Rachel Nicolson, a partner at law firm Allens, notes three key things employees and officers of Australian companies need to be aware of with the introduction of the new legislation:
- it is now easier to be protected as an eligible whistleblower;
- the requirement to maintain confidentiality of the whistleblower’s identity; and
- the need to avoid detrimental conduct to whistleblowers.
Nicolson says some barriers to whistleblowing have been removed with the new legislation.
“People protected under the laws include those who used to work at the organisation (as employees, contractors or officers) as well as family members and dependents of the organisation's employees, contractors and officers,” she says. (However, a customer complaint is not a whistleblower complaint.)
“A broader range of misconduct is now reportable - reporting misconduct or an improper state of affairs or circumstances in relation to your organisation could now be protected - think corruption, fraud, criminal behaviour, unethical behaviour and breaches of your company's policy.
“The new laws will protect anonymous whistleblowers and do not require whistleblowers to act in ‘good faith’ (ie, the whistleblower may hold a grudge against the person they are reporting in relation to), so long as they have a reasonable basis to suspect the information they are reporting.”
Of course every whistleblower is a human being and even with the new legislation for some it can be challenging and confronting to raise concerns.
Dennis Gentilin, now a director in Deloitte’s Governance, Regulation and Conduct practice, was a whistleblower in one of the largest foreign exchange trading scandals in Australian corporate history.
“It wasn’t until I was made aware of the gravity of the issue that I felt the need to act,” he says.
“My first instinct was to resign. But after discussing the situation with my wife and a respected work colleague, I once again raised concerns. My work colleague was instrumental, providing me with the confidence that on this occasion I would be listened to.
“The months and years that followed the incident were also trying. I appeared in subsequent court cases as a witness for the Office of Public Prosecutions, resulting in my identity being revealed to the public,” says Gentilin. “However, I was fortunate to be surrounded by some incredibly supportive work colleagues. They continued to believe in and support me and refused to let the incident act as a barrier to my future career prospects.”
Indeed, Gentilin stayed at the institution for more than a decade following the incident.
The new legislation has changed companies’ obligations and ANZ is also working with customers to make sure the implications are well understood.
But this is not simply a compliance issue: our experience and the research shows having employees who are prepared to speak up is essential to a healthy corporate culture and provides broad ranging benefits for both the company and society. We need to understand the “living culture” of our companies.
Clare Molan is Whistleblower Program Lead at ANZ