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Whistleblowing


The Corporations Act 2001 (Corporations Act) protects certain whistleblower activities, and protects whistleblowers from persecution. These protections are designed to encourage people within companies, or with special connections to companies, to alert ASIC and other authorities to illegal behaviour.

Read our information sheet ‘Protection for whistleblowers’ which will help you understand who is considered to be a whistleblower and what kinds of protection whistleblowers may be entitled to under the Corporations Act.

Information for company officeholders and company auditors

Company officers, company auditors and other persons have legal obligations under the Corporations Act if they receive a revelation from a whistleblower. Unless those persons handle the revelation correctly they may inadvertently breach the Corporations Act if they tell an unauthorised third party, including other officers of the company or the audit partner. Any unauthorised revelation may trigger significant civil and criminal consequences.

More information for company officeholders

Find out more about how a company can prepare its officers for a whistleblower’s revelation

More information for company auditors
Find out more about how you can set up proper internal processes for handling revelations from whistleblowers.

Protection for whistleblowers

This information sheet will help you understand who is considered to be a whistleblower and what kinds of protection whistleblowers may be entitled to under the Corporations Act 2001 (Corporations Act).

From 1 July 2004 the Corporations Act protects certain whistleblower activities, and protects whistleblowers from persecution. These protections are designed to encourage people within companies, or with special connections to companies, to alert ASIC and other authorities to illegal behaviour.

If you are concerned about protection and are unsure about whether you are protected by the Corporations Act, you should seek your own professional advice from a lawyer or another suitably qualified professional.

What is a whistleblower?

The term ‘whistleblower’ has several meanings, but is usually used to refer to someone who alerts the authorities to misconduct from within an organisation.

Who is protected?

To be protected by the Corporations Act as a whistleblower, you must be:

  • an officer (usually that means a director or secretary) of the company about which you want to report;
  • an employee of the company; or
  • a contractor, or the employee of a contractor, who has a current contract to supply goods or services to the company.

You must also identify yourself. Anonymous reports are not protected under the Corporations Act.

What kinds of reporting are protected?

Only certain kinds of reports are protected. To be protected by the Corporations Act you must have reasonable grounds to suspect that the information you are reporting indicates that the company, or an officer or employee of that company, has or may have breached the Corporations Act or the Australian Securities and Investments Commission Act 2001 (the ASIC Act), and make the report in good faith.

To be protected you must make your report to:

  • ASIC;
  • the company’s auditor, or a member of the company’s audit team;
  • a director, secretary or senior manager of the company; or
  • a person authorised by the company to receive whistleblower disclosures.

How are whistleblowers protected?

Anyone who makes a protected disclosure is protected from civil and criminal liability for making the disclosure. For example, an employee who breaches a confidentiality clause in their employment contract in order to make a protected disclosure could not be terminated or sued by their employer for breaching that confidentiality clause. If you are terminated by your employer because you make a protected disclosure, the Court has the power to reinstate you.

On the other hand, reporting misconduct you participated in won’t give you immunity from liability for that misconduct. You may still be liable for any misconduct you took part in, regardless of whether you later report it as a whistleblower.

What happens if you are victimised?

The Corporations Act makes victimisation of whistleblowers a crime. If you are victimised because you have made a protected disclosure we may investigate and prosecute those involved in your victimisation. Someone who suffers damage as a result of victimisation may be entitled to seek compensation through the Courts.

How are disclosures protected?

Information provided to us in confidence is generally protected by the ASIC Act and remains confidential except where that Act permits its disclosure.

If you make a protected disclosure to someone other than ASIC, they also have a duty under the Corporations Act to protect the information you provide, including your identity, by keeping it confidential. It may be a criminal offence for someone who receives a protected disclosure to release details of the report, including the identity of the whistleblower; although they can pass the information on to ASIC, the Australian Prudential Regulation Authority or the Australian Federal Police.

Where to find more information

You can get more information about how we protect information we receive by visiting our website and reading our Policy Statement 103Confidentiality and release of information.

