POLICY: WHISTLEBLOWER POLICY
Policy Number: MTA0014
Date adopted: July 2020
Authorised by: Board of Directors of Maluk Timor Australia
Date of reviews: N/A
Date of next review: July 2022
Reviewed by: Board of Directors of Maluk Timor Australia
Refer to Section 6 below for information on the process for policy review.
GOVERNANCE AND ACCOUNTABILITY STANDARDS:
- ACNC Standard 2 – Accountability to members ACNC Standard 3 – Compliance with Australian Law
LEGISLATION OR OTHER REQUIREMENTS:
- Corporations Act 2001
- Australian Securities and Investments Commission Act 2001
- Banking Act 1959
- Insurance Act 1995
- Financial Sector (Collections of Data) Act 2001
- National Consumer Credit Protection Act 2009
- Superannuation Industry (Supervision Act) 1993
- Life Insurance Act 1995
- Purpose: Why do we have a Whistleblower Policy?
The purpose of this policy is to outline how Maluk Timor Australia (Maluk Timor) will deal with whistleblowing disclosures made in accordance with the Corporations Act 2001 (Corporations Act) and the Taxation Administration Act 1953 (Tax Act).
To qualify for the protections available under the Corporations Act or the Tax Act you must be an eligible whistleblower, who discloses information to an eligible recipient, which is protected under that legislation. These principles are explained in this policy.
This policy will apply to all Maluk Timor’s activities regardless of whether they take place in Australia or TimorLeste. All Directors, contactors, employees and volunteers will abide by this policy.
3. Policy statement: Our commitment
Maluk Timor takes its compliance obligations seriously, and it wants to hear from you if you know something that would be a ‘whistleblowing disclosure’ under this legislation. This policy sets out the protections available to eligible whistleblowers, and Maluk Timor encourages you to report anything you know about wrongdoing as soon as possible after you become aware of it, to help us maintain our values and our commitment to ethical practice.
This policy is made available to Maluk Timor’s officers and employees. Maluk Timor can change this policy from time to time. It is not intended to be contractual in nature, but you will need to comply with this policy as an employee or contractor of Maluk Timor. It may be appropriate for Maluk Timor to depart from this policy where warranted in serious circumstances (such as, if there is a risk to a person’s life or safety).
This policy mainly describes whistleblowing disclosures to which the Corporations Act applies. You should refer to part 4.7 for guidance about disclosures under the Tax Act.
4.1. Who can make a Whistleblowing Disclosure?
You are eligible to make a whistleblowing disclosure to which the Corporations Act applies if you are, or have been:
- an officer or employee of Maluk Timor;
- a supplier of goods or services to Maluk Timor (including on an unpaid basis), or an employee of such a supplier;
- a director or secretary of a related body corporate of Maluk Timor; or
- a relative or dependant of any of the above people.
4.2. What is a Whistle Blowing Disclosure?
Whistleblowing disclosures – Corporations Act
A ‘whistleblowing disclosure’ under the Corporations Act can be made by an eligible person who has reasonable grounds to suspect that the information concerns misconduct or an improper state of affairs or circumstances in relation to Maluk Timor (or a related body corporate).
This includes (but is not limited to) where the eligible person has reasonable grounds to suspect the information indicates that Maluk Timor (or a related body corporate), or any of its officers or employees, has engaged in conduct that:
- a) constitutes an offence under, or contravention of any of the following legislation (or any instrument under them):
|Corporations Act 2001||Australian Securities and Investments Commission Act 2001|
|Banking Act 1959||Financial Sector (Collection of Data) Act 2001|
|Insurance Act 1995||National Consumer Credit Protection Act 2009|
|Superannuation Industry (Supervision Act) 1993||Life Insurance Act 1995|
- constitutes an offence against any other Commonwealth law punishable by 12 months’ or more imprisonment; or
- represents a danger to the public or the financial system.
For example, if you have reasonable grounds to suspect that a fraud, illegal money laundering, terrorism funding, violence or other criminal conduct, or conduct which would cause harm to a person, has taken place (or is taking place or may take place) then you should disclose that to Maluk Timor. This list is not exhaustive and other wrongdoing may be covered by this policy even if it may not be a breach of a particular law, for example, if it causes a significant risk to public safety.
