Australian companies must have in place a legislative compliant “eligible whistleblowers” policy and procedures following changes to the law. The new whistleblower legislation commenced on 1 July 2019 and involves severe civil and criminal penalties for employers who breach the protections provided to eligible whistleblowers. From 1 January 2020, certain companies will be required to have a whistleblower policy available to their Directors, officers and employees, which complies with the new Treasury Laws Amendment (Enhancing Whistleblower Protections) Act.
The stronger protections for whistleblowers under the new legislation include:
- anonymity (if required),
- increased immunities against prosecution,
- protection against detriment through victimisation; and
- penalties for non-compliance.
Whistleblowers will be protected when disclosing information/disclosable matters beyond that of criminal breaches, including breaches of tax laws, and laws administered by ASIC and APRA.
The new legislation will require Companies to undertake a thorough review and re-write of their existing whistleblower policy and procedures. To make your job easier, QAS International can provide you with a fully legislative compliant Whistleblower Policy and Procedures.
To ensure compliance Companies will need to implement a legislative compliant Whistleblower Policy and Procedures which address the following requirements:
Australian Legislative References and Requirements
- Treasury Laws Amendment (Enhancing Whistleblower Protections) Act, effective from 1 July 2019; and
- Australian Securities & Investments Commission (ASIC) Regulatory Guide 270 ‘Whistleblower Policies’ issued 13 November 2019.
To ensure legislative compliance the Whistleblower Policy and Procedures needs to address the following information:
- to whom disclosures that qualify for protection under the Corporations Act may be made, how they can be made, and to whom they can be made;
- the protections available to Whistleblowers of a disclosable matter, including protections under the Corporations Act;
- criteria for a discloser to qualify for protection as a Whistleblower under the Corporations Act;
- when a Whistleblower’s disclosure is deemed to be not a disclosable matter, and accordingly does not qualify for protection;
- measures and mechanisms for protecting a Whistleblower’s identity/anonymity where they qualify for protection as a Whistleblower;
- Whistleblower confidentiality and privacy;
- how the Company will support Whistleblowers and protect them from detrimental acts or omissions;
- compensation and remedies available for Whistleblowers;
- civil, criminal and administrative liability protection available for Whistleblowers;
- support and practical protection measures taken by the Company for Whistleblowers including protection measures taken for a Whistleblower’s protection from detrimental acts or omissions;
- how the Company will a receive handle/deal with and investigate protected Whistleblowers/ a Whistleblower Report;
- processes for risk identification, risk analysis and evaluation, risk control, risk monitoring and record retention (managing risk and compliance);
- establishing if the disclosure is a “Disclosable Matter ” (by definition) and by Law is entitled to protection;
- how the Company will ensure fair treatment of employees of the Company who are mentioned in protected disclosures that qualify for protection, or the Company’s employees who are the subject of disclosures (ie, to whom such disclosures relate);
- how the Company will ensure fair treatment of its employees who are mentioned in disclosures that qualify for protection,;
- how the Company will investigate disclosures that qualify for protection under the Corporations Act;
- factors that the Company will consider when investigating a Whistleblower disclosure;
- ensuring investigations follow best practice;
- ensuring fair treatment of individuals mentioned in a disclosure;
- Whistleblowing Process map documented;
- monitoring and reporting on the effectiveness of the Whistleblower Policy and Procedures;
- reviewing and updating the Whistleblower Policy and Procedures;
- how the Whistleblower Policy and Procedures is to be made available to Directors, Senior Managers, employees of the Company and other external interested persons/parties;
- how the Company Whistleblower Policy and Procedures will be meaningfully and effectively implemented and consistently applied throughout the Company in practice; and
- any other matters prescribed by the regulations from time to time.
QAS International also provides confidential services to Companies acting as their authorised external Whistleblower Contact Officer (or Whistleblower Protection Officer) for taking Whistleblower disclosures, review to determine whether concerns are ‘disclosable matters’ and thus qualify for protection under the Act, and undertaking investigations and reporting to Boards on findings, conclusions and recommendations.
QAS International is an independent whistleblowing service provider, providing services such as:
- a whistleblower contact officer,
- a whistleblower protection officer, and
- independent whistleblower disclosure investigation firm.
Benefits are that:
- Whistleblowers can:
- make their disclosure anonymously, confidentially, and outside of business hours;
- receive updates on the status of their disclosure while retaining anonymity; and
- QAS International can provide additional information to the entity/organisation to which the disclosure is relevant while retaining anonymity, privacy and confidentiality.