In the mad rush to Christmas, don't forget the compliance deadline for whistleblower legislation19 December 2019
Reforms to Australia’s whistleblower law came into effect on 1 July 2019 through the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act (Whistleblower Act) and some organisations are required to be compliant with a number of provisions by 1 January 2020.
The reforms expand the protections provided to whistleblowers under the Corporations Act 2001 and the Taxation Administration Act 1953. In short, the revised legislation provides for:
- anonymous disclosures
- emergency disclosures to members of parliament or journalists
- increased protection for victims through compensation provisions, protection from liability, and increased requirements of anonymity in disclosures
- an expansion of the people that can be eligible recipients of disclosures (it now extends to officers and senior managers)
- an increase in the scope of whistleblowers that can receive protection (it now extends to former employees, contractors, officers or associates, volunteers and certain family members of whistleblowers)
- protections for tax whistleblowers to make a protected disclosure about breaches of tax law
- eligible whistleblowers are no longer required to identify themselves to qualify for protection
- causing detriment to a whistleblower in relation to disclosure is now an offence, and
- some public companies, large proprietary companies and trustees of superannuation entities are required to establish and enforce whistleblower policies.
On 13 November 2019, the Australian Securities and Investments Commission (ASIC) released Regulatory Guide 270 Whistleblower policies (RG 270) to assist companies and other entities to comply with the new whistleblower laws.
Who must comply with the Whistleblower Act?
All non-profit organisations that are structured as companies limited by guarantee must comply with the whistleblower protection provisions. Non-profit incorporated organisations that are classified as trading or financial corporations must also comply. This may include incorporated associations, other bodies corporate, incorporated associations registered as Australian registered bodies and incorporated organisations that are registered charities.
Who must implement a whistleblower policy?
Some public companies (including companies limited by guarantee), large proprietary companies and trustees of superannuation entities must implement a compliant whistleblower policy by 1 January 2020. Fortunately, in order to reduce the compliance burden on smaller not-for-profits, ASIC has confirmed through RG 270 that not-for-profit organisations and charities with annual consolidated revenue of less than $1 million do not need to implement a whistleblower policy. However, these organisations must still comply with the general whistleblower laws outlined above and may still choose to implement a whistleblower policy.
For organisations that require a whistleblower policy, their policy must contain information about:
- the protections available to whistleblowers
- to whom disclosures may be made, how they may be made and how they will be investigated
- how the organisation will support whistleblowers and protect them from detriment and how it will ensure the fair treatment of employees who are mentioned in disclosures or to whom the disclosures relate
- how the policy is to be made available to officers and employees, and
- any matters prescribed by the regulations (of which there are none at the moment).
Organisations that fail to implement an appropriate whistleblower policy could face penalties of up to $12,600.
How we can help you to ensure compliance
If your organisation is required to comply with the whistleblower protections and/or implement a whistleblower policy, you should take steps to implement an effective whistleblower system that enables the investigation of complaints, in particular anonymous complaints. You should also provide adequate training to your staff and volunteers, and to those who may receive disclosures, about the new whistleblower obligations and the system you put in place.
We have created a compliant whistleblower policy template that non-profit organisations can purchase for a fixed fee and then tailor to suit the processes they decide to put in place within their organisation to ensure compliance. To purchase this policy or to obtain further assistance to ensure compliance with the whistleblower legislation, please contact us.