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1. What you need to know
2. What you need to do

What you need to know

• Private sector whistleblower disclosures can sometimes be covered by two different Commonwealth statutory regimes - the Corporations Act 2001 (Cth) (Corporations Act) and the Taxation Administration Act 1953 (Cth) (TAA). This particularly arises where a disclosure relates to the taxation affairs of a corporation.
• If a disclosure is covered by both regimes, it will be an offence to make on-disclosures about it contrary to either of the regimes.
• The regimes differ as to what on-disclosures are permitted. Specifically:
  • recipients of a qualifying disclosure which is protected under the Corporations Act cannot disclose the identity of the discloser to the Commissioner of Taxation; and
  • recipients of a disclosure which is protected under the TAA cannot disclose the identity of the discloser to ASIC.
• Accordingly, care needs to be taken to identify all applicable whistleblower regimes, and where more than one regime applies, to manage the risk of the regimes operating inconsistently.
• The relationship between the regimes is unclear and this creates uncertainties when regulatory notices are issued. This should be addressed by legislative amendment.

What you need to do

• Consider all potentially applicable whistleblower regimes when dealing with on-disclosure of whistleblower material, to ensure that information about the identity of a whistleblower is not provided to third parties,...

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