Whistleblowing 101: Legal protections for Australian whistleblowers

Whistleblowing is crucial in a free society, helping uncover wrongdoing in the public and private sector, and exposing activities such as fraud, exploitation, harassment or dangerous and unethical actions. 

All companies in Australia must comply with whistleblowing protections. All companies should have arrangements in place for handling any whistleblower reports they may receive. 

Public companies, large proprietary companies and trustees of APRA-regulated superannuation funds must have a whistleblower policy. The whistleblower policy must include information about how to report concerns (both within and outside the company) and the protections available to whistleblowers. 

Australian legislation aims to provide both safeguards and entitlements to whistleblowers, incentivising disclosures around misconduct and shielding them from retribution and repercussions. 

Let’s look at some of the common queries around whistleblower protections.

Note: this article is a guideline only. For more comprehensive insight, review the following web pages from the ASIC.

Information Sheet 238: Whistleblower Rights and Protections (INFO 238)

Information Sheet 239: How ASIC Manages Whistleblower Reports (INFO 239)

Who qualifies as a ‘whistleblower’?

Simply put, the term ‘whistleblower’ can apply to:

• Current or former employees or officers of an organisation
• Individuals acting as suppliers or contractors
• Those associated with the company’s suppliers or contractors

Whistleblowing protection also extends to spouses and family members of the above.

What kinds of disclosures are safeguarded by the law? Which aren’t?

If a disclosure is made following the law, whistleblowers who report instances of misconduct or violations of the law committed by a company, its management, or its employees should be protected by law. 

To be eligible for protection, whistleblowers must have reasonable grounds to suspect the misconduct they’re reporting t.e. there must be a credible basis for their concerns that the company, its affiliates, or their officials or employees have engaged in misconduct, violated specific laws, or acted improperly.

If, however, your report of misconduct solely concerns a personal grievance in the workplace—interpersonal conflicts with coworkers, decisions regarding your employment status, or disputes over the terms of your engagement—whistleblower protections may not apply.

Note: if a personal grievance arises as a result of reporting misconduct (or if someone suspects you’ve reported or are planning to report misconduct), such circumstances may fall under whistleblower protections.

Who should I notify to activate whistleblowing protections?

In order to avail yourself of whistleblower protections, it is essential to report your concerns to the following entities:

• Individuals authorised by the company to receive whistleblower disclosures, such as dedicated whistleblower hotlines or recognised third-party such as Report It Now®
• Directors, officers, senior managers, auditors, or actuaries of the concerned company
• ASIC
• A legal practitioner, for the purpose of seeking legal advice or representation concerning whistleblower protections

Note: whistleblower protections concerning tax matters are outlined in tax law. Reports regarding tax avoidance behaviour and other tax-related issues are also afforded protection when reported to the Australian Taxation Office.

Can I submit a whistleblowing report anonymously?

Yes! You are not required to disclose your name or reveal your identity to receive protection as a whistleblower. This is why third-party whistleblowing platform providers such as Report It Now®—who supply anonymous reporting via a disclosure officer—are so important for managing ethical reports. 

How does the law protect my identity?

The law strictly prohibits the disclosure of your identity as a whistleblower, unless:

• You explicitly consent to it
• If such disclosure is necessary when referring your report to ASIC, APRA, or the Australian Federal Police
• For the purpose of investigating your report (and appropriate measures have been taken to minimise the risk of identification)

What about retaliation?

As a whistleblower, it is unlawful for anyone to cause you detriment, harm, or threaten you due to your reporting of misconduct or due to suspicions that you have or may report misconduct. 

Specifically, your employer cannot terminate your employment, demote you, discriminate against you, or subject you to harassment or intimidation because you reported misconduct or if your employer suspects you have.

Similarly, if you are a supplier or contractor to a company, the company cannot threaten your contract or business arrangements because of your report of misconduct or suspicions thereof.

In the event that such actions are taken against you, you have the right to seek compensation, reinstatement to your job, or other remedies through legal avenues.

Moreover, individuals cannot take legal action against you solely because you reported misconduct, nor can they enforce a non-disclosure clause in your employment contract or a settlement agreement to prevent you from reporting misconduct. 

You cannot face criminal charges for reporting misconduct, and individuals or companies cannot bring civil proceedings against you because of a report.

Note: Australian whistleblower laws do not grant immunity if you were involved in the misconduct you report, although your report itself cannot be used against you.

I’ve reported misconduct to my employer and now I’m facing retaliation. What should I do?

Remember, it is illegal for anyone to retaliate against you for reporting misconduct. If you experience detriment, harm, or threats due to your report, you have legal recourse.

If you suffer retribution as a result of making a disclosure, you can:

• Seek compensation through the court if you suffer any loss, damage, or injury as a result of making your report
• You can pursue reinstatement to your job or other remedies through legal channels

What is the process for making public disclosures?

Whistleblower protections apply if you report concerns about an emergency or matter of public interest to a journalist or parliamentarian, under certain conditions. However, making public disclosures through avenues like social media may not afford you the same protection.

INFO 238 provides detailed steps for protected disclosures to journalists or parliamentarians. It’s essential to carefully review the steps outlined in this document.

Before disclosing concerns to a journalist or parliamentarian regarding an emergency or public interest matter, you must first report them to ASIC or APRA, either through the online form or by contacting APRA.

Report It Now’s Whistleblowing Hotline Services

Report It Now® is an independent company committed to working with Australian organisations to provide best-practice ethical support, expert organisational guidance, and cutting-edge whistleblower hotline services and software.

Together, we can build a stronger, more ethical future for your organisation and its stakeholders.

To promote a culture of integrity and accountability within your organisation, schedule a consultation with Report It Now® today.