Whistleblower reform: what accountants need to know

On 7 December 2017, the Turnbull government introduced a bill which would significantly reform Australia’s private sector whistleblower laws. The bill, if enacted, amends the Corporations Act 2001 and the Taxation Act 1953 to improve Australia’s corporate and tax whistleblower protections.

The government’s regulatory impact statement on the bill indicates that the reforms may lead to greater whistleblowing activity resulting in the early detection of illegal acts, misconduct and breaches of tax law. The amendments would apply to disclosures made on or after 1 July 2018.

In Australia, private sector whistleblower protections are considered to be inadequate, and well behind the public sector and leading international practices. In recent times, the media has reported a number of examples of whistleblowers who have exposed wrongdoing at great personal and financial cost.

Some of these whistleblowers report that they have been isolated, mistreated and victimised, suffering detrimental impact years after their disclosure has been investigated.

Under current laws there is no protection available for anonymous whistleblowers. What’s more – the parliamentary joint committee into whistleblowing (2017) found that “whistleblower protections remain largely theoretical with little practical effect in either the public or private sectors”.

The whistleblower reforms have been introduced to provide additional protection for corporate and tax whistleblowers, including those wishing to be anonymous. The reforms, if enacted, may also encourage the Australian business community to assess corporate governance frameworks, and to take stock of current whistleblower practices and procedures in a bid to expose corporate wrongdoing.

The role of accountants in whistleblowing

For accountants, whistleblowing includes additional layers of complexity. Under the amendments, not only would we be a potential “eligible recipient” or “discloser” within our own organisation (the same as anyone else), but we may also find ourselves on the receiving end of disclosures regarding a client’s conduct. The bill specifically allows for protected disclosures to be received by tax accountants and auditors of regulated entities and superannuation entities. If the bill is adopted, accountants will need to become familiar with its requirements, or risk facing penalties for potential inadvertent breaches.

What are the key changes?

The bill is set to change private sector whistleblowing as we know it in Australia. If the bill becomes law in its current form, here are the key changes accountants would need to know:

1. Whistleblowers: A broader group of persons will be eligible for protection. This will include former officers, employees, contractors and suppliers as well as associates and family members of these individuals.

2. Reportable conduct: A broader category of disclosures will be covered, including “misconduct, or an improper state of affairs or circumstances” at the company. This removes the uncertainty many whistleblowers experience in having to determine whether their disclosure is eligible for protection on the basis of contravening specific laws. However, it may also increase the compliance burden on companies who can expect to face more disclosures, some of which may be frivolous or vexatious.

3. Anonymity: Anonymous disclosures will be allowed for the first time. This means that companies should ensure they have appropriate procedures in place for managing anonymous disclosures. This is critical to ensure that an anonymous disclosure provides all the necessary information required to allow investigation of the concern, and ideally ongoing communication should be facilitated with the anonymous discloser.

4. Eligible recipients: Whistleblowers will be able to disclose to a wider range of persons. This includes their manager or supervisor, an officer of the company or their auditors as well as a third party authorised by the company. Disclosures can also be made to the media and members of Parliament where certain strict criteria are met.

5. Immunity: Immunity will be available to whistleblowers in respect of information that they disclose. Eligible whistleblowers are protected from civil, criminal and administrative liability in relation to a disclosure that qualifies for protection.

6. No “good faith”: There will no longer be a requirement for whistleblowers to make a report “in good faith”. This will be replaced by the need to have “reasonable grounds” to suspect misconduct or an improper state of affairs or circumstances.

7. Whistleblower policy: All public companies, large proprietary companies and proprietary companies that are trustees of registered superannuation entities must have a whistleblower policy in place. Those who fail to do so will face a penalty. The policy must set out appropriate internal reporting channels.

8. Confidentiality: Accountants should be aware that significant penalties will apply to individuals and companies who reveal a whistleblower’s identity without consent. A company could be ordered to pay a fine of up to $1 million, or an individual up to $200,000, for disclosing the identity of a whistleblower, or information that is likely to lead to the identification of the whistleblower. There is no requirement that the disclosure be intentional, so even accidental disclosures (such as a misplaced document or an email that goes astray) could lead to heavy fines.

9. Compensation: Compensation may be easier for whistleblowers (and others) to access.

i. The court may award financial compensation as well as other remedies such as reinstatement of employment. The bill also allows the court to order exemplary damages. It’s not just whistleblowers who can access this compensation but also individuals who are suspected of making a disclosure, or who propose to make, or could make a disclosure.

ii. In these claims, the onus of proof is reversed. This means that a company that has caused damage to a whistleblower must prove that they were not motivated by the fact that a disclosure was made.

10. New tax regime: A separate tax regime will be introduced to provide protections for whistleblowing on tax matters. The tax whistleblower regime covers any disclosure to the Commissioner of Taxation that would assist him in carrying out his duties. It also covers disclosures to other eligible recipients where the whistleblower has reasonable grounds to suspect misconduct or improper circumstances in relation to the entity’s tax affairs.

Our experience shows that whistleblowers will be more likely to come forward if there is a proper internal process in place that they know about and can trust. Whistleblowers should have a variety of avenues with which to raise concerns, including telephone, web and email. Better practice is to have an anonymous reporting avenue that is available 24/7. Many organisations use an independent external hotline service as a key part of their whistleblower program.

Are you and your clients ready?

Now is a good time for organisations to consider their internal whistleblower policies and procedures in preparation for the new legislation, due 1 July 2018.

Some questions to consider:

- Do you have a whistleblower policy in place that is well communicated and understood?

- Do you have processes in place to facilitate anonymous reporting?

- Do you have processes in place for protecting whistleblowers and responding adequately to disclosures?

- Have key senior management personnel been provided with training to respond appropriately to disclosures?

Lauren Witherdin, associate director, KPMG Forensic