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Changes in whistleblowing Legislation

Friday 29 June 2018


Warren Day, the Victorian Regional Commissioner and Senior Executive Leader of Assessment and Intelligence at the Australian Securities and Investment Commission (ASIC) spoke at the GRC 2018 Event Series in Sydney about amendments in the whistleblowing legislation.

Among the amendments he indicated that there will not going to be separate body that will be handling whistleblower reporting and that the whistleblowing regime will not consider award system for whistleblowers.


Earlier this year, at the
ASIC Forum, Jordan Thomas, an American whistleblowing advocate and partner at Labaton Sucharow said that the American regime rests on three pillars:


  • Report anonymously
  • Robust whistle-blower protections
  • And potential for monetary awards

Marie Macdonald who holds number board level positions, was against the award system and saw having the monetary awards system as disadvantageous because it meant that potential whistleblowers would be reporting straight to the regulators and the organisations itself would miss out key data that it might be able to use to turn the behaviour in the originations around.
 


Awards not appropriate
Day told attendees earlier this week that when it came to the awards scheme they did not think that it was appropriate.

“We have a view that rewards may not be appropriate at this time, it may be that in the future they are. I think to it is safe to say on the behalf of the commission we don’t see a situation where we have rewards on their own like they do in the US,” Day explained.

He said that the challenge is that in the US system the only reward that is delivered to the whistleblower is if there is successful prosecution.

“If you are whistleblower and you basically have been blacklisted and can’t get another job, let’s deal with reality, there is benefit to you, there is not compensation to you,” he explained further.

He also argues for the compensation system helping with that anti-victimisation aspect of the legislation.


 
No single agency
“We argued in our submission for single agency, a single triage agency, for whistleblowing, commonwealth has not pick that up, the government has not picked that up. They are effectively asking us to do that, so we are discussions at the moment about the number of people.”

He suggested that this means that there has been an expansion is two ways; the number of people and the number of categories and legislation.

The commencement of the Act will not be until October and Day believes that the requirement for policies will not happen until January. 



Polices should be lived
“I am concerned that whistleblowing policies will become something like iconography—it will be something calming that an organisation can hang on its wall and says to its staff ‘look at that we got a whistleblowing policy’.”

Day said that the ASIC really wants to see these polices as ‘living documents’ and part of the feedback that the staff can give about an organisation.