The Corporations Act and whistleblowers - video transcript
Transcript of video about the Corporations Act and whistleblowers, presented by Warren Day, ASIC's Office of the Whistleblower, uploaded 17 May 2016.
Who is a whistleblower?
In general, a whistleblower is an insider within an organisation who reports misconduct or illegal activity that has occurred within that same organisation.
However, for the Corporations Act to recognise and protect you as a whistleblower you must meet five criteria and do certain things when making your disclosure.
What are the criteria?
First of all, you have to be either a current officer, employee or contractor, or contractor employee of the company your disclosure is about.
Second, you have to make your disclosure to either the company's auditor or audit team member; a director, secretary or senior manager of the company; or someone authorised by the company to receive whistleblower disclosures; or ASIC.
Third, you must give your name.
Fourth, you must have reasonable ground to believe that the company is acting illegally.
And lastly, you must make your disclosure with good intentions – that is, you have to have 'good faith' in making that disclosure.
What should I do if I believe I am a whistleblower?
If you are unsure what protections may apply to you, we strongly encourage you to seek legal advice about your personal circumstances.
If you contact ASIC, we will try to provide information to assist you; however, only a properly accredited legal practitioner who understands your individual circumstance can give you the appropriate legal advice.
We encourage you to read Info Sheet 52 which is Guidance for whistleblowers for more information. This is especially if you are thinking of acting on the rights the whistleblower protections give to you.
If you believe you have information about potential breaches of the laws ASIC administers, please send it to us at ASIC through our online form for reporting misconduct.
You can find more information about this on our website asic.gov.au
How does the Corporations Act protect me as a whistleblower?
The Corporations Act contains certain protections for whistleblowers who meet the five criteria.
The protections encourage people within companies or with special connections to companies to alert the company through its officers or ASIC to illegal behaviour.
Protections for information provided by whistleblowers
The law calls the information whistleblowers provide a protected disclosure. The recipient of the information, which includes company officers, auditors and ASIC must keep this information confidential.
Also, they must not disclose either the information or the identity of the whistleblower unless that disclosure is specifically required or authorised by law.
Protections for whistleblowers against litigation
If you make a protected disclosure, the Corporations Act will protect you against being taken to court for making the disclosure or breaching your contract of employment or your employer terminating your employment.
You may also ask the court for an order to reinstate you, either in your original position or in another position at a comparable level.
Protections for whistleblowers from victimisation
It's a criminal offence to victimise a whistleblower because of their protected disclosure. As a whistleblower, you can also claim compensation for damages as a result of the victimisation from the offender. However, it's important to understand that the victimisation must be the result of a protected disclosure. And only a court can award that compensation.
In many cases, particularly in the context of private employment there may be arguments as to whether the conduct involved was victimisation as a result of the disclosure of information by the whistleblower or was done due to some other cause.
It is the whistleblowers responsibility to bring any action for compensation, and ASIC is not able to do this on your behalf. We strongly encourage you as a result of that to seek independent legal advice about your circumstances.