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ASIC Releases Draft Whistleblower Policy Guide

On 1 July 2019, the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Act) came into force. The Act broadened the scope of protections and remedies available to whistleblowers, and introduced the requirement for certain companies to have a whistleblower policy in place. We reported on the amendments in March, which you can read about here.

Earlier this month, Australian Securities and Investments Commission (ASIC) released a draft Regulatory Guide for Whistleblower policies. The draft guide comprehensively sets out the information that must be included in a company's whistleblower policy, as well as good practice guidelines on establishing, implementing and maintaining a whistleblower policy. The requirements are extensive, and the regulator has stated its expectation that companies have a "robust" yet "clear" policy to effectively deal with disclosures.

Under the Regulatory Guide, it is suggested that (among other things) a compliant whistleblower policy will need to detail the following:

  • who is an eligible whistleblower

  • types of reportable conduct

  • who is an eligible recipient of a protected disclosure (which includes both internal officers and external advisors such as legal practitioners, regulatory bodies, journalists and parliamentarians)

  • a requirement for a designated "whistleblower protection officer", or similar person responsible for protecting or safeguarding disclosers

  • a requirement for a separate designated "whistleblower investigation officer" or equivalent responsible for investigating disclosures

  • an outline of the measures the entity has in place to protect the confidentiality of a discloser's identity.

ASIC is conducting a consultation period seeking feedback on the proposed Regulatory Guide prior to 18 September 2019.

 In our view, the draft Regulatory Guide imposes fairly onerous requirements on companies that are required to have whistleblower policies, and goes further than required to protect whistleblowers and comply with the terms of the Act.

For example, the multitude of roles and responsibilities required to be allocated in a policy could confuse potential whistleblowers, rather than provide a clear and understandable process for making a disclosure. Also, the level of detail required may actually be counterintuitive to achieving the goal of the new laws, being to protect whistleblowers and make the process of disclosure clearer and more understandable to all stakeholders.

As the Regulatory Guide is only in draft form at this stage, in our view, companies ought to be considering and starting work in respect of any updates required to their whistleblower policies/regime. However, companies may not want to finalise the relevant documents until after the final Regulatory Guide is adopted (but prior to the legislative deadline for a compliant policy being adopted, as prescribed under the Act, being 1 January 2020).

Copyright 2019 K & L Gates

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About this Author

Caroline Carnegie Partner Melbourne Corporate/M&A Mergers & Acquisitions Private Equity Restructuring & Insolvency Sports Tax-Exempt Organizations/Nonprofit Institutions
Partner

Ms. Carnegie is a partner in the Melbourne corporate & transactional group and focuses her practice on mergers, acquisitions and disposals, contract preparation and negotiation, asset sales and other transactional advice (including start-ups and shareholder arrangements), across a broad variety of industry sectors. 

In addition to her vast range of experience in mergers and acquisitions, Ms. Carnegie is also experienced in advising on distribution and logistics arrangements, and has a sports law practice which sees her act for organisations, including Cricket Australia,...

61-3-9205-2019
 Michaela Moloney, Partner, Melbourne
Partner

Ms. Moloney has worked for a wide cross section of clients including employers in the public sector, health, education, retail, energy and manufacturing industries and has significant experience in all aspects of employment, industrial and discrimination law. She acts on a broad range of matters for employers including drafting and interpreting employment agreements and policies, managing employee issues arising out of sale of business and outsourcing transactions, assisting employers with the discipline of employees and termination of employment, negotiating collective agreements, managing long term injured employees, corporate due diligence and interpretation of restraint of trade provisions.

Ms. Moloney has a significant litigation practice and has successfully defended a number of large Australian employers in claims including unfair dismissal, discrimination, general protections and breach of contract in the state courts and the Federal Circuit Court of Australia and Federal Court of Australia.

Labour, employment, and work-safety are her primary areas of practice. Ms. Moloney also focuses in the sports-industry, as a secondary practice area with KLGates. She is admitted to the Federal Court of Australia, the High Court of Australia, as well as the Supreme Court of Australia. She also speaks Japanese fluently, helping Asian-based clients through her legal expertise with the firm. 

61.3.9640.4430
 Sarah Goegan Lawyer Labor, Employment and Workplace Safety
Lawyer

Ms. Goegan is a lawyer in our Labour, Employment and Workplace Safety group. She has experience assisting on a range of advisory and litigious matters for public, non-profit and private sector clients. Sarah has worked on employment, industrial relations, discrimination and workplace safety matters across all levels of the Victorian court and tribunal system, the Fair Work Commission, Federal Court and Federal Circuit Court.

61-3-9205-2130