(1) This Protected Disclosures Policy (Policy) and the corresponding Protected Disclosures Procedure (collectively referred to as the Protected Disclosures Framework) implement a national framework for the making of Protected Disclosures consistent with the Corporations Act 2001 (Cth). (2) The Protected Disclosures Framework sets out a process for reporting illegal, corrupt or unethical conduct occurring within ACU. The disclosure can be made anonymously, and the identity of the Discloser will be kept confidential (except in certain permitted circumstances). ACU is committed to ensuring that anyone who reports such conduct is not victimised as a result. (3) Protections are available under this Protected Disclosures Framework and at law provided that: (4) In this Policy: (5) In Australia, various pieces of legislation protect whistleblowers from negative treatment including the Corporations Act 2001 (Cth) and Taxation Administration Act 1953 (Cth) (Legislative Whistleblower Framework). Other jurisdictions have their own whistleblowing regimes and anyone to whom this Policy applies must also comply with those laws to the extent they apply to them. (6) One of the aims of this Policy is to comply with ACU’s legislative obligations to provide information about the protections available to whistleblowers, including the protections under the Legislative Whistleblower Framework. This Policy is to be read subject to those statutory protections. No provision in the Protected Disclosures Framework shall be read as preventing an Eligible Whistleblower from making a disclosure to an Eligible Recipient in accordance with the Legislative Whistleblower Framework. (7) A Protected Disclosures or ‘whistleblower’ regime is an important tool for detecting Reportable Conduct. It is essential to the achievement of good corporate governance. (8) There are many benefits to an effective Protected Disclosures or ‘whistleblower’ regime within an organisation including: (9) ACU is committed to a culture of corporate compliance and the promotion of lawful and ethical behaviour and transparency in commercial, legal and other stakeholder dealings. ACU expects Officers, Staff, Members and Affiliates to act in accordance with the law at all times, to behave professionally and to uphold the ACU Mission, Identity and Values and Code of Conduct for Staff in undertaking their duties and activities on behalf of, or in association with, ACU. (10) This Policy reflects ACU’s commitment to identifying and investigating Reportable Conduct and to support and protect Eligible Whistleblowers. (11) A Disclosure Receiver or Eligible Recipient is required to manage Reportable Conduct in accordance with the Protected Disclosures Framework or the Legislative Whistleblower Framework, as applicable. (12) ACU is committed to protecting and respecting Disclosers and Eligible Whistleblowers to the extent permissible by law in accordance with the Protected Disclosure Framework and the Legislative Whistleblower Framework. It is committed to enabling appropriate Disclosures of matters properly characterised as Reportable Conduct to be made by Eligible Whistleblowers or Disclosers without fear of identification or Detrimental Action subject to: (13) In accordance with the Legislative Whistleblower Framework, and in line with the ACU Mission and policies, Disclosers who make reports properly characterised as Protected Disclosures in accordance with the Protected Disclosures Framework, will be treated with dignity and respect and protection against Detrimental Action. ACU is committed to ensuring that anyone who reports such conduct is not victimised as a result. (14) The purpose of this Policy and the Protected Disclosures Procedure is to: (15) This Policy applies to Eligible Whistleblowers or Disclosers as defined in Section 2 of this Policy. ACU encourages disclosures of Reportable Conduct to any of the Eligible Recipients or a Disclosure Receiver, as defined in Section 2 of this Policy. (16) As a condition of working for ACU, ACU Staff are required to comply with any lawful directions made by ACU in respect of this Policy. This Policy is not intended to be contractually binding and does not form part of any contract the Staff Member may have with ACU. (17) This Policy encourages reporting of the types of Reportable Conduct defined in Section 2 of this Policy (which may not necessarily be unlawful), provided the Discloser has reasonable grounds for their concern. (18) Concerns should not be reported under this Policy if they are more appropriately raised under another ACU policy or instrument, such as the Enterprise Agreement (including a Personal Work-related Grievance defined in Section 2). (19) A Disclosure can be made to any of the Eligible Recipients or a Disclosure Receiver as defined in Section 2 of the policy. This Disclosure should be made in accordance with the process outlined in the Protected Disclosures Procedure. (20) A Disclosure of Reportable Conduct can be made anonymously. However, to enable ACU to properly investigate and respond to Disclosures, ACU encourages Disclosers to provide their name when making a Disclosure. (21) If an anonymous Disclosure is made, the person investigating the Disclosure may not be able to provide the Discloser with information about the status of any investigation into the conduct. Where a Disclosure is made directly to an Eligible Recipient within ACU, anonymous Disclosers should endeavour to maintain communications with ACU to enable follow up on their Disclosure. This is best achieved by making the Disclosure to the external, third-party Disclosure Receiver appointed by ACU from time to time and referred to in Appendix A of the Protected Disclosures Procedure. (22) ACU will protect the identity of a Discloser who reports