On 22 May 2023, the Full Court of the Federal Court (Full Court) will hear submissions on the retrospective application of certain whistleblower protections as part of the proceedings in Watson v Greenwoods & Herbert Smith Freehills Pty Ltd (NSD288/2022) (Watson).
The hearing will likely involve a challenge to the Federal Court’s decision in Alexiou v Australia and New Zealand Banking Group Limited [2020] FCA 1777 (Alexiou), in which the enhanced whistleblower regime contained in the Corporations Act 2001 (Cth) (Corporations Act) was found to have limited retrospective application.
Until the Full Court hands down its decision, this issue is likely to cause short-term uncertainty for employers and employees in existing and contemplated proceedings, as well as the management of disclosures under the Corporations Act whistleblower regime.
A new whistleblower regime
On 1 July 2019, a more comprehensive whistleblower regime came into effect which consolidated whistleblower protections in the private sector by introducing a single legislative scheme under the Corporations Act, which both broadened and strengthened existing whistleblower protections (Enhanced Regime).[1] Amongst other things, the Enhanced Regime includes provisions providing for civil penalties if an individual or company victimises (or causes ‘detriment’) to a whistleblower because of a belief or suspicion that the whistleblower has made, proposes to make, or could make a disclosure.
Alexiou was the first...
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