Exception – Personal work-related grievances
A ‘personal work-related grievance’ is not a whistleblowing disclosure unless it has significant implications for Maluk Timor that do not relate to you, and:
- concerns conduct (or alleged conduct) referred to in points 3.1(a) to (c) above; or
- concerns victimisation or threatened victimisation to you, as outlined in point 6.4 below.
A ‘personal work-related grievance’ is a complaint or dispute in respect of your employment (or previous employment) with Maluk Timor, which has implications for you personally. For example, an interpersonal conflict between you and another employee, or, if you are dissatisfied about a decision relating to your employment (such as about transfer or promotion, the terms of your employment, discipline or termination).
When to use this policy
If you have a work-related grievance which is also a whistleblowing disclosure, you can refer to this policy.
Disclosures of a personal work-related grievance only are not protected under this policy or the Corporations Act. If you have a personal work-related grievance only, then you should refer to Maluk Timor’s Complaint/Grievance Reporting and Processes.
4.3. Making a Disclosure – Corporations Act
Making a whistleblowing disclosure to Maluk Timor
You can make a whistleblowing disclosure to which the Corporations Act applies by contacting the following people (Contact Officers):
- an officer or senior manager at Maluk Timor (or a related body corporate);
|Name & Position||Contact address:||Telephone|
(Chair, Finance, Risk,
Audit & Governance)
|Level 14, 60 Martin
Sydney NSW 2000
Level 14, 60 Martin
Sydney NSW 2000
- Maluk Timor’s auditor (or a member of the audit team);
|Name & Position||Contact address:||Telephone|
|Colleen Hosking||GPO Box4255 Sydney
|02 92646733||[email protected]
You should ensure that any email or correspondence that you send to a Contact Officer is marked ‘Strictly Confidential’.
You should not make a whistleblowing disclosure to a Contact Officer who has been involved in the conduct or allegations you are reporting. In that case, contact a different Contact Officer.
If you do not want to contact Maluk Timor, you can contact the Australian Securities and Investment Commission (ASIC) or the Australian Prudential Regulation Authority (APRA) to make a whistleblowing disclosure, and you should refer to their policy about how the disclosure will be managed and the protections that will be available to you.
Public interest and emergency disclosures (for example to a member of parliament or journalist) will only be protected if made in specific circumstances set out in the legislation. For example, before making a public interest disclosure you must first make a report to ASIC, APRA or another prescribed body, and you must wait at least 90 days before making the public interest disclosure. You should ensure you carefully follow the correct process, or your protections under the Corporations Act will be lost.
An eligible – person may disclose the information to a legal practitioner for the purpose of obtaining legal advice/representation in relation to the operation of the Corporations Act, and this disclosure will be protected under the Corporations Act. It is recommended that you seek legal advice before making a public interest or emergency disclosure.
Information to include in a whistleblowing disclosure
You can make a whistleblowing disclosure to Maluk Timor (or a related body corporate) anonymously or by using a pseudonym, and the protections under the Corporations Act will apply even if you choose not to identify yourself. If you choose to remain anonymous then Maluk Timor encourages you to provide contact details for a secure and anonymous method of communication so that we can contact you if needed.
If you choose to identify yourself, the Contact Officer is generally required to keep your identity confidential (see point 6.1 below for more information).
If you make a whistleblowing disclosure, you should provide reasonable details to assist the Contact Officer to determine the best course of action, such as:
- when and where the relevant events occurred (e.g. dates and times);
- details of anyone involved; and
- any supporting information (e.g. documents, file notes, emails, photographs).
4.4. Assessment and Investigation
Assessment of the disclosure
The CEO or Chair of Finance, Risk, Audit and Governance (FRAG) Committee will conduct a preliminary assessment, to determine whether your disclosure requires further investigation and whether this policy applies. If you have identified yourself to the Contact Officer and given the Contact Officer permission to disclose your identity to the CEO or Chair of FRAG, then they may contact you to obtain further information. If you do choose to remain anonymous, this can make it more difficult to make an assessment of and investigate the disclosure.
If your whistleblowing disclosure concerns the CEO, then Chair of the FRAG Committee will undertake the initial assessment.
