ASIC has announced it has commenced the first proceedings for alleged whistleblower victimisation.

ASIC has also published a report Good practices for handling whistleblower disclosures (REP 758) to help entities improve their arrangements for handling whistleblower disclosures, and ensure they are effective and encourage people to speak up.

The report sets out the good practices ASIC observed from its review of seven sample firms’ whistleblower programs from a cross-section of industries.

What firms should do

ASIC says firms should consider the good practices set out in the report and ask themselves:

• Strong foundation for the program: Have we established a strong foundation for our program? How is our program equipped to handle disclosures?
• Whistleblowing culture: Are whistleblowers using our program to provide valuable information? If not, what needs to be done to actively promote and grow trust in the program and ensure whistleblowers are protected?
• Resources and training: How have we prepared people involved in the program to protect whistleblowers and treat disclosures confidentially?
• Monitoring and review: How are we ensuring that our program is up to date and that we detect issues with its operation? How are we measuring its effectiveness?
• Use of information. How are we using and sharing information from disclosures to improve our operations?
• Senior executive accountability for the program: Who is accountable for our program and how do they discharge this responsibility? Do they have access to the right information for this purpose?
• Director oversight of the program: How are our directors overseeing the program? Do they have access to the right information for this purpose?

ASIC found that programs with thoughtful and well-publicised arrangements for protecting whistleblowers and handling disclosures received useful reports and tip offs about concerns and issues in the workplace. As a result, ASIC says those entities had greater opportunity to identify and address these concerns and issues at an early stage.

Legislation and guides

All companies in Australia must comply with the whistleblower protection provisions in Part 9.4AAA of the Corporations Act 2001. 

Since 1 January 2020, the Corporations Act has required public companies, large proprietary companies, and trustees of registrable superannuation entities to have a whistleblower policy that sets out matters and to make that policy available to its officers and employees.

Regulatory Guide 270 Whistleblower policies contains guidance and good practice tips on establishing and implementing a whistleblower policy and program.

ASIC Information Sheet 247 Company officer obligations under the whistleblower protection provisions summarises the obligations of company officers and senior managers under the whistleblower provisions.

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Author: David Jacobson
Principal, Bright Corporate Law
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About David Jacobson
The information contained in this article is not legal advice. It is not to be relied upon as a full statement of the law. You should seek professional advice for your specific needs and circumstances before acting or relying on any of the content.