1. Introduction

1.1 Purpose and scope

This policy applies to Loreto Kirribilli to ensure individuals who disclose wrongdoing in relation to the School can do so safely and with confidence that they will be protected and supported. This policy has developed following the new amendments to the Corporations Act 2001 (the Act) for enhancing whistleblower protections that compliments the School’s Complaints Handling Policies.

This policy will be published on the School’s website and made available to all employees.

1.2 Related policies

  • Complaints that do not meet the criteria of a whistleblowing disclosure will be addressed in accordance with the School’s Complaints Handling Policy.
  • Complaints and allegations of staff misconduct or reportable conduct that do not meet the criteria of a whistleblowing disclosure will be addressed in accordance with the School’s Procedures for Handling Allegations of Staff Misconduct and Reportable Conduct.
  • Disclosures regarding complaints and grievances about the TAA’s accreditation process by teachers and other stakeholders in the accreditation process will be addressed in accordance with the School’s Complaints and Grievances Procedure (TAA).
  • Unlawful discrimination, harassment or bullying complaints may be addressed in accordance with the School’s Discrimination, Harassment and Bullying policies.

2. What is a qualifying disclosure?

A qualifying disclosure is when an eligible whistleblower makes a disclosure to an eligible recipient, and the eligible whistleblower has reasonable grounds to suspect that the information concerns a disclosable matter.

3. Who can make a qualifying disclosure?

3.1 Eligible whistleblowers

An eligible whistleblower is an individual who is or has been any of the following, in relation to the School:

  • a Board member;
  • an employee;
  • a person who supplies goods or services (paid or unpaid);
  • an employee of a person who supplies goods or services (paid or unpaid);
  • an individual who is an associate of the School (as defined in the Corporations Act); and
  • a relative or dependent (or dependents of a spouse) of any individual described above.

It could cover parents who are helping the School in a volunteer capacity even if they have volunteered on one occasion.

3.2 Anonymous disclosures

A disclosure can be made anonymously and still be protected under the Corporations Act. A discloser can choose to remain anonymous while making a disclosure, over the course of the investigation and after the investigation is finalised.  

However, this may make it difficult to investigate the reported matter. The School therefore encourages disclosers to provide their names. 

If a discloser wishes to disclose anonymously, the discloser should provide sufficient information to allow the matter to be properly investigated. The School encourages the discloser to provide an anonymous email address through which additional questions can be asked and information provided. It will also allow the School to report the progress of the investigation to the discloser, as appropriate.   

4. Disclosable matters that qualify for protection

4.1 Disclosable matters

A disclosable matter is a disclosure of information where the eligible whistleblower has reasonable grounds to suspect that the information relating to the School or a related company concerns:

  • misconduct;
  • an improper state of affairs or circumstances;
  • illegal activity (including conduct of officers and employees) – meaning activity in breach of the Corporations Act or specified financial services legislation, or an offence against any law of the Commonwealth punishable by imprisonment of 12 months or more; or
  • conduct (including conduct of officers and employees) that represents a danger to the public or financial system.

This may include any conduct in relation to the operation of the School that involves:

  • fraudulent activity;
  • negligence;
  • unlawful or corrupt use of School funds;
  • improper accounting or financial reporting practices;
  • systemic practices that pose a serious risk to the health and safety of any person on School premises or during School activities.

If a disclosure is not about a disclosable matter, it will not qualify for whistleblower protection under the Corporations Act.

4.2 Reasonable grounds to suspect

Whether a discloser would have ‘reasonable grounds to suspect’ is based on the reasonableness of the reasons for the discloser’s suspicion, having regard to all the circumstances when considered objectively.

If a disclosure is made without ‘reasonable grounds to suspect’, the disclosure will not be a qualifying disclosure and the discloser will not have the protections provided for under this policy and the Corporations Act. Any deliberate false reporting will be regarded very seriously.

A discloser can still qualify for protection even if their disclosure turns out to be incorrect.

4.3 Personal work-related grievances

Generally, disclosures that concern personal work-related grievances do not qualify for protection.

A disclosure will concern a personal work-related grievance of the discloser if the information:

  • concerns a grievance about any matter in relation to the discloser’s employment, or former employment, having or tending to have implications for the discloser personally; and
  • does not have significant implications for the School that do not relate to the discloser; and
  • does not concern conduct that is:
    – an alleged contravention of the Corporations Act and specified financial services laws; or
    – an offence against another law of the Commonwealth, which is punishable by imprisonment of 12 months or more; or
    – a danger to the public or financial system.

Examples of disclosures regarding personal work-related grievances that may not qualify for protection include:

  • an interpersonal conflict between the discloser and another employee;
  • a decision relating to the engagement, transfer or promotion of the discloser;
  • a decision relating to the terms and conditions of engagement of the discloser;
  • a decision to suspend or terminate the engagement of the discloser, or otherwise discipline the discloser.

These matters will be addressed in accordance with the School’s Complaints Handling Policies. 

A personal work-related grievance may still qualify for protection if:

  • it includes information about misconduct, or information about misconduct includes or is accompanied by a personal work-related grievance (mixed report); or
  • the entity has breached employment or other laws punishable by imprisonment for a period of 12 months or more, engaged in conduct that represents a danger to the public, or the disclosure relates to information that suggests misconduct beyond the discloser’s personal circumstances; or
  • the discloser suffers from or is threatened with detriment for making a disclosure; or
  • the discloser seeks legal advice of legal representation about the operation of the whistleblower protections under the Corporations Act.

