John Alexander (Bennelong, Liberal Party) Share this | Hansard source

Whistleblowing plays a critical role in uncovering corporate and tax misconduct. It is a key means of combating poor compliance cultures by ensuring that companies, officers and staff know that misconduct will be reported. The opaque and complex nature of corporate crime makes it difficult for law enforcement to detect abusive practices. In many cases, corporate crime is only detected because individuals come forward, sometimes at significant personal and financial risk.

Some of our biggest corporate scandals have only seen the light of day because of whistleblowers having the courage to stand up to their bosses. It is easy to underestimate the true bravery that this takes. Imagine having to turn your back on a company that has offered you employment and workmates who you may consider friends. Imagine having to put your salary at risk, the uncertainty and the ostracism. The easiest thing in the world would be to turn the other way. Yet whistleblowers come forward regularly, in the face of these challenges, to open up scandals to the light of public scrutiny and judicial processes. Blowing the whistle may be the right thing to do, but no-one could ever say it is the easy thing to do. This is why we need these amendments. The importance of protecting corporate whistleblowers has been recognised for many years. However, while legislative protections have formed part of the Corporations Act 2001 since 2004, they have been sparingly used and are increasingly perceived as inadequate having regard to advances in the public sector and overseas.

This bill, the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2018, is particularly pertinent seeing what we now know has been going on in Australia's financial sector over the last few years. Whistleblowers have been pointing out the misdemeanours conducted by banks for years, but it was only the Hayne royal commission which demonstrated the depth of the systemic problems within the system. We will never know how many potential whistleblowers there would have been in this industry if these reforms had been passed years ago, but there is always the possibility that details we have seen through the royal commission may have come to light sooner through the efforts of many brave informants. Had this happened, we may be many months ahead of where we are today. This is why supporting whistleblowers is so important for their welfare and for the strength of our organisations, corporations and even our financial system.

Despite the great pride we have in our whistleblowers, it surprised me to learn that currently there are no specific protections for tax whistleblowers. The range of secrecy and privacy provisions relied upon are incapable of guaranteeing absolute protection, which is not good enough. That is why, in the 2016-17 budget, the government announced greater protections for those who disclose information about tax misconduct to the Australian Taxation Office. This will further strengthen the integrity of Australia's tax system.

Active protection of whistleblowers to encourage them to make disclosures is essential, and the government is determined to ensure it has the right legislative settings in place to achieve this, while at the same time ensuring disclosures can be fully investigated and that procedural fairness is provided to those who may be the subject of a disclosure. That is why the government, led by the former Minister for Revenue and Financial Services, Kelly O'Dwyer, committed to creating more transparency and accountability in business by strengthening the current framework to ensure both corporate and tax whistleblowers can be confident of protection and have greater incentives to make disclosures.

This legislation delivers on the government's 2016-17 budget commitment to protect individuals who blow the whistle on tax avoidance behaviour, tax evasion and other tax misconduct. It also delivers on the government's commitment in Australia's first open government national action plan, which was released in December 2016. The Open Government National Action Plan 2016-18 was developed collaboratively by government and civil society. The plan consists of the packaging of 15 commitments that aim to advance transparency, accountability, public participation and technological innovation in Australia. Stronger whistleblower protections are the first commitment of the plan, and it is designed to support the plan's objective of enhancing Australia's strong reputation for responsible, transparent and accountable business practice.

The government's commitment is to ensure that Australia has appropriate protections in place for people who report corruption, fraud, tax evasion or avoidance and misconduct within the corporate sector. This will be achieved by introducing whistleblower protection for people who disclose information about tax misconduct to the Australian Taxation Office and the strengthening and harmonising of corporate whistleblower protections with those available in this public sector. The legislation delivers on the government's commitment, and it creates a single, comprehensive whistleblower protection regime covering the corporate, financial, insurance, superannuation and credit sectors. It also establishes a new tax whistleblower protection regime to encourage and protect tax misconduct disclosures.

This will not be the first time this government has increased the protections for whistleblowers. On 21 November 2016, the parliament passed amendments to the Fair Work (Registered Organisations) Act 2009, the RO Act, with significantly strengthened whistleblower protections for people who report corruption or misconduct in unions and employer organisations. This builds on work done in 2013, when the parliament put in place protections for public sector employees through the Public Interest Disclosure Act 2013, which sought to promote the integrity and accountability of the Commonwealth public sector. This whistleblower act will align with these two whistleblower acts to ensure that there is a broad and consistent spectrum of protections for whistleblowers, no matter what sector they work in.

Whistleblower protections have formed part of the Corporations Act since 2004. However, they have increasingly been perceived as inadequate, having regard to advances in the public sector and the 2016 amendments to the Fair Work (Registered Organisations) Act 2009. The reforms of the whistleblower bill strengthen and harmonise whistleblower protections with those available in the public and registered organisations sector. Some key areas of the bill that align with protection in the public and registered organisations sectors are outlined below.

The whistleblower bill provides protections for current and former employees and officers, as well as anonymous disclosures, bringing into alignment the Public Interest Disclosure Act and the Fair Work (Registered Organisations) Act 2009. The whistleblower bill repeals and substitutes the good faith test with an objective test requiring that a discloser has reasonable grounds to suspect the relevant disclosable conduct. This reform aligns Public Interest Disclosure Act and Fair Work (Registered Organisations) Act 2009.

As with the Public Interest Disclosure Act, qualifying disclosures entitle whistleblowers to protection from exposure of their identities and immunity from civil, criminal and administrative liabilities from making the disclosure. Protections are available for whistleblowers who make 'emergency' or 'public interest' disclosures, where certain preconditions are satisfied. This closely follows the Public Interest Disclosure Act, with adjustments for the corporate context.

The whistleblower bill provides protections for those who suffer threats or actual reprisals consistent with the Fair Work (Registered Organisations) Act 2009; that is, protections are available where a threat or reprisal is taken against a person because the offender believes or suspects that the person or any other person made, may have made, proposes to make or could make a protected disclosure. All regimes allow a whistleblower to seek a range of civil remedies through a court, including an apology, injunction, reinstatement order and compensation for loss or damage and costs. The reforms of the whistleblower bill also provide a definition of 'detriment' that closely follows the Fair Work (Registered Organisations) Act 2009. A whistleblower may claim compensation or other remedies on the basis that they have suffered detriment because a company breached a duty to them. This is to align with the protections in the Fair Work (Registered Organisations) Act 2009.

These reforms are essential to ensuring all Australians who need to blow the whistle on corrupt behaviour can do so without fear of reprisals and be confident that the perpetrators of the crimes they bring to light will be brought to justice. Without whistleblowers within organisations calling out the crimes of those groups, a huge number of crimes would go unreported. But paramount amongst our considerations must be the welfare of the person who puts themselves at risk by uncovering these crimes. They put themselves, their families and their livelihoods on the line, and, if we take their information without protecting them, we are not worthy of their courageous actions. I congratulate the government on bringing forward this bill, acknowledging the support it has received from other parties, particularly Rex Patrick in the Senate, and I look forward to this coming into law and helping whistleblowers across the country.

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