Whistleblowers and the Corporations Act - video transcript
Who is a whistleblower?
In general, a whistleblower is someone inside - or with a connection to - a company or organisation who reports possible misconduct or illegal activity that has occurred within that same organisation.
Whistleblowers can include current or former employees, officers, contractors and superannuation trustees. Spouses, relatives or dependants of these people are also covered under the whistleblower protection regime.
People in these roles can report their concerns anonymously and still be entitled to the whistleblower protections.
To access the legal rights and protections, a whistleblower must report their concerns to specific people within the company or organisation. These people are called 'eligible recipients'.
Eligible recipients are company directors, company secretaries, other company officers, and senior managers.
You can also report to the company's auditor, actuary or any person specifically authorised by the company to receive whistleblower disclosures. This can include a company's whistleblower hotline.
In addition, you are covered if you report your concerns to you lawyer or to ASIC, or to APRA - the Australian Prudential Regulation Authority.
Do the whistleblower protections apply to me?
Whistleblowers can access rights and protections under the law from when they report misconduct, either within the company or organisation, or externally to ASIC or APRA.
If you are unsure about whether or not you qualify for the whistleblower protections, we strongly encourage you to seek legal advice about your personal circumstances.
If you contact ASIC, we will try to provide information to assist you; however, only a properly accredited legal practitioner who understands your individual circumstances can give you the appropriate legal advice.
We encourage you to read ASIC INFO Sheet 238 Whistleblower rights and protections for more information. This INFO Sheet summarises the legal rights and protections for whistleblowers, and who can access them under the law. This is especially important if you are thinking of acting on the rights the whistleblower protections give to you.
If you believe you have information about potential breaches of the laws ASIC is responsible for, please report it to us through our online misconduct reporting form.
You can find more information about this on our website asic.gov.au
How does the Corporations Act protect me as a whistleblower?
The Corporations Act contains certain protections for whistleblowers.
Protections for information provided by whistleblowers
The people within companies or organisations who receive your whistleblower report must keep your identity and your information confidential.
They must not disclose your identity - or information likely to identify you - unless you give them consent to or they are otherwise allowed to under the law.
For example, they can disclose your identity if they are seeking legal advice about your report, and they can also provide your report to ASIC, APRA, or the Federal Police.
Protections for whistleblowers against court action
If you make a whistleblower disclosure, the Corporations Act will protect you against being taken to court for making the disclosure or for breaching your contract of employment.
Protections for whistleblowers from victimisation or detriment
It's a criminal offence to victimise or cause detriment to a whistleblower because of their disclosure, and civil penalties may also apply.
As a whistleblower, you can bring an action in Court for compensation for damages for any detriment you suffer - or are threatened with - for making your report. It's important to understand that the detriment must be the result of making your report.
If you are sacked for making a whistleblower report, you may also ask the court for an order to reinstate you to your role or in another position within the company at a comparable level.
In many cases, particularly in the context of private employment, there may be arguments as to whether the conduct involved was victimisation because of the report or was done due to some other cause.
It is the whistleblower's responsibility to bring any action for compensation. We strongly encourage you to seek independent legal advice about your circumstances.
Report of a personal work-related grievance may not be covered
You may wish to report misconduct by a company or organisation about your work‑related dispute. However, the whistleblower protections do not cover a report of misconduct solely about your personal work-related grievance.
Generally, a personal work-related grievance will include
- an interpersonal conflict with another employee
- a decision about your employment, transfer, or promotion
- a decision about the terms and conditions of your employment
- a decision to suspend or terminate your employment or otherwise discipline you.
Instead, you may have other rights and protections under employment or contract law. We encourage you to seek your own legal advice about how you can resolve your disputes solely about personal work-related grievance.
Where your concerns about your workplace dispute suggest broader misconduct by the company or organisation, you may be able to access the whistleblower protections. ASIC INFO Sheet 238 Whistleblower rights and protections provides further information about when you may be protected in these circumstances.