Dementia Australia whistleblower policy

Purpose

This document is designed to ensure people who disclose wrongdoing can do so safely, securely, and with confidence that they will be protected and supported, and emphasises the importance Dementia Australia places on: 

1. its organisational values, including integrity and accountability; 
2. an ethical and transparent culture; 
3. its risk management and corporate governance framework; 
4. the deterrence of wrongdoing; and 
5. supporting individual endeavours including the reporting of wrongdoing under the consolidated regime of protections provided for in Pt 9.4AAA of the Corporations Act 2001 (Cth) (the Corporations Act) and under Part IVD of the Taxation Administration Act 1953 (Cth); and the Treasury Laws Amendment (Enhancing Whistleblower Protections Act 2019 (Cth) (collectively herein the Taxation Act). 

This Policy is available to all current and former Employees, Contractors, and Volunteers from the Dementia Australia intranet (DAISI) or https://www.dementia.org.au/. 

Scope 

This Policy applies to all current and former Dementia Australia and associated entity Employees, Contractors, and Volunteers and covers information about: 

1. The legislative protections available to whistleblowers under the Corporations Act and Taxation Act. 
2. To whom and how disclosures – qualifying for protection under the above legislation – may be made. 
3. How, for qualifying disclosures, Dementia Australia will: 
4. support and protect whistleblowers; 
5. investigate disclosures; and 
6. ensure fair treatment of any of its Employees, Contractors, or Volunteers mentioned in, or the subject of, disclosures. 

Importantly, Whistleblower laws and protections do not apply to work-related interpersonal conflict, or grievances related to terms and conditions of employment.  

Authority (or Principles) 

This Policy has been developed in consideration of the best available advice and guidance, in compliance with key legislation governing the use of charitable monies including, but not limited to, the Australian Charities and Not for Profits Commission Act 2012 (Cth); Corporations Act 2001 (Cth); Australian Securities and Investments Commission Act 2001 (Cth); Taxation Administration Act 1953 (Cth); and the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth). 

Definitions 

Terms in this policy are defined as: 

Policy 

1. Disclosures Qualifying for Protection Under the Corporations Act 

This Policy applies to and provides protections to Protected Whistleblowers. You will also be entitled to protection as a Protected Whistleblower if you get advice from a legal practitioner on the operation of whistleblowing protection laws. 

In limited circumstances, where a matter is of public interest or there is an emergency, a report may be protected if it is made to a journalist or a member of Parliament (refer Item 5.4 below). 

2. Whistleblower Protection 

2.1 Dementia Australia’s Commitment to Protecting Persons from Retaliation or Reprisals 

2.1.1 In accordance with Whistleblower provisions, Employees, Contractors, or Volunteers are encouraged to report any wrongdoing, including fraud or corruption, or suspected wrongdoing, which they become aware of during the performance of their duties for Dementia Australia. 

2.1.2 An Eligible Whistleblower can remain anonymous and still qualify for protection. 

2.1.3 If it becomes aware of a Whistleblower’s identity, Dementia Australia will take all reasonable steps to reduce the risk of broader identification of the individual. 

2.1.4 Qualifying Disclosure(s) protect the Whistleblower from: 

1. Civil, criminal, or administrative liability (including disciplinary action); 
2. Contractual remedy; and 
3. In some circumstances, from criminal proceedings as admissible evidence. 

3. Eligible Whistleblower 

In addition to this section, you should refer to Item 4, Applicable Matters, below. 

3.1 Eligibility Under the Corporations Act 

3.1.1 To qualify for Whistleblower protection under the Corporations Act as an Eligible Whistleblower, you must be a current or former: 

1. Employee or former employee of Dementia Australia or a related entity. 
2. Officer (director or company secretary), of Dementia Australia or a related entity. 
3. Volunteer or Contractor (or employee of a Contractor) who supplies or has supplied goods or services to Dementia Australia or a related entity. 
4. Associate of Dementia Australia or related entity (a person with whom Dementia Australia acts in concert). 
5. Spouse, relative, or dependent of one of the people referred to above. 

3.1.2 While you must hold or have held one of the above roles to access the protections, you do not have to identify yourself or your role, and can raise your concerns anonymously. 