or who seeks to report Reportable Conduct, except in the following circumstances: (23) Any person receiving Confidential Information provided by a Discloser under this Policy must keep that information confidential (except in the circumstances permitted above). A breach of this obligation of confidentiality shall be characterised as serious misconduct and, in the case of Officers or Staff, shall be dealt with in accordance with the Enterprise Agreement, the Code of Conduct for Staff, the Misconduct and Serious Misconduct Policy or any equivalent policy of ACU from time to time. If the obligation is breached by someone who is not a Staff Member, ACU may terminate the engagement or appointment, or take other appropriate corrective action. The breach of these confidentiality provisions may also amount to a criminal offence and civil penalties, including substantial fines and / or imprisonment. (24) Files and records relating to Disclosures will be treated as confidential and stored securely. (25) ACU supports a culture that encourages the reporting of Reportable Conduct. (26) Where a Discloser has reasonable grounds to suspect Reportable Conduct and has made a Protected Disclosure as defined in this Policy, ACU will protect the Discloser from Detrimental Action and the Discloser shall not suffer Detrimental Action by reason of having made a Protected Disclosure. (27) If the Discloser suffers or claims to have suffered any Detrimental Action, the Discloser may exercise any relevant rights under the ACU Staff Enterprise Agreement or any other relevant Policy or Procedure of ACU. (28) Protection by ACU from Detrimental Action does not prevent the Discloser from being subject to any civil, criminal or administrative liability for personal conduct of the Discloser that is revealed by the Disclosure. (29) If the Discloser makes a Protected Disclosure as defined under Legislative Whistleblower Framework, these laws also provide the following protections for Eligible Whistleblowers at law: (30) If the Discloser is a Staff Member or Officer of ACU, they are entitled to support through the Employee Assistance Program (ACCESS EAP). ACU may explore other options such as taking leave, relocation to another area of business or a secondment arrangement while the Protected Disclosure is being investigated. (31) If the Discloser is a Staff Member or Officer of ACU, they will not be subject to disciplinary action for making a disclosure on reasonable grounds. The Discloser may however still be subject to disciplinary action for misconduct that is revealed as a result of their Disclosure. ACU may take the Disclosure into account when determining the nature of any disciplinary action taken against the Discloser. (32) If the Discloser thinks their Disclosure has not been dealt with sufficiently, or if the Discloser thinks their identity has been disclosed in breach of this Policy, the Discloser may raise the concern with the Chair, Audit and Risk Committee. If the Discloser seeks to maintain their anonymity, any such concern must be raised with the Disclosure Receiver appointed by ACU from time to time and referred to in Appendix A of the Protected Disclosures Procedure. Alternatively, if the Discloser does not wish to maintain their anonymity, they may communicate their concern to the Protected Disclosure Officer using the email address Protected.Disclosures@acu.edu.au who will forward details of their concerns to the Chair, Audit and Risk Committee. (33) In addition to being reportable under this Policy, Disclosures about Reportable Conduct (as defined in the Legislative Whistleblower Framework) can be reported directly to an external regulatory body including ASIC or the Australian Prudential Regulation Authority, or the Commissioner of Taxation (for matters relating to the Taxation Administration Act 1953 (Cth)). (34) The Corporations Act 2001 (Cth) enables Disclosers to make a public interest disclosure or an emergency disclosure about a protected matter to a journalist or a member of parliament in certain limited circumstances. (35) Before formally reporting any concern externally, ACU recommends the Discloser contacts the third party whistleblowing reporting service identified in Appendix A of the Protected Disclosures Procedure (the external, third-party Disclosure Receiver appointed by ACU from time to time). The third-party whistleblowing reporting service is trained at handling Disclosures and can discuss the available options with the Discloser. ACU also recommends that the Discloser seeks independent legal advice (at their own cost) before formally reporting any concern externally. A Disclosure to a legal practitioner for the purposes of obtaining legal advice or representation is permitted in relation to the operation of the Legislative Whistleblower Framework. (36) Nothing in this Policy is intended to prevent any person from reporting possible breaches of laws to relevant government agencies or authorities. (37) The Protected Disclosures Framework does not apply to: (38) The Protected Disclosure Officer and the Responsible Officer shall have a direct line of reporting and accountability to Vice-Chancellor and President as Chief Executive Officer of ACU in relation to this Policy and the Protected Disclosures Procedure. (39) If: (40) The Annual Report of ACU shall contain a report in relation to the operation of this Policy and the Protected Disclosures Procedure. (41) The report shall not disclose the identity of any person who has made a Protected Disclosure. (42) If a person makes a malicious, frivolous or vexatious Disclosure, without having reasonable grounds to do so, the making of that Disclosure may constitute misconduct and, in the case of Officers or Staff, may be dealt with in accordance with the Enterprise