ASIC’s Office of the Whistleblower ensures that we record and assess the disclosures we receive from whistleblowers and that we communicate with whistleblowers as we undertake our inquiries. We also engage with stakeholders about implementing Australia’s corporate sector whistleblower protection regime.
From 1 July 2019, the whistleblower protections in the Corporations Act were expanded to provide greater protections for whistleblowers. From 1 January 2020, public companies, large proprietary companies, and corporate trustees of APRA-regulated superannuation entities must have a whistleblower policy.
This year, we dealt with 644 disclosures by whistleblowers, a significant increase compared to previous years. Around 73% of these disclosures related to corporations and corporate governance, including internal company disputes. We also dealt with matters related to credit and financial services and the conduct of licensees (22%), markets (4%) and other issues (1%).
ASIC is unable to comment on our assessment of, or investigation into, whistleblower disclosures, considering the strong confidentiality protections for whistleblowers. Following our preliminary inquiries, we assessed approximately 93% of disclosures as requiring no further action by ASIC due to insufficient evidence, no actionable breach being disclosed, or the breach being in the jurisdiction or remit of other regulators. In a number of cases, we referred the matter to another agency, law enforcement body, or third party (such as a liquidator) that was better placed to deal with the issue or was already taking action.
Guidance on the whistleblower protection regime
Following commencement of the Government’s reforms to the corporate sector whistleblower protection regime on 1 July 2019, ASIC’s Office of the Whistleblower worked to promote the reforms and ensure compliance with the regime. We also engaged with stakeholders and delivered 12 presentations to the financial services, professional services, legal and resources sectors.
ASIC Regulatory Guide 270 Whistleblower policies, released on 13 November 2019, provides guidance on how companies can establish, implement and maintain a whistleblower policy. Our guidance was informed by responses to Consultation Paper 321 Whistleblower policies (CP 321), released on 7 August 2019. We received 40 submissions to CP 321. Respondents recognised the importance of a robust whistleblower protection regime to encourage disclosure of wrongdoing and improve corporate culture and governance. Report 635 Response to submissions on CP 321 Whistleblower policies highlights feedback from submissions.
ASIC’s website contains updated information about the whistleblower protections, including Information Sheet 238 Whistleblower rights and protections, Information Sheet 239 How ASIC handles whistleblower reports, Information Sheet 246 Company auditor obligations under the whistleblower protection provisions, and Information Sheet 247 Company officer obligations under the whistleblower protection provisions.
Monitoring compliance with whistleblower policy
ASIC is monitoring compliance with the requirement for public companies, large proprietary companies, and corporate trustees of APRA-regulated superannuation entities to have a whistleblower policy, which commenced on 1 January 2020.
We have contacted relevant companies to advise them of their obligations and request a copy of their whistleblower policy. We have communicated any concerns in respect of policies and sought amendments to ensure that they comply with legal requirements and reflect ASIC guidance where relevant.