Lauren Witherdin and Elizabeth Ticehurst discuss the recently introduced Whistleblower Protections Bill 2017.
On 7 December 2017, the Federal Government introduced a Bill to strengthen Australia’s whistleblower protections law. The Bill proposes to amend both the corporate and taxation laws to put in place a comprehensive, but potentially overlapping series of safeguards for those individuals who disclose corporate or taxpayer misconduct. Parliament will not debate the Bill until after it next sits in February 2018, and the new law would not apply until 1 July 2018, but employers should be considering certain preparatory actions now.
The whistleblower’s right to confidentiality is a key tenet of the Bill. If enacted, these rules would cause the risk of significant civil penalties, and even criminal charges, for individuals and entities who breach the confidentiality of a whistleblower, or who engage in detrimental conduct towards an individual because that person has been, or is suspected of being a whistleblower.
A disclosure covered by tax whistleblower protections includes a disclosure by certain eligible individuals to the Commissioner of Taxation which would assist him in carrying out his duties. The protections also cover a disclosure to other “eligible recipients”, such as a director, secretary, senior manager, or member of the in-house tax team, other persons authorised by an entity to receive whistleblower disclosures, the auditor and the tax agent, where the information provides reasonable grounds for suspecting misconduct, or improper circumstances relating to the tax affairs of the entity. Thus, the tax whistleblower disclosures have a very wide scope of application.
It is possible that a disclosure relating to an entity’s tax affairs could also be covered by the whistleblower protections included in the Bill’s amendments to the Corporations Act 2001. In that case, it is not clear how any overlap might be dealt with.
At this stage, one of the key actions for companies, trusts and superannuation entities affected by the Bill is to ensure that those officers and employees who could be “eligible recipients” of a protected disclosure under the corporations and/or taxation laws, fully understand what their responsibilities would be. Given the potential for broad interpretation of “misconduct” and “improper circumstances”, taxpayer entities may wish to encourage those individuals to exercise particular care in dealing with any information they may receive.