Agreement, the Code of Conduct for Staff or the Misconduct and Serious Misconduct Policy or any equivalent policy of ACU from time to time, as determined by the Governing Authority. The legal protections are not available if a Disclosure is made without reasonable grounds and is deliberately false. (43) A Protected Disclosure by an Eligible Whistleblower will be managed in accordance with the Protected Disclosures Procedure. (44) Any investigation, process or activity associated with a Protected Disclosure where Staff are mentioned, or to whom a Protected Disclosure relates, will be conducted in accordance with principles of natural justice (procedural fairness). (45) In particular, ACU will ensure fair treatment of Staff who are mentioned in Protected Disclosures, or to whom a Protected Disclosure relates, through the application of provisions contained in the relevant ACU policies and associated procedures including the following: (46) ACU will endeavour to: (47) Staff or Officers who are mentioned in a disclosure are entitled to confidential support via the Employee Assistance Program. (48) The Public Interest Disclosure Act 2013 (Cth) (the PID Act) deals with disclosures by a "public official". A "public official" includes an officer or employee of a contracted service provider who is party to a commonwealth contract. A commonwealth contract is a contract with the Commonwealth, or any statutory agency as defined in the Public Service Act 1999 (Cth). (49) ACU is a contracted service provider for the purposes of the PID Act. (50) The PID Act offers protection from reprisal action. The protection applies to public officials who disclose suspected illegal conduct, corruption, maladministration, abuses of public trust, deception relating to scientific research, wastage of public money, unreasonable danger to health or safety, danger to the environment or abuse of position or conduct which may be grounds for disciplinary action. (51) In the case of officers or employees of a contracted service provider to the Commonwealth, the Disclosure must relate to the Commonwealth contract. (52) If the Discloser wishes to make a Disclosure in relation to a contract between ACU and the Commonwealth or an agency they may do so under this Policy. Alternatively, the Discloser may make the Disclosure to the Commonwealth agency that is party to the contract, the Commonwealth Ombudsman or the Inspector-General of Intelligence and Security. (53) The Policy is available via multiple channels including, but not limited to, the following: (54) ACU will review the Protected Disclosures Framework regularly. It may amend the Policy and Protected Disclosures Procedure from time to time to ensure their currency with respect to relevant legislation and University policy and procedures and to improve the general effectiveness and operation of the Protected Disclosures Framework. (55) In line with the Policy Development and Review Policy and Policy Development and Review Procedure, policies and procedures are generally scheduled for review every five (5) years or sooner in the event that the Approval Authority or the Governing Authority determines that a review is warranted. In the case of the Protected Disclosures Framework, the review shall occur every two (2) years to ensure ongoing compliance with the Act. (56) Training on this Policy will be offered from time to time. The Responsible Officer will communicate details of training and compliance. (57) Unless otherwise indicated, this Policy will still apply beyond the review date.Protected Disclosures Policy
Section 1 - Background
Top of PageSection 2 - Definitions
Term
Definition
Act
means the Corporations Act 2001 (Cth).
ACU
means Australian Catholic University Limited, and any related bodies corporate in Australia.
Affiliate
means a contractor, supplier, consultant and agents engaged by ACU (including a person who has a contract for the supply of services or goods to ACU) and their employees.
Amendment Act
means Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth).
APRA
means Australian Prudential Regulation Authority.
ASIC
means Australian Securities and Investments Commission.
Confidential Information
means identity of a Discloser or Eligible Whistleblower (as relevant) who reports or who seeks to report Reportable Conduct or make a Protected Disclosure and any information that is likely to lead to their identification.
Detrimental Action or Detriment includes:
Detriment
does not include reasonable management action to protect a person from Detriment (for example reallocating duties or reporting lines) or to manage unsatisfactory performance of a person who is or may be a Discloser.
Disclosure
means the initial communication of information or conduct to an Eligible Recipient in accordance with this Policy and the Protected Disclosures Procedure that may be subsequently characterised as a Protected Disclosure.
Disclosure Receiver
means an individual, group of individuals or a third-party organisation appointed by ACU who (subject to confidentiality and anonymity requirements outlined in the Protected Disclosures Framework) is / are responsible for:
In addition:
Eligible Recipient
means any of the designated whistleblowing officers who are capable of receiving a Protected Disclosure. It is ACU’s preference that disclosures of Reportable Conduct are made to the Disclosure Receiver (being a person authorised by ACU to receive Protected Disclosures listed in Item 1 of Appendix A of the Procedure). However, a Discloser can make a Disclosure to any of the Eligible Recipients named below:
Eligible Whistleblower or Discloser
means anyone who is or has been in relation to ACU:
Enterprise Agreement
means Australian Catholic University Staff Enterprise Agreement in force from time-to-time.
