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ASIC: Guidance For Company Officers And Company Auditors On The Whistleblower Protection Regime

Date 30/06/2020

ASIC has released new information sheets to help companies, company officers and company auditors understand and comply with their obligations under the corporate whistleblower protection regime.

'Whistleblowers who speak up when they see wrongdoing provide a service to their employers. They can alert companies to changes that are necessary to comply with the law and improve their performance,' said ASIC Executive Director for Assessment and Intelligence, Warren Day.

'It is important that whistleblowers feel supported to speak up. ASIC encourages all companies and audit firms to put in place arrangements for handling whistleblower disclosures, even if the company is not required to have a whistleblower policy under the law.'

The Corporations Act 2001 (Corporations Act) provides strong protections for whistleblowers to encourage them to come forward with their concerns. Whistleblowers have the right to confidentiality, they are protected from reprisals, and they are protected from legal action for reporting their concerns.

Whistleblowers can access these rights and protections by reporting their concerns to a company officer or company auditor. Therefore, it is important for company officers and company auditors to understand their obligations and handle whistleblower disclosures in line with the requirements of the regime.

'The information sheets assist company officers and auditors deal with the requirements under the law as it relates to their important roles in a company', Mr Day said.

The information sheets provide guidance for companies and audit firms to develop arrangements for handling whistleblower disclosures that are effective and tailored to their circumstances.

The information sheets also provide guidance for company officers and company auditors on:

  • obtaining consent from whistleblowers to disclose their identity if required for investigations, and
  • how to address any employment issues involving a whistleblower while also handling their disclosure.

Information Sheet 246 Company auditor obligations under the whistleblower protection provisions (INFO 246) and Information Sheet 247 Company officer obligations under the whistleblower protection provisions (INFO 247) are available from ASIC's website.

Background

From 1 July 2019, the whistleblower protection regime in Part 9.4AAA the Corporations Act has been expanded to provide greater protections for whistleblowers who report misconduct about companies and company officers and employees.

The Corporations Act requires public companies, large proprietary companies, and corporate trustees of superannuation entities regulated by APRA to have a whistleblower policy. The policy must set out how those companies will support and protect whistleblowers and handle their disclosures.

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 has also released Information Sheet 238 Whistleblower rights and protections (INFO 238) and Information Sheet 239 How ASIC handles whistleblower reports (INFO 239) to assist potential whistleblowers understand their rights and protections under the Corporations Act and how ASIC will respond to whistleblower disclosures we receive.