Australian Whistleblower Regime

Under the recent amendments to the Australian whistleblower regime, certain entities must have compliant whistleblower policies in place by 1 January 2020 to avoid penalties

In July 2019, comprehensive changes were made to Australia's whistleblower protection regime that is contained in Part 9.4AAA of the Corporations Act 2001 (Cth) (Corporations Act). The legislative amendments were made to provide increased protections for individuals who report corruption, fraud, tax avoidance and misconduct within the corporate and financial sectors. 

Regulated Entities who are subject to the regime under the Corporations Act must assess their current protocols to ensure that they are compliant with the new amendments, as there are civil and criminal penalties that apply to breaches of the whistleblower provisions under the Corporations Act.  

Certain entities will also need to have whistleblower policies in place by 1 January 2020 which meet the criteria set out in the Corporations Act.

Whistleblower Policies

The Corporations Act requires certain types of Regulated Entities, such as public companies and large proprietary companies, to implement internal whistleblower policies setting out the protections for whistleblowers and how disclosures will be treated.

On 13 November 2019, the Australian Securities and Investments Commission (ASIC) released 'Regulatory Guide 270 – Whistleblower policies' for entities that must have a whistleblower policy under the Corporations Act (ASIC Guide). The ASIC Guide sets out a detailed list of matters that ASIC indicates must be included in a compliant whistleblower policy and also contains 'good practice tips and guidance' which are not mandatory. However, in our view, these good practice tips and guidance will set the benchmark for best practice for whistleblower policies.

Penalties

Breaches of the whistleblower provisions in the Corporations Act can result in the following civil and criminal penalties for individuals and Regulated Entities:

  1. failure to have a compliant whistleblower policy and provide the policy to officers and employees - up to 60 penalty units;
  2. breaches relating to protecting a whistleblower's identity - up to 6 months imprisonment; and
  3. victimisation of a whistleblower - up to 2 years imprisonment.

A Commonwealth penalty unit is $210 AUD at the time of publication, and is subject to revision on 1 July 2020.


Whistleblower Country Guide

For more detailed information about the whistleblower protection regime under the Corporations Act, please refer to the Australia Country Guide.

Disclaimer

This material is produced by Clayton Utz. It is intended to provide general information in summary form, current at the time of first publication. The contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought in particular matters.