As a requirement of the corporate sector whistleblower reforms, formal whistleblower policies must now be in place. This applies to public companies, large proprietary companies, and proprietary companies that are trustees of registrable superannuation entities. In all cases whistleblower policies were required to be in place by January 1, 2020.
The Australian Securities and Investments Commission (ASIC) has issued Regulatory Guide 270 – Whistleblower Policies (RG 270) to assist entities to establish a whistleblower policy that complies with their legal obligations.
Background
The Corporations Act 2001 has been amended under The Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 to introduce a single, strengthened whistleblower regime that covers the corporate, financial and credit sectors. The new laws are applicable from 1 July 2019 and are contained in Part 9.4AAA of the Corporations Act 2001.
Legal Requirements
Under the new regime, the following entities must have a whistleblower policy and must make that policy available to officers and employees of the company [1]:
- Public companies.
- Large proprietary companies.
- A proprietary company that is the trustee of a registrable superannuation entity within the meaning of the Superannuation Industry (Supervision) Act 1993.
The policy must detail information regarding the following matters [1]:
- The protections available to whistleblowers.
- Which disclosures qualify for protection.
- Where (who to) and how such disclosures may be made.
- How your company will support whistleblowers and protect them from prejudice and harm.
- How your company will investigate disclosures that qualify for protection.
- How your company will ensure fair treatment of employees of the company who are mentioned in disclosures that qualify for protection.
- How your company’s whistleblower policy is made available to officers and employees of the company.
It is imperative to ensure your business remains compliant in consideration of the new legal requirements.
Further information
Regulatory Guide 270 also provides further guidance in the areas of:
- Who can make and receive a disclosure?
- Legal and practical protections for disclosers.
- Investigating a disclosure.
RG 270 also contains good practice guidance on implementing and maintaining a whistleblower policy that is tailored to the entity’s operations.
In addition to the release of RG 270, ASIC also grants an exemption for public companies that are not-for-profit, or charities with annual revenue of less than $1 million. These entities are not held to the requirement of enacting a whistleblower policy.
It is important to note that while not all companies are required to have a whistleblower policy, all companies are bound by the whistleblower protections in the Corporations Act 2001 which are effective from 1 July 2019. Please contact your local Accru advisor for further details.
[1] Section 1317AI of Corporations Act 2001
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