3.2 Eligibility as a Tax Whistleblower 

3.2.1 As per the Taxation Act, you must: 

1. Be, or have been, in a specific relationship with the entity you are reporting about. For example, you are an Employee or former Employee, or a dependent or spouse of an Employee or former Employee; 
2. Report the entity to the ATO or to an eligible recipient who is someone in a position to take appropriate action – this includes someone appointed by Dementia Australia, or a related entity (for example, an internal auditor); and 
3. Consider that the information will help the ATO, or the recipient, perform their duties under taxation Law. 

4. Applicable Matters 

The section below sets out what is a Reportable Matter that will qualify for legal protection under the Corporations Act (or the Taxation Act, where relevant). Disclosures that are not about a Reportable Matter will not be protected under the Corporations Act or the Taxation Act and this Policy. 

4.1 Reportable Matter 

4.1.1 A disclosure will concern a Reportable Matter if an Eligible Whistleblower has reasonable grounds to suspect that the information you are disclosing about Dementia Australia, or a related entity, concerns: 

1. Misconduct or wrongdoing; OR 
2. An improper situation or circumstance(s). 

4.1.2 The report may be about Dementia Australia, or a related entity, or an Officer or Employee of Dementia Australia, engaging in conduct that: 

1. Breaches the Corporations Act; 
2. Breaches other financial sector Laws enforced by ASIC or the Australian Prudential Regulatory Authority; 
3. Breaches an offence against any other Law of the Commonwealth that is punishable by imprisonment for a period of 12 months or more; or 
4. Represents a danger to the public or the financial system. 

4.1.3 An Eligible Whistleblower who makes a disclosure must have 'reasonable grounds to suspect' the information to qualify for protection. This means that even if a disclosure turns out to be incorrect, the protections will still apply, provided they had 'reasonable grounds to suspect'. 

4.2 Personal Work-related Grievances 

4.2.1 Personal work-related grievances that do not involve a detriment caused to you as a Protected Whistleblower (or a threat of detriment) are not a Reportable Matter and are not protected under the Corporations Act or Taxation Act. 

4.2.2 A personal work-related grievance is one that relates to your current or former employment that has implications for you personally but does not have significant implications for Dementia Australia. 

4.2.3 An example of a work-related grievance that is not protected by law could include if you believe you have missed out on a promotion that you deserve or if you don’t like the managerial style of your supervisor. 

4.2.4 However, a work-related grievance may still qualify for protection under the law if (for example): 

1. it is a mixed report that includes information about a Reportable Matter (as well as a work-related grievance); 
2. Dementia Australia has broken Commonwealth laws which are punishable by imprisonment for 12 months or more or has breached or contravened any of the legislation listed in item 4.1.2 of this Policy or acted in a way that is a threat to public safety; 
3. the disclosure relates to information that suggests misconduct that goes further than the Whistleblower's personal circumstances; or 
4. the Whistleblower suffers from or is threatened with detriment for making a disclosure. 

5. How Do I Make a Report and Who Do I Report To? 

5.1 Making a Disclosure 

5.1.1 Reports can be made in person or by telephone, post or email. Reports can be made within business hours or outside business hours. 

5.1.2 If, at any time, you are not sure about whether to make a protected disclosure, you can obtain your own independent legal advice. Any discussions you have with a lawyer will be protected under this Policy and under law. 

5.2 Eligible Recipients 

5.2.1 A Protected Disclosure of a Reportable Matter must be made using any of the channels below (each is an Eligible Recipient of a Reportable Matter): 

1. an officer, director or senior manager of Dementia Australia or a related body corporate; 
2. an internal or external auditor of Dementia Australia or a related body corporate; 
3. (in relation to tax affairs) a tax agent of Dementia Australia or a related body corporate; 
4. Directly to the Dementia Australia Board Chair using whistleblower@dementia.org.au. 

If you are not sure who to make a disclosure to, you can contact the Dementia Australia Privacy Officer, PO Box 3021, Manuka ACT 2603 or Privacy@dementia.org.au before making a disclosure. 

5.3  Other Designated Bodies That Can Receive Disclosures 

5.3.1 Disclosures of a Reportable Matter may also be protected when made by an Eligible Whistleblower to: 

1. ASIC;  
2. APRA; 
3. the Commissioner of Taxation; or 
4. another Commonwealth authority prescribed by law. 

5.4 Public Interest Disclosure and Emergency Disclosure 

These additional categories of disclosure can be made by Eligible Whistleblowers to journalists and members of Parliament, but only if they comply with strict requirements. Dementia Australia recommends that you contact an independent legal adviser before making a public interest or an emergency disclosure. 

