Following the commencement of the new whistleblower protections across Australia on 1 July 2019, relevant companies should now be preparing themselves for the upcoming commencement on 1 January 2020 of the mandatory requirement to have a whistleblowing policy. In preparation for the commencement of this new requirement, ASIC has released a draft regulatory guide the purpose of which will be to help these entities to establish, implement and maintain a whistleblower policy and related procedures. ASIC is seeking public consultation before the publication of the final document in October.
The New Whistleblower Policy Requirement
The requirement to have a whistleblower policy in place arises under section 1317AI of the Corporations Act 2001 (Cth) and will be enforced from 1 January 2020. The policy must inform employees and officers of the following:
- the protections that are available to whistleblowers
- to whom disclosures that qualify for protection may be made and how these disclosures may be made
- how the company will support and protect whistleblowers from detriment
- how the company will investigate disclosures that qualify for protection
- how the company will ensure fair treatment of employees involved in disclosures
- how the policy will be made available to officers and employees.
Failure to comply with section 1317AI is a criminal offence and may result in significant penalties.
The requirement to have a whistleblower policy from 1 January 2020 applies to all public companies, large proprietary companies, and proprietary companies that are trustees of registrable superannuation entities. Companies outside of these classifications are still required to comply with the other whistleblower provisions, including the strict confidentiality requirements and could be found liable for contravening provisions that prohibit causing or threatening to cause detriment to a whistleblower if that activity is engaged in by an employee. Accordingly, as we’ve noted previously, we recommend that companies not caught by the legal requirement to have a whistleblower policy in place, should nevertheless, as a matter of best practice, implement a policy and internal procedures to mitigate the risk of failing to comply with these obligations and incurring the significant penalties that apply. For further information, refer to our Whistleblower Resources Page.
ASIC’s proposed guidance is intended to assist companies to comply with the new whistleblower provisions and include draft ‘good practice guidance’. As the regulator responsible for enforcing the whistleblower provisions, the draft regulatory guide and guidance provide some early signals as to how ASIC will interpret these provisions.
ASIC will receive feedback from entities, their advisers and other interested stakeholders until 18 September 2019. CompliSpace is preparing to make a submission in relation to the draft regulatory guide (which can be found here). If you or your company would like to contribute or make a suggestion, please contact Katharine Wilkinson at email@example.com.