INTHEBLACK September 2024 special edition - Flipbook - Page 31
“Most of our whistleblower
protections, even if they look good
on paper, are simply not working
effectively in practice when tested in
any major way, especially in any
difficult cases.”
DR AJ BROWN AM, GRIFFITH UNIVERSITY
their concerns, so they are essential to good risk
management and corporate governance.”
ASIC has initiated civil penalty proceedings against
companies and their directors in cases that involve
alleged breaches of the whistleblower provisions.
LaBouchardiere adds that her team “values the
people from inside companies and organisations who
come to us with reports of potential misconduct or
breaches of the law”.
CHANGE ON THE HORIZON
Several reviews of Australian whistleblowing
regulation are under way, including through the
Tax Administration Act 1953 and the regulation of
accounting, auditing and consulting firms in Australia
and the aged care sector.
New whistleblower laws commenced in Australia on
1 July 2024, relating to the Tax Practitioners Board (TPB),
and “extend whistleblower protections to individuals
who ‘blow the whistle’ about a related entity to us,
where they believe the information may assist us in
performing our functions or duties under the Tax
Agent Services Act 2009 (TASA)”.
In November 2023, Australian Attorney-General
Mark Dreyfus released a consultation paper on
public sector whistleblower reform. Dreyfus pledged
that “these reforms will address the underlying
complexity of the scheme and what steps can
be taken to provide effective and accessible
protections to public sector whistleblowers”.
However, Brown says the key to success will be to
conduct a review that has the right terms of reference,
goes beyond issues that affect the federal public
service and addresses the Corporations Act, the Tax
Administration Act and other whistleblowing regimes.
Recent scandals such as the Robodebt automated
debt assessment scheme and fraud related to the
National Disability Insurance Scheme (NDIS) signal
the need for a more coordinated whistleblowing
protection strategy, Brown adds.
“Those cases confirm that the protections will only
work if they are consistent and seamless across the
different public sector and private sector regimes.”
Corporate and public sector leaders also have a
crucial role to play.
In 2021, ASIC urged CEOs to review whistleblowing
policies that could in some cases be “unclear,
incomplete and inaccurate”.
LaBouchardiere has reissued that call, advising
corporate sector leaders to:
• clearly articulate how and to whom a person
can make a disclosure that qualifies for the legal
protections for whistleblowers
HANDLING DISCLOSURES
In 2024, ASIC published Good Practices for Handling Whistleblower Disclosures, a report that summarises best
practice based on a review of the whistleblower programs of seven large firms.
© Adobe Stock
The findings recommend that organisations:
• establish a strong foundation for the whistleblowing
program – for example, through procedures and
systems to embed the program’s requirements
• foster a culture and practices to support whistleblowers
• inform and train those involved in receiving or
handling whistleblower disclosures about protecting
whistleblowers and treating material confidentially
• monitor, review and improve the program, including
seeking feedback from whistleblowers
• use information from whistleblower disclosures to
address underlying harms and improve
company performance
• embed senior executive accountability for the program
• create frameworks to entrench effective
director oversight.
ASIC’s Claire LaBouchardiere encourages firms
to review the good practices identified in the ASIC
report “and consider how they can be scaled and
tailored to suit their firm’s arrangements”.
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