ASIC reminds public companies, large proprietary companies, and corporate trustees of superannuation entities regulated by APRA that they are required to have a whistleblower policy and make it available to their officers and employees by 1 January 2020.

The requirement to have whistleblower policy is a key element of the Government’s reforms enacted in March 2019 to strengthen the whistleblower protections for the corporate sector.

Whistleblower policies must set out how the company will protect whistleblowers and investigate their concerns, and courts can have regard to a company’s whistleblower policy and how it has been implemented when deciding on compensation claims.

‘Whistleblower policies are an important component of corporate governance and can help promote a more ethical corporate culture. They encourage employees to speak up and alert management to changes that are necessary to address misconduct and improve their performance,’ said ASIC Commissioner John Price.

Background

The Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 amended the Corporations Act 2001 (Corporations Act) so that a single, strengthened whistleblower regime covers the corporate, financial and credit sectors. The new laws applied from 1 July 2019.

All companies are bound by the whistleblower protections in the Corporations Act; however only public companies, large proprietary companies, and corporate trustees of superannuation entities regulated by APRA are required to have a whistleblower policy.

In November 2019, ASIC released Regulatory Guide 270 Whistleblower policies (RG 270) to assist these companies to meet their obligations under the law to have a whistleblower policy. The guidance sets out the components that a whistleblower policy must include as required by the law. It also provides good practice guidance and tips to assist companies to implement and maintain policies that are tailored to their operations.

ASIC plans to survey whistleblower policies from a sample of public companies, large proprietary companies, and corporate super trustees during 2020 to review compliance with the legal requirements and the extent to which these companies are implementing good practices. This will be useful for us to inform the corporate sector about trends in handling whistleblowing and to further refine our guidance.

ASIC’s focus is to survey the nature and contents of whistleblower policies to better understand how companies are responding to the obligations rather than primarily being directed towards enforcement.

ASIC has also given relief for not-for-profit public companies limited by guarantee with annual (consolidated) revenue of less than $1 million from the requirement to have a whistleblower policy.

To provide guidance to whistleblowers on their rights and protections and how ASIC handles their reports, ASIC has previously updated information on our website and issued two information sheets:

• Information Sheet 238 Whistleblower rights and protections (INFO 238)
• Information Sheet 239 How ASIC handles whistleblower reports (INFO 239).

ASIC has established the Office of the Whistleblower and enhanced our internal processes for communicating with whistleblowers and dealing with their reports.

ASIC has provided funding and technical assistance to the Whistling While They Work 2 research project on corporate sector whistleblowing coordinated through Griffith University.