ASIC and whistleblowers - video transcript
Transcript of video about your ASIC and whistleblowers by Warren Day, ASIC's Office of the Whistleblower, uploaded 17 May 2016.
ASIC's primary role in relation to whistleblowers is to receive, assess and where appropriate investigate whistleblower disclosures.
We can also look into allegations that whistleblowers have been victimised. However, the protections under the Corporations Act consist mostly of private rights that the affected individual needs to take up independently.
What are the limitations to ASIC's role in relation to whistleblowers?
It is important to understand there are some things ASIC can't do for whistleblowers. The Corporations Act does not give ASIC any specific power to:
- act for a whistleblower who is being taken to court
- act for whistleblower who has lost their job as a result of a disclosure
- get compensation for a whistleblower for damages caused by victimisation.
ASIC doesn't decide who is and who isn't a whistleblower. If there is a dispute about this, the definition can only be decided by a court.
ASIC cannot provide you with legal advice or obtain or enforce the protections under the Corporations Act. This is something you need legal advice about.
Also whistleblowers in Australia are not eligible for awards or compensation for making protected disclosure under the laws as they currently are.
How does ASIC deal with whistleblower information?
At ASIC we value and assess all reports we receive from the public, but not every matter brought to our attention requires us to take action.
We will focus on the potential breaches you have disclosed.
Getting the information you believe relates to potential misconduct is important to us as it's likely to be really valuable to us.
We will contact you by phone if you've given us your phone number and follow up with you about what you have told us. We will keep that information and your identity confidential unless we are compelled to provide it or unless you agree. If this happens we will speak with you about that ahead of time and always seek to protect your identity and disclosure.
Can whistleblowers remain anonymous?
You can give us information anonymously but anonymous disclosures also don't qualify for the whistleblower protections. Also, it can be difficult to make further inquiries based on anonymous information only.
When will ASIC act on information?
All information we receive at ASIC, including those from whistleblowers is assessed by ASIC's Misconduct and Breach Reporting team.
This team will give you information about whistleblowers and the handling of whistleblower information and the Corporations Act. If you are, or we think you might me a whistleblower our assessment of your information will take an objective view of the information you have provided and if the core misconduct is something ASIC needs to take action on.
Often these matters take place in the context of an employment dispute or issue. We are likely not to focus on those issues but rather on the substantive Corporations Act issues.
Generally, we don't act for individuals and we will only take action where that action will benefit the general public more broadly.
How do we communicate with whistleblowers?
We recognise that you may have an ongoing interest in the matter and an ASIC Whistleblower Liaison Officer will contact you regularly to update you as best we can about our handling of the information you have given us.
Confidentiality prevents us from providing much detail, but if we decide not to take any further steps we will let you know and explain the reasons why and give some guidance to you as to what you should do next. For example, it may be that you should more appropriately provide the information to state or federal police agencies or another regulatory body
What is ASIC's Office of the Whistleblower?
ASIC has formed an Office of the Whistleblower to ensure that we at ASIC handle properly the information we receive from whistleblowers. Also, to ensure that we maintain regular contact with whistleblowers and update them on any decisions, within the limits of what we can and can't say.
The Office of the Whistleblower supervises ASIC teams' handling of whistleblowers but doesn't deal directly with whistleblower matters itself. It reports to the ASIC Commission bout ASIC's handling and actioning of whistleblower information and ensures we are communicating with whistleblowers appropriately and in line with our procedures.
So if you believe you are a whistleblower with information that relates to potential breaches of the laws ASIC administers you should send it to us through our online form which is available from our website asic.gov.au
Where can I find more information?
You can read the whistleblower provisions of the Corporations Act, especially Part 9.4AAA which deals with whistleblowers, by visiting the Australian Government's legislation website ComLaw.
Alternatively you can search for more information on whistleblowers on our website asic.gov.au