Public Interest Disclosure 

5.4.1 If a previous Qualifying Disclosure has been made and the Whistleblower does not reasonably believe that action is or has been taken and further disclosure is in the public interest, then the Whistleblower may make a public interest disclosure, provided that: 

1. At least 90 days has passed since the previous disclosure; and 
2. The Whistleblower gives a further written notification (including sufficient information to identify the previous disclosure), stating that the Whistleblower intends to make a public interest disclosure. 

5.4.2 A public interest disclosure is made directly to a member of Parliament of the Commonwealth, the Parliament of a State, or the legislature of a Territory; or a journalist (working in a professional capacity for a newspaper or magazine; a radio or television broadcasting service; an electronic service). 

Emergency Disclosure 

5.4.3 If a previous Qualifying Disclosure has been made and the Whistleblower does not reasonably believe that action is or has been taken, then the Whistleblower may make an emergency disclosure, provided that: 

1. They reasonably believe the information concerns a substantial and imminent danger to the health or safety of one or more persons or to the natural environment; and 
2. The Whistleblower gives a further written notification (including sufficient information to identify the previous disclosure), stating that the Whistleblower intends to make an emergency disclosure. 

5.4.4 An emergency disclosure is made directly to a member of Parliament of the Commonwealth, the Parliament of a State, or the legislature of a Territory; or a journalist (working in a professional capacity for a newspaper or magazine; a radio or television broadcasting service; an electronic service). 

5.5 Disclosure to a Legal Practitioner 

A disclosure of a Reportable Matter by an Eligible Whistleblower will also be protected if it is to a qualified legal practitioner for the purpose of taking legal advice or legal representation in relation to the operation of the Whistleblower provisions in the Corporations Act or the Tax Act. 

6. False reports

6.1.1  A Protected Whistleblower will still qualify for protection for a disclosure even if their disclosure turns out to be incorrect.  

6.1.2 However, anyone who knowingly makes a false report of a Reportable Matter, or who otherwise fails to act honestly with reasonable suspicion in respect of the report may be subject to recourse or disciplinary action, including dismissal. 

7. Anonymity When Reporting 

7.1 Options 

7.1.1 You may choose to remain anonymous when disclosing a Reportable Matter, over the course of the investigation and after the investigation is finalised. 

7.1.2 While you are encouraged to share your identity when making a disclosure, as it may make it easier for Dementia Australia to address your disclosure of a Reportable Matter and for Dementia Australia to communicate with you, you are not required to share your identity.  

7.1.3 If you do not share your identity, Dementia Australia will assess your disclosure in the same way as if you had revealed your identity. However, there may be some practical limitations in conducting the investigation if you do not share your identity.  

7.2 Anonymity Protections 

7.2.1 Dementia Australia will limit dissemination of disclosure(s) to personnel necessary to carry out any investigation. 

7.2.2 Will de-identify disclosure information, as appropriate, in accordance with Item 8 below. 

8. Protections for Protected Whistleblowers 

8.1 Confidentiality 

8.1.1 Disclosures from Protected Whistleblowers will be treated confidentially and sensitively. The protections apply not only to internal disclosures to Eligible Recipients, but to disclosures to legal practitioners, regulatory and other external bodies, and public interest and emergency disclosures. 

8.1.2 Once a report is received by a Dementia Australia representative (as Eligible Recipient), immediate steps will be taken to protect the identity of the Protected Whistleblower. This will include redacting the name and position of the Protected Whistleblower from any written record of the report and making sure appropriate document security is implemented. 

8.1.3 It is illegal for a person to identify Protected Whistleblowers or disclose information that is likely to lead to their identification. If you are a Protected Whistleblower, your identity and position (or any other information which would be likely to identify you) will only be shared if: 

1. you consent to the information being shared; 
2. the disclosure is to a recipient permitted by law such as the Commissioner of Taxation (in relation to tax matters). the Australian Federal Police or ASIC; or 
3. the disclosure is otherwise allowed or required by law (for example, disclosure to a lawyer of Dementia Australia to receive legal advice relating to the law on whistleblowing). 

8.1.4 In addition, for information likely to identify an Eligible Whistleblower, this may be shared if it is reasonably necessary for the purposes of an investigation (provided the information does not include the Protected Whistleblower's identity). In this circumstance all reasonable steps will be taken to reduce the risk that you will be identified.  

8.2 Protection against detrimental treatment

8.2.1 It is illegal for a person to engage in conduct that causes (or threatens) detrimental treatment to an individual in the belief or suspicion that a person has made, may make, proposes to make or could make a report of a Reportable Matter and where that belief or suspicion is a reason for the conduct.  

