action.

Animated figures with guns stand on top of creatures

The Best Lawyers in Australia™ 2024 Launch


by Best Lawyers

Best Lawyers is excited to announce The Best Lawyers in Australia™ for 2023, including the top lawyers and law firms from Australia.

Australian Parliament beside water at sunset

Best Lawyers: Ones to Watch in America for 2023


by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

Inflation Escalation


by Ashley S. Wagner

Inflation and rising costs are at the forefront of everyone’s mind as we enter 2023. The current volatile market makes it more important than ever to understand the rent escalation clauses in current and future commercial lease agreements.

Suited figure in front of rising market and inflated balloon

A Celebration of Excellence: The Best Lawyers in Canada 2024 Awards


by Best Lawyers

As we embark on the 18th edition of The Best Lawyers in Canada™, we are excited to highlight excellence and top legal talent across the country.

Abstract image of red and white Canada flag in triangles

8 Different Types of Criminal Defenses in Law


by Best Lawyers

Learn about the different types of criminal defenses available in law, including innocence, self-defense, insanity and more. Protect your rights today.

Silver handcuffs laying on finger printed papers

Wage and Overtime Laws for Truck Drivers


by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

The Upcycle Conundrum


by Karen Kreider Gaunt

Laudable or litigious? What you need to know about potential copyright and trademark infringement when repurposing products.

Repurposed Products and Copyright Infringemen

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

Unwrapping Shrinkflation


by Justin Smulison

Through the lens of the United States, we take a closer look at the global implication of companies downsizing products while maintaining and often raising prices.

Chocolate bar being unwrapped from foil