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ASIC Whistleblower Policy Requirements More Onerous but 1 January Deadline Remains

What has happened?

ASIC has released Regulatory Guide 270 for Whistleblower Policies (see here). Despite concerns raised that the Guide's requirements are onerous and will require companies to once again amend their policy to ensure compliance, ASIC has not extended the 1 January 2020 deadline.

Following amendments to the Corporations Act earlier this year, public companies, large proprietary companies and proprietary companies that are trustees of registrable superannuation entities must have a Whistleblower Policy in place from 1 January 2020.

The Corporations Act prescribes that a Whistleblower Policy must cover information about: 

  • the protections available to whistleblowers

  • to whom disclosures that qualify for protection may be made and how they may be made

  • how the entity will support whistleblowers and protect them from detriment

  • how the entity will investigate disclosures

  • how the entity will ensure fair treatment of its employees mentioned in disclosures and its employees who are the subject of such disclosures

  • how the policy will be made available to officers and employees of the entity

  • any matters prescribed by regulations.

The Regulatory Guide now introduces additional requirements in relation to the content of policies (some of which were inferred, but not prescribed by the Act) including that a Policy must include:

  • a brief explanation about the purpose of the Policy

  • the types of wrongdoing that can be reported

  • the types of matters not covered by the policy (eg personal work-related grievances)

  • information about who a discloser can contact to obtain additional information before making a disclosure

  • how to make a disclosure, and the different options available for making a disclosure

  • information about how to access each option, along with the relevant instructions

  • the key steps an entity will take after it receives a disclosure, including how it will keep a discloser informed and how it will document, report internally and communicate to the discloser the investigation findings

  • how the entity will ensure its policy is widely disseminated to and easily accessible for disclosers (including by making the policy available on its public website).

The additional requirements introduced by the Regulatory Guide are onerous and prescriptive and unfortunately appear to be a shift away from "user friendly" policies that can be easily accessed and understood by employees and other eligible whistleblowers.

What Does it Mean? 

Companies are required to have a Whistleblower Policy in place by 1 January 2020. Failure to do so is an offence.

If your company has introduced a new Whistleblower Policy since the new laws came into effect on 1 July 2019, this policy may now need to be reviewed again to ensure compliance with the Regulatory Guide.

If your company still does not have a Whistleblower Policy or has not reviewed its Whistleblower Policy since the new laws came into effect in March, now is the time to act.

Now What?

We encourage all companies required to have a Whistleblower Policy in place by 1 January 2020 to review their policy for compliance with both the Corporations Act and ASIC's Regulatory Guide.

Copyright 2020 K & L GatesNational Law Review, Volume IX, Number 322


About this Author

 Michaela Moloney, Partner, Melbourne

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,...

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

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, Melbourne Victory, Melbourne Rebels, Melbourne Renegades, North Melbourne Football Club, Tennis Australia, Netball Australia and others across a broad range of commercial matters (including but not limited to, participation arrangements, sponsorship agreements, venue hire arrangements and general corporate (and corporate governance) advice). 

Ms. Carnegie is also member of the firm's global (and local) Women in the Profession committees at K&L Gates, on the Australian precedents committee and a member of our Income Partner Advisory Committee. 

Further, Ms. Carnegie is an active member of the corporate pro bono team at K&L Gates, and regularly provides advice to large not-for-profit and philanthropic organisations with a view to working hand in hand with them to provide corporate governance and ongoing general commercial advice. Ms. Carnegie collaborates with clients in the M&A, corporate advisory, sports and philanthropic sectors in order to provide strategic commercial advice as a trusted advisor. She has provided pro bono support to many not-for-profit organisations including the Reach Foundation, Save the Children, FebFast, Youth Substance Abuse Service, St Vincent's Hospital Art Gallery, Hands Across the Water Australia and others 

Ms. Carnegie is a Director and Company Secretary of the Melbourne Victory Football Club and is also a member of the Australian Football League Players Association (AFLPA) Accredited Agents Arbitration Panel. In early 2019, she joined the Women's Counsel of Football Federation Australia (FFA) and is on the working group for a new model of A League (soccer) in Australia (New Leagues Working Group (NLWG)) and has been advising on its recent commercial law endorsement. 

 Sarah Goegan Lawyer Labor, Employment and Workplace Safety

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.