Whistleblower update from Michelle Huckel, Policy Adviser, Governance Institute of Australia

So Governance Institute have recently lodged a submission to ASIC. Can you tell us about that?

We lodged a submission which was responding to a consultation paper by ASIC on its draft regulatory guide on whistleblower policies.

What organisations or entities will need to have a whistleblower policy under the legislation?

Public companies, large proprietary companies and proprietary companies that are trustees of registrable superannuation entities will need to have a whistleblower policy.

When is it due to be implemented?

Relevant organisations are required to have a whistleblower policy and make it available to their officers and employees by 1 January 2020.

What is the intended purpose of ASIC’s new guidance?

The guidance is to help entities establish and implement a compliant whistleblower policy.

So what feedback did we provide to ASIC regarding the draft guide?

Our policy committees carefully considered the draft guide and considered that there were issues with it concerning its length (the draft guide is 50 pages in length), level of prescription and complexity.

The draft guide contains a mixture of mandatory requirements (must) and guidance (should). The good practice suggestions provided by ASIC throughout the draft guide exceed, in many cases, what is actually required by law.

We argued that it would be challenging for non-lawyers to understand the difference between what ASIC considers to be best practice or ‘gold’ standard and what is mandatory in order to comply with the Corporations Act.

What recommendations did we make?

We recommended that ASIC simplify the guide to make it more concise and less complex, that it clarify legal requirements as opposed to suggested best practice and include suggestions for smaller organisations on a whistleblower policy that is appropriate for their size, complexity and number of employees.

We also made some specific recommendations around the likely impact on charities and NFPs.

What were the charity and NFP suggestions?

We made the point to ASIC that the practical difficulties of complying with the 1 January 2020 deadline will likely be more challenging for NFPs and charities that are limited by guarantee.

We recommended that the NFP and charitable sector receive some extra assistance to meet any incoming compliance obligations, such as shorter, simpler and more relevant to that sector. I’d recommend having a look at the submission to read the particulars of our recommendations on this.

What has ASIC said regarding the date for release of the guide?

We understand that ASIC plans to issue its final regulatory guide in late October or early November of this year. We will keep you updated.

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