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INFORMATION SHEET 52

Whistleblowers and whistleblower protection


This information sheet explains:
reporting important information to ASIC
how we will communicate with you
who is a whistleblower
the protections available to whistleblowers under the law
how ASIC deals with information from whistleblowers.

Reporting important information to ASIC


ASIC values all information that members of the public give us, because it can be valuable
intelligence about issues and conduct occurring in the organisations and activities that ASIC
regulates.
You might have important information that provides evidence of a breach of the
Corporations legislation. You can report possible misconduct to us via our website at
www.asic.gov.au/complain.
If you do report possible misconduct to us, we will contact you by phone (if you have given
us those details) and follow up with you to obtain the information you have. We will keep
that information and your identity confidential, except if the law requires us to disclose that
information.
We recognise that you will probably have an ongoing interest in the matter and, if we decide
to take the matter further than just reviewing your information, we undertake to contact you
regularly to update you as best we can. We do not take action on every matter reported to us
(for more information on how we assess information given to us, see Information Sheet 153
How ASIC deals with reports of misconduct (INFO 153)). If a matter is actioned, a dedicated
Whistleblower Liaison Officer within ASIC will contact you regularly. However, for reasons
of procedural fairness, including not compromising our inquiries or unfairly damaging
someones reputation, we may not be able to provide much detail during the course of our
review or any subsequent investigation. For information about the issues involved in ASIC
commenting on investigations and enforcement actions, please read our Information Sheet
152 Public comment (INFO 152).

Information sheets provide concise guidance on a specific process or compliance issue or an overview
of detailed guidance.
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WHISTLEBLOWERS AND WHISTLEBLOWER PROTECTION

If you fall within the specific statutory definition of a whistleblower, you are also entitled to
certain immunities and protections under the Corporations Act 2001 (Corporations Act), but
you should seek separate legal advice about that. If you are concerned about protection and
are unsure if the law can protect you, we recommend that you seek your own advice from a
lawyer.
While the protections under the Corporations Act may not be available to all persons who
have such valuable information, we are still keen to receive such information to help us carry
out our regulatory functions. ASIC keeps confidential all information provided to us. We
consider all information from the public as potentially providing valuable insights into
possible misconduct that we may need to act on.

Who is a whistleblower?
In general, a whistleblower is a person, usually an employee, contractor or member of an
organisation, who reports misconduct or dishonest or illegal activity that has occurred within
that same organisation.
However, in order for you to be considered a whistleblower under the Corporations Act
and for the Corporations Act to provide you with protection as a whistleblower, you must
meet certain criteria and do certain things when making your disclosure.
1.

You must be either:


an officer (usually that means a director or secretary) of the company your
disclosure is about
an employee of the company your disclosure is about, or
a contractor, or the employee of a contractor, who has a current contract to supply
goods or services to the company your disclosure is about.

2.

You must make your disclosure to either:


the companys auditor, or a member of the companys audit team
a director, secretary or senior manager of the company
a person authorised by the company to receive whistleblower disclosures, or
ASIC.

3.

You must identify yourself when making your disclosure (this means giving your name
to the person or authority you are making the disclosure to).

4.

You must have reasonable grounds to suspect that the information you are disclosing
indicates that the company or company officer may have breached the Corporations Act
or the Australian Securities and Investments Commission Act 2001 (ASIC Act).

5.

You must make the disclosure in good faith.

How does the Corporations Act protect whistleblowers and


their information?
The Corporations Act contains protections for certain whistleblowers, including making it
unlawful to persecute a whistleblower for making a protected disclosure of information. This
protection encourages people within companies, or with special connections to companies, to
alert the company (through its officers), or ASIC, to illegal behaviour.
Not all the protections are things that ASIC can do to assist the whistleblower some require
the whistleblower to take action themselves.

Australian Securities & Investments Commission, February 2014


Visit our website: www.asic.gov.au
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WHISTLEBLOWERS AND WHISTLEBLOWER PROTECTION

Protection of information provided by whistleblowers


The Corporations Act sets out protections in relation to the confidentiality of the information
the whistleblower provides and some protections for whistleblowers themselves.
Information provided by whistleblowers is called a protected disclosure. Like all information
provided to ASIC in confidence, information provided by a whistleblower must be kept
confidential. Further, neither the information nor the identity of the whistleblower may be
disclosed unless that disclosure is specifically authorised by law.

Protections for whistleblowers against litigation


The Corporations Act also contains two principal protections for whistleblowers themselves.
The first of these is a provision protecting a whistleblower against civil or criminal litigation
(including a case for breach of contract) for disclosing protected information. If the
whistleblower is the subject of an action for disclosing protected information, they may rely
on this provision in their defence. The whistleblower provisions in the Corporations Act do
not give ASIC any special standing or specific power to act for a whistleblower who is the
subject of such proceedings.
Further, where a whistleblowers employment is terminated because of a disclosure made
under the Corporations Act, the whistleblower may ask the court for an order that they be
reinstated either in their original position or in another position at a comparable level. Again,
the whistleblower provisions of the Corporations Act do not give ASIC any special standing
or specific power to bring an application on behalf of a whistleblower in this regard.

