Protections are notionally available for whistleblowers in the private sector. However the reality is that in the overwhelming number of cases, their limitations mean that they are rarely successfully invoked.

The Corporations Act 2001 (Cth) seeks to confer protections on employees who give information relating to breaches of that Act or the Australian Securities and Investments Commission Act 2001(Cth). Whistleblowers reporting on breaches of these acts are said to be protected from defamation, civil and criminal liability. Protections include:

  • qualified privilege against defamation
  • preclusion from contractual or other remedies being enforced against the whistleblower
  • protection from civil and criminal liability for making the disclosure
  • the possibility of criminal sanctions being imposed on those who take reprisal action against whistleblowers.

However, there are a number of requirements that must be first satisfied prior to an individual being granted the protection, including that they must:

  • be an officer or employee of the company, or a person who has a contract for the supply of services or goods to a company, or an employee of the contracting company
  • provide their name before making the disclosure
  • have reasonable grounds for asserting that the company has contravened the relevant legislation;
  • act in ‘good faith’
  • make their disclosure to:
    • ASIC
    • an auditor of the company in question
    • a director, secretary or senior manager of the company
    • another person authorised to receive disclosures, such as an outsourced internal audit team.

In addition, it is important to note that the whistleblower protection regime under the Corporations Act imposes a number of limits, including:

  • the scope of individuals who are protected – for example, former employees are not protected
  • anonymity is not permitted – individuals must disclose their identity
  • only particular breaches are protected – “qualifying disclosures” only extend to the breaches of the Corporations Act and the ASIC Act. Breaches of other legislation may only be covered where secondary offences under those Acts have occurred.