You can read the whistleblower section of the Corporations Act by visiting the Commonwealth Attorney-General’s Department’s legislation website, ComLaw at www.comlaw.gov.au .

Get advice

We can’t give you legal advice, so we can’t tell you whether you will be entitled to protection as a whistleblower under the law. Only a properly accredited legal practitioner who understands your circumstances can give you legal advice. The information and examples in this information sheet might not apply to your situation.

Source: Australian Securities and Investment Commissions: http://www.asic.gov.au/asic/asic.nsf/byheadline/Whistleblowing?openDocument

ABC Australia, Whistleblowing and the psyche: an anthropological perspective!, http://www.abc.net.au/rn/allinthemind/stories/2010/2901944.htm

Guests

Professor Brian Martin
Professor of Social Sciences
University of Wollongong
Wollongong, Australia.
http://www.bmartin.cc/

Dr Sandrine Thérèse
Honorary Research Fellow
School of Social Science
University of Queensland
http://www.socialscience.uq.edu.au/sandrine-therese

Further Information

Bluebird AR – the ABC’s interactive alternate reality drama
Get involved

All in the Mind blog with Natasha Mitchell – features EXTRA audio from this week’s interviews
You can comment on the program on the blog, or here on the program page directly too – it’s easy – just look for Add Your Comment above.

Presenter Natasha Mitchell on Twitter

Professor Brian Martin’s publications

Whistleblowers Australia
Australian advocacy group for whistleblowers

Publications

Title: The colonisation of scientific uncertainty: liminality and agency in science boundary work
Author: Sandrine Thére;se
Publisher: PhD Thesis, 2004.

Title: Shame, Scientist! Degradation Rituals in Science
Author: Sandrine Thérèse and Brian Martin
Publisher: (In Press) 2010

Title: Whistleblowers: Broken Lives and Organizational Power
Author: C. Fred Alford
Publisher: 2001, Cornell University
ISBN: 0-8014-8780-3

Title: The Psychology of Whistleblowing
Author: Joan E. Sieber
Publisher: Science and Engineering Ethics, Volume 4, Issue 1, 1998

Title: Battered Plaintiffs – injuries from hired guns and compliant courts (web article)
Author: Jean Lennane
Publisher: April 2000
URL: http://www.uow.edu.au/~bmartin/dissent/documents/Lennane_battered.html
Psychiatrist Jean Lennane is vice president of Whistleblowers Australia

Title: The Whistleblower’s Handbook – How to Be an Effective Resister
Author: Brian Martin
Publisher: Charlbury, UK: Jon Carpenter; Sydney: Envirobook, 1999. Out of print from 2008.
URL: http://www.bmartin.cc/pubs/99wh.html

Title: What Happens to Whistleblowers and Why
Author: Jean Lennane (in Klaas Woldring (ed.) Business Ethics in Australia and New Zealand: Essays and Cases
Publisher: Melbourne, Thomas Nelson, 1996
URL: http://www.bmartin.cc/dissent/documents/Lennane_what.pdf
Link is direct to a PDF file

Title: Suppression of dissent in science
Author: Brian Martin
Publisher: Research in Social Problems and Public Policy, Volume 7, edited by William R. Freudenburg and Ted I. K. Youn (Stamford, CT: JAI Press, 1999), pp. 105-135.
URL: http://www.uow.edu.au/~bmartin/pubs/99rsppp.html

Title: Ritual and current studies of ritual: Overview
Author: Bobby C. Alexander
Publisher: in S.D Glazier (ed), The Anthropology of Religion: A Handbook, Greenwood Press, Westport, 1997.

Title: Brain tumour risk in relation to mobile telephone use: results of the INTERPHONE international case-control study
Author: The INTERPHONE Study Group
Publisher: International Journal of Epidemiology, May 17, 2010
URL: http://ije.oxfordjournals.org/cgi/content/full/dyq079

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