Legislative Whistleblower Framework
means the Corporations Act 2001 (Cth) and the Taxation Administration Act 1953 (Cth).
Member
means a member of Australian Catholic University Limited defined in clause 7 of the Constitution.
Officer
includes:
and includes a Senior Manager.
Personal Work-related Grievance
means:
Examples of grievances that may be Personal Work-related Grievances under paragraph (a) (but subject to paragraph (b)) are as follows:
Policy
means this Protected Disclosures Policy.
Procedure
means the Protected Disclosures Procedure.
Protected Disclosure
Means a Disclosure protected by the Legislative Whistleblower Framework (and includes a public interest disclosure and an emergency disclosure as defined in the Act).
Protected Disclosure Framework
Means this Policy and the Protected Disclosures Procedure.
Protected Disclosure Officer
Means the Secretary of ACU who is responsible for:
Reportable Conduct
in the context of the Protected Disclosures Framework, includes the following:
Type of Conduct
Example(s)
Misconduct in relation to ACU including fraud, negligence, default, breach of trust, or breach of duty in relation to ACU.
An improper state of affairs or circumstances, in relation to ACU.
Information that indicates that ACU or any of its Officers or Staff have engaged in conduct that constitutes a breach of the Corporations Act 2001 (Cth) or other laws administered by ASIC and the Australian Prudential Regulation Authority.[1]
Information that indicates that ACU or any of its Officers or Staff have engaged in conduct that breaches any other Commonwealth laws, punishable by 12 months or more imprisonment.
Information that indicates that ACU or any of its Officers or Staff have engaged in conduct that represents a danger to the public or to the financial system.
Information that indicates misconduct or an improper state of affairs or circumstances, in relation to the tax affairs of ACU, or an associate[2] of ACU and a person consider this information may assist the recipient to perform their functions or duties in relation to those tax affairs.
Any attempt to conceal or delay disclosure of any of the above conduct.
Responsible Officer
means the Director, Legal, Assurance and Governance who is responsible for administering and reviewing this Policy and the Protected Disclosures Procedure and making recommendations to the Governing Authority and Approval Authority for amendments as required.
Senior Manager
means a person defined with reference to Management Levels 1–5 of the Delegations of Authority Policy and Register.
"Staff" or "Staff Member"
Tax affairs
means affairs relating to any tax imposed by or under, or assessed or collected under, a law administered by the Commissioner of Taxation.
Victimisation
means any conduct which causes any Detriment to another person or that constitutes the making of a threat or to cause Detriment to another person.
Section 3 - The Relationship Between the Protected Disclosures Framework and the Legislative Whistleblower Framework
Section 4 - Policy Statement
Section 5 - Purpose
Top of Page
Section 6 - Who Does this Policy Apply to?
Section 7 - What can be the Subject of Reportable Conduct?
Section 8 - How can a Disclosure be made?
Section 9 - Can a Disclosure be made anonymously?
Section 10 - Protections Available to a Discloser
Anonymity and confidentiality
Immunity from Victimisation and Detrimental Action
Protections Available to Eligible Whistleblowers at Law
Protections that ACU Provides to Eligible Whistleblowers
Section 11 - Can a Disclosure be made Externally?
Section 12 - Exclusions
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Section 13 - Reporting and Accountability
Reporting
Accountability
Section 14 - Breach of the Policy and Procedure
Malicious, Frivolous or Vexatious Reporting of Reportable Conduct
Section 15 - Managing Protected Disclosures
Section 16 - Fair Treatment of Staff Mentioned in a Disclosure
Section 17 - Public Interest Disclosure Act 2013 (Cth)
Section 18 - Availability of the Policy
Top of Page
Section 19 - Policy Review
Section 20 - Revisions made to this Policy
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consistent with the Constitution of Australian Catholic University Limited, the ACU Staff Enterprise Agreement, and Statute 1.1 - General Provisions: Interpretation, includes:
[1] These laws include: the Banking Act 1959 (Cth); the Financial Sector (Collection of Data) Act 2001; the Insurance Act 1973; the Life Insurance Act 1995; the National Consumer Credit Protection Act 2009; the Superannuation Industry (Supervision) Act 1993; or an instrument made under those Acts.
[2] Associate in this context refers to an associate of a company as defined in the Income Tax Assessment Act 1936 (Cth), and includes a partner, a trustee of a trust where the company or their associate benefits from the trust, a controlling entity, and a controlled company.
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