The assessor will endeavour to complete the assessment within four weeks, but this will depend on the circumstances and nature of your disclosure.
An investigation will only take place if there is objective evidence to support the allegations, or, a reasonable suspicion that such evidence may be obtained through further investigation. The investigator appointed by Maluk Timor will determine whether the information in the disclosure is proven on the balance of probabilities (i.e. it is more likely than not that the alleged conduct has occurred). A formal investigation might involve third parties such as lawyers, accountants, consultants or specialist forensic investigators. Relevant evidence will be collected, which may include interviewing witnesses. The investigator will endeavour to complete the investigation within ten weeks, but this will depend on the circumstances and nature of your disclosure.
If a whistleblowing disclosure is proven, the investigator will report the outcome of the investigation to the appropriate decision-maker for further action. Where appropriate, the person who made the disclosure will be advised of the outcome, provided that the whistleblowing disclosure was not made anonymously and relevant contact details have been provided.
If the whistleblowing disclosures are not proven, but there is evidence of other inappropriate conduct, the matter may be referred for other action.
If the whistleblowing disclosures are not proven, and there is insufficient evidence of other inappropriate conduct, no further action will be taken and the person who made the disclosure will be advised accordingly, provided that the whistleblowing disclosure was not made anonymously and relevant contact details have been provided.
If you make a disclosure as an eligible person under this policy then you will be contacted with updates during the investigation process when appropriate stages are completed, as long as you have provided your contact details. The timing of updates will depend on the circumstances of the investigation.
Protection of identity and confidentiality
If you have chosen to reveal your identity to the Contact Officer when making a whistleblowing disclosure, the Contact Officer may ask for your consent to disclose your identity and/or information that might lead to your identification. For example, if this would assist with an investigation.
If you choose not to give consent, then the Contact Officer is only permitted to disclose your identity:
- to ASIC, APRA (or to the Commissioner of Taxation (Commissioner) in relation to a tax matter referred to in part 4.7) or the Australian Federal Police;
- to a legal practitioner to obtain advice or legal representation in relation to the operation of the legislation; or
- in limited circumstances required by law, for example, where ordered by a Court in legal proceedings.
It is a breach of the Corporations Act for the Contact Officer to disclose your identity to any other person without your consent.
If reasonably necessary, information that does not reveal your identity may be disclosed to investigate your disclosure. Maluk Timor will take all reasonable steps to reduce the risk that you will be identified as a result.
Protection of files and records
Maluk Timor’s records created from an investigation will be retained under strict security in the course of the investigation. Access will only be given on a ‘need to know basis’ to those persons directly involved in the investigation of the disclosure and managing any outcomes. Your identity will not be disclosed to any of those people, except with your consent or as referred to in point 6.1. Where appropriate, identifying information will be redacted.
If you have concerns about your work environment when you make a whistleblowing disclosure (or at any time after making the disclosure) then you should tell the Contact Officer immediately. The Contact Officer will discuss appropriate strategies with you to manage any performance impacts or other challenges arising from the disclosure or the investigation.
‘Victimisation’ is what happens if a person is subjected to detriment as a result of:
- making a whistleblowing disclosure; or
- someone else’s belief/suspicion that the person has made or will make a whistleblowing disclosure.
For example, it can include harassment or intimidation, termination of employment, injury in employment, physical violence, psychological harm, and/or damage to reputation or property.
Victimisation is strictly prohibited by Maluk Timor. You should immediately inform the Contact Officer if you are subjected to victimisation, or any threat of victimisation, so action can be taken.
Employees mentioned in a whistleblowing disclosure, or to whom a disclosure relates, also need to be treated fairly. No decisions should be made about any allegation against them without proper investigation. Their involvement will be kept confidential as far as is reasonably possible.
Protections under the Legislation
An eligible whistleblower has additional protections under the legislation:
- The whistleblower is not subject to any civil, criminal or administrative liability (including disciplinary action) for making a whistleblowing disclosure.
- No contractual or other remedy can be enforced, and no contractual or other right can be exercised against a person on the basis of the whistleblowing disclosure.
- If the disclosure is made to ASIC, APRA (or to the Commissioner in relation to a tax matter referred to in part 7) or is a public interest/emergency disclosure, then the information is not admissible in criminal proceedings or for the imposition of a penalty against a whistleblower.