Protections for whistleblowers from victimisation


The second protection under the Corporations Act for whistleblowers themselves is a
provision making it is a criminal offence to victimise a whistleblower because of a protected
disclosure made by the whistleblower. The Corporations Act also provides that if a
whistleblower suffers damage because of such victimisation, the offender may be liable to
compensate the whistleblower for that damage.
ASIC can and will carry out investigations of allegations of victimisation. However, given
our limited resources and the fact that other protections such as reinstatement of employment
are available, we will generally focus our resources on an investigation of the misconduct
reported by the whistleblower.
It should be noted that the legislation requires that the victimisation be the result of the
disclosure of protected information. In many cases, particularly in the context of private
employment, it may be very difficult to establish that the victimisation was solely the result
of the disclosure of information by the whistleblower.
It is important to note that it is the responsibility of whistleblowers to bring any action for
compensation, as the legislation does not authorise ASIC to do this on behalf of the
whistleblower. This is why we strongly encourage people who believe they are
whistleblowers to seek independent legal advice.

Get advice
It is important to get legal advice on whether you will be entitled to protection as a
whistleblower under the law. ASIC is not able to give personal legal advice and can only
provide general information on this issue. The information and examples in this information
sheet might not apply to your situation; we strongly encourage you to seek legal advice about
your personal circumstances. Only a properly accredited legal practitioner who understands
your circumstances can give you legal advice. This is especially important, given the
personal nature of the provisions.

Australian Securities & Investments Commission, February 2014


Visit our website: www.asic.gov.au
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WHISTLEBLOWERS AND WHISTLEBLOWER PROTECTION

How does ASIC deal with information from whistleblowers?


What happens when you report misconduct?
We value and assess all reports and information that we receive, but not every matter
brought to our attention requires us to take court action. As with all reports of alleged
misconduct we receive, any inquiries we make will initially focus on the breaches you have
disclosed.
We will contact you by phone (if you have given us those details) and follow up with you to
obtain the information you have. We will keep that information and your identity
confidential, except if the law requires us to disclose that information. You can find out more
about how we protect information we receive by visiting our website and reading Regulatory
Guide 103 Confidentiality and release of information (RG 103).

Our communication with whistleblowers


People who have inside knowledge of organisations are often well placed to provide accurate
and informative material and intelligence to regulators, such as ASIC, about potential
misconduct. Accordingly, we have a dedicated approach to reviewing and assessing the
material that people in those circumstances bring to us. In carrying out those tasks, we will
also seek to provide prompt, clear and regular communication to those people who might be
whistleblowers, subject to the limitation that much of our investigative work must remain
confidential.
Obviously, someone who approaches ASIC, often in difficult and stressful circumstances, to
provide us with inside information about potential misconduct within an organisation, may
do so at some risk to themselves. Accordingly, we give serious and dedicated consideration
to the matters they raise.
In the process of doing so, we will need to take an objective view of the information
provided and consider if the core misconduct is something we need to make further inquiries
about or take action on. Often these matters occur in the context of an employment dispute or
issue. We are likely not to focus on those issues, but the substantive Corporations Act issues.
If you are a whistleblower, we recognise that you will probably have an ongoing interest in
the matter, and while we cannot, for confidentiality reasons, provide much detail during the
course of our review or any subsequent investigation, we undertake to contact you regularly
to update you as best we can. As a matter is actioned, a dedicated Whistleblower Liaison
Officer within ASIC will contact you regularly.
If we decide not to take any further steps, we will communicate this to you, endeavouring to
explain the reasons why and give some guidance as to what you should do next. For
example, it may be that the information might more appropriately be provided to state or
federal police or another regulatory body.
However, if we commence surveillance or investigation activities, for operational reasons it
can be difficult to inform you (as with any person who has reported misconduct to ASIC) on
the progress or details of our actions (for more information, read INFO 152). However, we
will seek to update you on the progress of a matter on a regular basis or when we conclude
our review or actions. This update will likely come from officers within the teams who are
looking at the matters you have raised.

Australian Securities & Investments Commission, February 2014


Visit our website: www.asic.gov.au
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WHISTLEBLOWERS AND WHISTLEBLOWER PROTECTION

When we will act on your information


Generally, we do not act for individuals and we will seek to take action only where our
action will result in a greater impact in the market and benefit the general public more
broadly.
For information on our enforcement role and why we respond to particular types of breaches
of the law in different ways, see Information Sheet 151 ASICs approach to enforcement
(INFO 151).

Where to find more information


RG 103 Confidentiality and release of information
INFO 151 ASICs approach to enforcement
INFO 152 Public comment
INFO 153 How ASIC deals with reports of misconduct
You can read the whistleblower provisions of the Corporations Act by visiting the
Australian Attorney-Generals Departments legislation website, ComLaw at
www.comlaw.gov.au.
More information for company officers and company auditors: Find out how you
can set up proper internal processes for handling revelations from
whistleblowers.

Important notice
Please note that this information sheet is a summary giving you basic information about a
particular topic. It does not cover the whole of the relevant law regarding that topic, and it is
not a substitute for professional advice. You should also note that because this information
sheet avoids legal language wherever possible, it might include some generalisations about
the application of the law. Some provisions of the law referred to have exceptions or
important qualifications. In most cases your particular circumstances must be taken into
account when determining how the law applies to you.

Australian Securities & Investments Commission, February 2014


Visit our website: www.asic.gov.au
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