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Check Your Whistleblower Policies

Friday 15 October 2021




The Australian securities regulator is concerned that the Australian may not have robust enough whistleblower policies.  
 
In a formal statement this week, the regulator said, “ASIC reviewed a select sample of whistleblower policies and is concerned the majority of those policies did not fully address the relevant requirements.”
 
This call from the regulator comes two years after the passage of Australia’s whistleblowing regime.  
 
This week the Australian Securities and Investments Commission (ASIC) Commissioner Sean Hughes said in a formal statement earlier this week, “We call on CEOs and RSE trustees to discuss this letter within your organisation and to think about the culture of speaking up in your workplace. If the issues we observed from our review are present in your policy, we expect you to address and correct them without delay.”
 
 
Hughes continues that the inchoate policies might result in the employees being unsure about their rights and protections.  
 
In ASIC’s letter to the industry, the regulator writes, “The most prevalent and concerning issues we observed in the policies we reviewed involved unclear, incomplete or inaccurate information about how potential whistleblowers can make a qualifying disclosure and about the protections available under the Corporations Act .”
 
 
 
The integrity of the individual
 
Not long before the change in Australia’s whistleblower regime Andrew McLeish of Stopline wrote in the 
GRC Professional:
 
So what are the motivators for reporting fraud in the workplace? I believe the real motivator is the individual and their beliefs. The cultural shift for reporting misconduct is evident with the number of reports being published in the news recently. In the past, it was commonly referred to as “dobbing” or telling on someone, but nowadays, people.
 
However, he also highlighted instances where employees have not reported wrongdoing because of the lack of clarity on the existing processes.  
 
McLeish argued that they then new legislation that would have still have been before the Senate:
So how do we change people’s perception of reporting workplace misconduct? How do we protect the whistleblower? The latest legislation, “Treasury Laws Amendment (Whistleblowers) Bill 2017”, which is currently before the Senate, have proposed significant changes in the protection of whistleblowers and the reporting of misconduct. The most important move with the new proposed legislation will be to cover the private sector and ensure consistency by bringing all private-sector legislation into a single Act.
 
Nathan Luker from Your Call told the 
GRC Professional just before the new legislation came into force that an employee’s willingness to speak up and trust their organisation were inextricably linked.  
 
In the industry letter, the regulator highlighted three main ways regulated entities can improve their whistleblowing policies:
 

  • Clearly articulate how a person can make a disclosure that qualifies for the legal protections for whistleblowers, including to whom 
  •  Carefully update their whistleblower policy to reflect the whistleblower protection regime that started on 1 July 2019 
  •  Accurately describe the legal rights and remedies whistleblowers can rely on if they make a qualifying disclosure, which are identity protection (confidentiality), protection from detriment, compensation and other remedies, and civil, criminal and administrative liability protection.