It’s not too late to act Recent changes to Australia’s whistleblowing laws will take effect on 1 January 2020. By that time, public and large proprietary companies, as well as trustees of registrable superannuation entities, must have a compliant whistleblowing policy in place.
The changes to Part 9.4AAA of the Corporations Act this year, coupled with the ASIC Regulatory Guide 270 released in November 2019, make it unlikely that existing whistleblowing policies will comply.That means most organisations subject to the new laws need to either implement a new policy or revise the one in place.
This should not be ignored. In a post-Hayne Royal Commission world, regulators are better funded and more proactive in enforcement. We expect ASIC will take greater interest in the level of compliance from the start, especially as it continues to refer to whistleblowers for its investigations.
Is your organisation subject to the new whistleblower laws? The following entities must comply with the new laws and implement compliant whistleblower policies:
- Public companies: Generally this includes ASX listed entities, public companies limited by shares and companies limited by guarantee (including those used by non-profits and charities) .
- Large proprietary companies: A proprietary company is classed as large if it and any entities it controls meet two of the following thresholds:
- $50 million or more in consolidated revenue;
- $25 million or more in consolidated gross assets;
- 100 or more employees.
- Trustees of registrable superannuation entities: A registrable superannuation entity (RSE) is a regulated superannuation fund or an approved deposit fund or a pooled superannuation trust. Self-managed superannuation funds (SMSFs) are excluded from this definition.
If you are unsure whether you fall into one of these categories, please contact us for assistance.
Whistleblower and compliance risk ASIC has made it known that whistleblower risk must become a recurring management consideration when making decisions, in order to deter wrongdoing and promote ethical corporate cultures that include legal compliance.
It is easy for ASIC to make compliance checks by simply requesting information (which we are seeing more of) to show your organisation has a policy that complies.
ASIC has indicated there will be no extensions to the 1 January 2020 start date and that it plans to survey policies and review compliance from the outset. With ASIC’s “why not litigate” approach in mind, we say if you are not compliant already, you need to move quickly.
You still have time to comply – but you need to move quickly While January 1 is close, you still have time to comply with the new laws. We have developed a base whistleblower policy that can be quickly tailored to your organisation within days for a fixed fee.
What’s more, our employment and corporate law experts have extensive experience in corporate investigations and whistleblower matters. We can provide clarity and processes for your organisation to work with whistleblowers and deal with any misconduct, in a manner that complies with the new laws. We will help you simplify a process that can often get convoluted and complex.