8.2.2 Detrimental treatment could include dismissal, injuring you in your employment, demotion, harassment, damage to your reputation, discrimination, disciplinary action, bias, threats, or other unfavourable treatment connected with making a disclosure as a Protected Whistleblower or Eligible Whistleblower. 

8.2.3 Dementia Australia will seek to ensure that Protected Whistleblower or Eligible Whistleblowers are not subjected to detrimental treatment because of making (or intending to make) a disclosure under this policy. To protect Protected Whistleblowers from detrimental treatment, Dementia Australia will: 

1. assess the risk of detriment as soon as possible after receiving a disclosure of a Reportable Matter; 
2. make sure Dementia Australia management are aware of their responsibilities to maintain the confidentiality of a Protected Whistleblower, address the risks of detriment and ensure fairness when managing the performance of, or taking other management action relating to, a Protected Whistleblower; and 
3. take practical action, as necessary, to protect a Protected Whistleblower from the risk of detriment and intervene if detriment has already occurred. 

8.2.4 If an Eligible Whistleblower believes that they have been subject to detrimental treatment, they should inform an Eligible Recipient immediately.  

8.3 Other Protections for Protected Whistleblowers

8.3.1 Protected Whistleblowers are protected from civil, criminal, or administrative liability (including disciplinary action) for making reports of Reportable Matters. No contractual right (including under an employment contract) can be exercised against a Protected Whistleblower to stop them disclosing a Reportable Matter. However, the protections do not grant immunity for any misconduct a Protected Whistleblower has engaged in that is revealed in their disclosure. 

8.3.2 If you are a Protected Whistleblower and the disclosure is to an Eligible Recipient or other designated body as set out above or is a public interest disclosure or emergency disclosure, the information you disclose also cannot be used against you in criminal proceedings or in proceedings for the imposition of a penalty (except if the proceedings are in respect of the falsity of the information).  

8.3.3 Protected Whistleblowers may also be entitled to seek compensation and other remedies through the courts if Dementia Australia fails to protect them from detriment, and they suffer loss or damage.  

9. How Will Dementia Australia Investigate Disclosures? 

9.1.1 Once a report of a Reportable Matter has been received from an Eligible Whistleblower, who has provided reasonable grounds for their belief that the Reportable Matter has occurred, an investigation of those allegations will begin as soon as practicable after the report has been received, if required. 

9.1.2 If Dementia Australia determines that the information disclosed doesn’t amount to a Reportable Matter, the Eligible Whistleblower will be, if practicable, informed of that decision. In some instances, reports may not be able to be responded to, for example, because they are anonymous reports. 

9.1.3 If an investigation is conducted, it will:  

1. follow a fair process; 
2. be conducted in as timely a manner as the circumstances allow; and 
3. be independent of the person(s) about whom an allegation has been made. 

9.1.4 Provided there are no restrictions or other reasonable bases for doing so, people against whom an allegation has been made will be informed of the allegation and will have an opportunity to respond to any allegation. That is, Dementia Australia will take steps to ensure fair treatment of any person who is the subject of the Reportable Matter report as well as the Protected Whistleblower. 

9.1.5 Investigations will be conducted promptly and fairly with due regard for the nature of the allegation and the rights of the people involved in the investigation. Dementia Australia recognises the importance of balancing the rights of the Eligible Whistleblower and the rights of people against whom a report is made in ensuring fairness. 

9.1.6 Where appropriate, Dementia Australia will report findings of an investigation to its Board and/or Finance, Audit & Risk Management (FARM) Committee. The method for documenting and reporting the findings of an investigation will depend on the nature of the disclosure – but may include a summary report of the findings. Any reporting of findings will have regard to applicable confidentiality requirements. 

10. Communications with the Protected Whistleblower

10.1 Considerations

10.1.1 Dementia Australia will ensure that, provided the claim was not submitted anonymously, the Protected Whistleblower is kept informed of the outcomes of the investigation of their allegations. This will be subject to the considerations of privacy of those against whom allegations are made and considerations of confidentiality affecting Dementia Australia. 

10.1.2 If the Protected Whistleblower is not an Employee of Dementia Australia, the Protected Whistleblower will be kept informed of the investigative outcomes (subject to privacy considerations as above), once the Protected Whistleblower has agreed in writing to maintain confidentiality in relation to any information provided to them regarding a report made by them.