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In my last article published on 18 May 2017, my colleague from Johnson Winter & Slattery, Tom Barnes, and I, argued the case for reforming whistleblower laws in Australia and India. Australia has now proposed a whistleblower protection model that can act as a blueprint for other common law countries, including India, who each look to enhance the protections to those who blow the whistle on corporate misconduct as a means to tackle the ever-present scourge of commercial crime, corruption and corporate illegality.

Australia’ s Whistleblower Protections Review

During 2017, a substantial review of Australia’ s whistleblower protection laws covering the private and not-for-profit sectors has been undertaken. In September 2017, the Parliamentary Joint Committee on Corporations and Financial Services( the Joint Committee) published its Whistleblower Protections Report( the Report). The Report was a result of several months of detailed examination by the Joint Committee of whistleblower protection laws throughout Australia. The Joint Committee received over 70 submissions from regulators, private lawyers, public lawyers, non-government organizations and individuals. Almost all of the submissions, bar one, called for substantial reform.

The Joint Committee found that across the private sector:

Whistleblower protections remain largely theoretical with little practical effect across sectors and across industries. This was due in large part to the near impossibility under current laws in Australia of:

• Protecting whistleblowers from reprisals( retaliatory action);

• Holding those responsible for reprisals to account;

• Effectively investigating alleged reprisals; and

• Whistleblowers being able to seek redress for reprisals.

The Joint Committee found significant inconsistencies existed not only between numerous Commonwealth public and private sector whistleblower laws but across different types of legislation that applied across different sectors. The Joint Committee also looked at the international initiatives

Robert R Wyld 1

Partner Johnson Winter & Slattery Sydney Australia

to enhance whistleblower protections as part of global moves to target corruption. The report looked at numerous submissions which addressed the state of“ corporate culture” within Australia, the perception of there being a poor corporate culture in Australia and rolling scandals that generate media and political commentary yet rarely result in any substantial reform. The importance of promoting an ethical culture of respecting those individuals who call out corporate misconduct and for action to be taken is as important in Australia as it is in India. The public in India, no less than the public in Australia, dislikes corporate misconduct and an attitude of“ let’ s shoot the messenger” as that is easier than dealing with the substantive issue.

A Model for Enhanced Whistleblower Protections

The Joint Committee published a series of wide-ranging recommendations which set out a comprehensive framework to address the inadequacy of whistleblower protection laws in Australia and to ensure that those individuals who blow the whistle in relation to any allegations of illegality or improper behavior are themselves valued and respected.

The model recommended by the Joint Committee included the following key features:

1. All private sector legislation for whistleblower protection should be included in a single act to ensure consistency across the private and notfor-profit sectors. This will promote a clearer framework for whistleblowers and business and be less of a regulatory burden than numerous laws covering different sectors with different requirements.

2. The definition of reportable wrongdoing and / or“ disclosable conduct” should be broad, to capture the breach of any Commonwealth, State or Territory law or an industry code that has the force of law or is prescribed under a law. Any definition should not require a technical approach to defining what conduct is or is not disclosable.

3. The definition of who is a protected whistleblower needs to capture former as well as current employees, contractors and agents and those working under a former or current contract of service for supply of goods or services. In addition, there need to be appropriate protections in favor of the recipient of information so action can be taken on the complaint.

Legal Era Nov 2017 | Page 63

IN FOCUS 63

IN FOCUS 63