After a long gestation, Corporations Act amendments passed by Australia’s Senate last week promise a whole new level of whistleblower protection in the private sector, with flow-on effects for the public sector, once approved by the entire parliament in February next year. 

Whistleblower protection is also featuring prominently in Australia’s ongoing debate over a new national integrity commission. It is especially topical given the role played by whistleblowers like Jeff Morris in uncovering the wrongdoing at the banking royal commission. 

Recently as well, the role of James Shelton and Brian Hood could be told. These were managers who stepped up to reveal appalling foreign bribery by Australia’s Reserve Bank-owned companies, Securency and Note Printing Australia – the nation’s biggest and worst corruption scandal. 

So the Australian government’s amendments to overhaul protections for corporate employees could not come at a better time. 

Previous plans to limit this to extreme, unlikely emergencies have been shelved. Instead, if employees blow the whistle at least to a regulator, and nothing is happening in 90 days, it is relatively simple for them to go public. 

There are some hoops to go through, and time will tell if they are still too tight. But this will be Australia’s most powerful driver yet, not just for companies to improve their culture and compliance but for regulators and law enforcement agencies to change their previous lax ways. 

A second big step is no shock to organisations already putting in place better whistleblowing policies. Public and larger companies will face the world’s first-ever requirement to not simply have a policy “on paper” but spell out exactly how they plan to “support and protect” those who speak up, before anyone starts taking out reprisals. 

Again, it’s a huge, culture-changing step. 

Many companies are quite good at getting their employees to reveal wrongdoing so they can deal with it themselves. Where they fall down is in making sure their people don’t come off second-best, or worse, as a result. With new requirements and a lot of new research on what to do, including from our own Whistling While They Work 2 project, that can change. 

Third, the amendments start to fix the problem that until now only deliberate, direct criminal “victimisation” of whistleblowers could ever be punished – something that’s almost impossible to prove, and consequently, never has been. 

In the future, any “detrimental” acts or omissions could result in an employer’s liability for compensation. Most importantly, this will include liability for a failure to prevent such impacts – such as by having no protection policy or failing to implement it. 

This is also a world-first, rolled out to all organisations. It follows on initial protections applying to union whistleblowers since 2016, making the organisation liable if it failed to fulfil ‘a duty to prevent, refrain from, or take reasonable steps to ensure other persons under the respondent’s control prevented or refrained from, any act or omission likely to result in detriment’ to a whistleblower. 

Now, as highlighted earlier this year in Transparency International’s new Practice Guide for Whistleblowing Legislation, it’s an approach set to be extended more broadly, to all companies and corporate bodies. 

There are devils in the detail. It is still likely to be tough for whistleblowers to activate these rights, which will have to be tested in the courts. 

In Australia, at least, part of the answer to that is still a whistleblower protection authority, which most agree is also needed. A properly resourced agency was recommended by last year’s unanimous report of the Joint Parliamentary Committee on Corporations – and features in crossbench proposals for a national integrity commission tabled in recent weeks. The government is still in the process of respond to that report. 

With these new corporate rules on the table, it’s even clearer how out of date Australia’s public sector whistleblower protections have come. 

But with these rules, there will be a new fighting chance for whistleblowers, and for corporate transparency and accountability to actually take hold.