Blue-collar crime is easy. You steal a car, they check the plates. You steal a phone, they track it. You attack someone, they run your DNA, your fingerprints, ask witnesses. You've left a trace.
White-collar crime is different. Mysterious and traceless. A conversation with friends over dinner. Moving numbers on a table. Signing checks and opening bank accounts. We don't have many tools to catch and prosecute white-collar crime. So we have to utilise the few tools we have to catch, prosecute, and adequately sentence white-collar criminals. White-collar criminals are still criminals. Their crimes are not victimless. Tax evasion, fraud, bribery. Not only do they affect people, they affect you. Your taxes, your money, your livelihood. What tool do we have to help us investigate and prosecute white-collar crime?
The Whistleblower.
Individuals with information. Who can trace the line from signature to misconduct to crime. To prove fraud, you have to prove the perpetrator had actual knowledge that what they were doing was wrong. To prove insider trading, you have to prove the individual had prior knowledge. How can you prove intent from a document? A signature? To catch insider trading, you need insider knowledge.
Which is why it's essential we don't prosecute individuals with information; we protect them. Fraudsters have a habit of firing those who prove their guilt. To counteract this, we have Whistleblower Protection laws.
And luckily, Australia has just overhauled our protections to make them stronger, more versatile, and harder to sneak around.
What's changing?
Well, a lot.
First off, there is no longer a "good faith" requirement to make a disclosure. When making disclosures under the previous regime, there was a qualifying requirement: all disclosures had to be made in "good faith." Effectively, this meant that an individual could be excluded from protection under the regime, based on their intent. All disclosures had to be made with pure motives and no thought to personal gain or another's demise. Lack of pure motives meant a lack of protection.But now, the good faith requirement as been struck out. All that is required is that the Whistleblower reasonably believes that the information they are disclosing is correct and that it demonstrates misconduct or an improper state of affairs. This shifts the focus: protection is offered based on veracity, not intent.
There are a few justifications for removing this requirement, but the major one is this: Motives are incredibly hard to identify. How do you prove that someone intended that their actions would adversely affect someone else? Our motives live inside our heads, far away from the eyes of the law.
And furthermore, why is motive important? If someone discloses information that reveals wrongdoing, why does it matter what their reasons are? As such, the qualification is based now on reasonableness: is the information correct? Does it demonstrate misconduct, criminal activity, or an improper state of affairs? That's all we need to know.
Other changes:
- If you are an employee, officer, or supply goods to a company, about which you're making a disclosure, you are an eligible whistleblower. Not only that - but if you're a spouse, relative, or dependent, you're now protected too.
- They've hiked up the fines. A company can be fined up to AUD$10.5 million OR 10% of their annual turnover for breaching the confidentiality of an eligible whistleblower's identity. For individuals, it's AUD$1.05 million. That is, as they say, a whopper of a fine.
- It's a violation of the regime not only to reveal information which discloses a Whistleblower's identity. It's also a violation to disclose information that's likely to lead to revealing the Whistleblower's identity.
There are a lot more changes to the Australian Whistleblower regime, and they are officially in effect. You should check them out; it's serious stuff. If you want further information on the changes to Whistleblower protections, download our Whistleblower factsheet here.
If you're worried your company might be at risk of getting slapped with that massive fine, not to worry. Yarno has recently developed a Whistleblower course that can equip you and all of your employees and all of your employees with the knowledge and strategies they need to protect Whistleblowers. Give Mark a call on 0401 872 305, or if you'd prefer, email him at mark@yarno.com.au for more information.