- A whistleblower may be entitled to compensation for victimisation. Other remedies may also be available depending on the type of detriment suffered, for example, a Court may grant an injunction to stop victimisation, require an apology to be given, or to re-instate a whistleblower who has been victimised by termination of employment.
Note: Some of the protections referred to in this policy might not be available to you, to the extent you are found to have been involved in wrongdoing (such as, knowingly giving false information).
Involvement in wrongdoing
Maluk Timor may take disciplinary action against anyone found to have:
- victimised or threatened a whistleblower;
- disclosed information in breach of whistleblower protections; or
- lied or knowingly given false evidence in connection with a whistleblowing disclosure.
Note: If a whistleblower has properly made a disclosure in accordance with the Corporations Act, they are entitled to the protections under the legislation and this policy, even if the allegations are ultimately found not to be proven.
4.7. Tax Act
A whistleblowing disclosure can be made by certain eligible persons to certain eligible recipients under the Tax Act where:
- the whistleblower discloses information which they have reasonable grounds to suspect indicates misconduct or an improper state of affairs in relation to Maluk Timor’s tax affairs; and
- the whistleblower considers the information may assist the recipient to perform functions/duties in relation to Maluk Timor’s tax affairs.
If you are eligible to make a protected disclosure under the Corporations Act as outlined in part 4.1, then you are also eligible to make a protected disclosure under the Tax Act.
You can make a protected disclosure under the Tax Act to anyone at Maluk Timor listed in part 4.3, to Maluk Timor’s auditor or an audit team member, to Maluk Timor’s registered tax or BAS agent (if any), or to a Maluk Timor employee who has functions/duties that relate to the tax affairs of Maluk Timor.
A whistleblowing disclosure duly made under the Tax Act to Maluk Timor will generally be assessed and investigated in accordance with this policy, and whistleblowers will be afforded the protections set out in this policy, subject to any variations to this policy required to comply with the Tax Act.
A whistleblower can also make such a disclosure to the Commissioner, in which case you should refer to the Australian Taxation Office’s policies about how disclosures will be handled.
5. Information and Complaints
For more information about this policy you can contact the Chief Executive Officer.
If you think anyone at Maluk Timor (or a related body corporate) has breached their obligations of confidentiality to you in relation to any whistleblowing disclosure under the Corporations Act or the Tax Act, please immediately contact the Chief Executive Officer so action can be taken. If you do not want to contact Maluk Timor, you can contact ASIC, APRA, or the Commissioner (in relation to the Tax Act). You can also contact a legal practitioner for advice or representation.
6. Other related policies and procedures
|DOCUMENTS RELATED TO THIS POLICY|
|Policies||• Fraud Policy
• Delegations of Authority
• Code of Conduct
|Forms or other organisational documents||• The Constitution of Maluk Timor Australia
• Agendas and Minutes of meetings of the Board of Directors of Maluk Timor Australia
• Agendas and Minutes of meetings of the Finance, Risk, Audit and Governance Committee
6. Review processes
POLICY REVIEW FREQUENCY
This policy will be reviewed every 2 years, with additional periodic reviews as required.
RESPONSIBILITY FOR REVIEW
The Board of Directors is ultimately responsible for reviewing this policy and approving any changes. The Company Secretary is responsible for ensuring the review process is listed for discussion on the Board agenda.
The policy will be reviewed by the Finance, Risk and Governance Committee and then the Board. Notice of the review will be placed on the Board agenda and a copy of the current policy will be attached.
DOCUMENTATION AND COMMUNICATION:
Changes will be included in the minutes of the Board meeting and the soft copy of this policy will be updated accordingly. All hard copies will be retrieved and replaced with an updated policy duly dated. All relevant contractors and volunteers will be provided a copy of the updated policy.
7. Reference: Key terms and phrases
‘Maluk Timor’ means both Maluk Timor Australia and Associacao Maluk Timor.
‘Maluk Timor Australia’ means the Australian incorporated entity, Maluk Timor Australia (ABN 54 121 715 446).
‘Associacao Maluk Timor’ means the Timor-Leste incorporated entity.