Australia: Mandatory whistleblower policies must be in place by 1 January 2020

In brief - All public companies (including charities and NFPs), "large" proprietary companies (as defined in legislation) and trustees of "registrable superannuation entities" (not trustees of SMSFs) must have a specific whistleblower policy in place by 1 January 2020.

A whistleblower policy must address the latest changes in legislation and include:

• the protections available to a whistleblower
• how a whistleblower can make a disclosure
• how the company will support and protect a whistleblower
• how the company will investigate a disclosure, arrangements for fair treatment of employees mentioned in a disclosure
• how the policy is to be published within the company

There is a lot to cover and much depends on commercial decisions about each company's own situation.

Apart from the need for compliance in any event, the seriousness of this issue is emphasised by the recently increased potential penalties for breaches of the amended legislation.

The penalties for companies are the higher of 50,000 penalty units (approximately $10.5 million), three times the benefit derived or detriment avoided, or 10% of the company's annual turnover (capped at $525 million). For individuals it is 5,000 penalty units (approximately $1.05 million), or three times the benefit derived or detriment avoided.

ASIC's Regulatory Guide

ASIC is due to release its final Regulatory Guide later this month, or in early November. The guide will assist companies to finalise their policy.

An affected company needs to be planning to complete or update, and adopt by Board resolution, an appropriate policy as soon as the final ASIC guidance is available.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.