5. Who can receive a qualifying disclosure

5.1 Eligible recipients

While an eligible whistleblower can make a disclosure directly to any eligible recipient1, the School encourages them to make a disclosure in writing by:

  1. Sending an email to the Principal; or
  2. Writing a letter to the School addressed to the Principal

If it is not appropriate for the disclosure to be made to the Principal, the eligible whistleblower is encouraged to make the disclosure, in writing, to the Deputy Principal who will immediately report to the Chair of the School Board.

If the disclosure relates to a Board member, the eligible whistleblower is encouraged to make the disclosure, in writing, to the Principal who will immediately report to the Province. 

Where a disclosure is made to an eligible recipient who is not the Principal (i.e. Board member, senior manager, auditor, or member of an audit team) then subject to the confidentiality protections set out at Section 7 below, it will generally be passed onto the Principal and dealt with in accordance with Section 6 below. 

If an eligible whistleblower wishes to obtain additional information about whistleblowing procedures and protections before formally making their disclosure, they can contact the Deputy Principal or an independent legal advisor.

5.2 External disclosures

Disclosures may also qualify for protection if they are made to the Australian Securities and Investments Commission (ASIC), the Australian Prudential Regulation Authority (APRA) or a prescribed Commonwealth authority, or if an eligible whistleblower makes a disclosure to a legal practitioner to obtain advice about the operation of the whistleblower provisions.

Eligible whistleblowers who make a ‘public interest disclosure’ or an ‘emergency disclosure’ also qualify for protection.

5.3 Public interest disclosures

An eligible whistleblower can disclose to a member of Parliament or a journalist only if the information has been previously disclosed to ASIC, APRA or a prescribed Commonwealth authority, and:

  • at least 90 days has passed since the time of the first disclosure to ASIC, APRA or a prescribed Commonwealth authority; and
  • the eligible whistleblower does not have reasonable grounds to believe action is being, or has been, taken to address the information in the disclosure; and
  • the eligible whistleblower has reasonable grounds to believe that making a further disclosure of the information would be in the public interest; and
  • before making the disclosure, the eligible whistleblower gives written notice to the original recipient that includes sufficient information to identify the previous disclosure and states that they intend to make a public interest disclosure; and
  • the extent of information disclosed is no greater than necessary to inform the recipient of the disclosable matter.

An eligible whistleblower may wish to consider obtaining independent legal advice before making a public interest disclosure.

5.4 Emergency disclosures

An eligible whistleblower can disclose to a member of Parliament or a journalist only if the information has been previously disclosed to ASIC, APRA or a prescribed Commonwealth authority, and:

  • the eligible whistleblower has reasonable grounds to believe that the information concerns a substantial and imminent danger to the health or safety of one or more persons or to the natural environment; and
  • before making the disclosure, the eligible whistleblower gives written notice to the original recipient that includes sufficient information to identify the previous disclosure and states that they intend to make an emergency disclosure; and
  • the disclosure of information is no greater than necessary to inform the recipient of the substantial and imminent danger.

An eligible whistleblower may wish to consider obtaining independent legal advice before making an emergency disclosure.

[1] A Board member, a Senior Manager (Deputy Principal, Business Manager, Head of Junior School and Director of Senior School), an auditor or member of an audit team of the School or a related company, and an actuary of the School or a related company.  

6. Investigating a qualifying disclosure

6.1 Receiving a disclosure

Upon receiving a disclosure, the recipient will acknowledge receipt of the complaint in writing within a reasonable period, assuming the ‘eligible whistleblower’ can be contacted (including through anonymous channels) and assess the disclosure to determine whether it qualifies for protection under the Corporations Act or the disclosure concerns matters that should managed in accordance with related policies (see section 1.2).

6.2 Investigating a qualifying disclosure

How the School investigates a qualifying disclosure will depend on the nature of the disclosure.

An investigation will generally involve the making of inquiries or collection of evidence for the purpose of assessing the disclosure made by the whistleblower and to determine:

  • the nature and scope of the investigation;
  • who should lead the investigation – including whether an external investigation is appropriate;
  • the nature of any technical, financial or legal advice that may be required to support the investigation; and
  • the anticipated timeframe for the investigation. Each investigation will be different which will impact the applicable timeframe. However, the School’s intent is to complete an investigation as soon as possible.

Where practicable, the School will keep the eligible whistleblower informed of the steps taken or to be taken (or if no action is to be taken, the reason for this), and provide appropriate updates, including about the completion of any investigation. However, the extent of the information provided, or whether it will be provided at all, will be subject to applicable confidentiality considerations, legal obligations and any other factors the School considers relevant in the particular situation.

The School may not be able to undertake an investigation, or provide information about the process etc, if it is not able to contact the eligible whistleblower, for example, if a disclosure is made anonymously and has not provided a means of contact.

Where practicable, whistleblowers will receive updates about when the investigation has begun, while the investigation is in progress and after the investigation has been finalised. The frequency and timeframe of any updates may vary depending on the nature of the disclosure. The School will also have regard to confidentiality considerations when providing updates.

6.3 Fair treatment of employees mentioned in disclosures

The School will take steps to ensure the fair treatment of employees who are mentioned in a disclosure that qualifies for protection:

  • disclosures will be handled confidentially, when it is practical and appropriate in the circumstances;
  • when an investigation needs to be undertaken, the process will be objective and fair;
  • employees about whom disclosures are made will generally be given an opportunity to respond to the relevant allegations made in the qualifying disclosure.

The School’s employee assistance program (EAP) services will be available to employees affected by the disclosure, should they require that support. 

The School will document the steps of the investigation and the findings from the investigation and report those findings to those responsible in the School. The method for documenting and reporting the findings will depend on the nature of the disclosure. There may be circumstances where it may not be appropriate to provide details of the outcome to the discloser.

7. Confidentiality and records

Under the Corporations Act, the identity of the discloser of a qualifying disclosure and information which is likely to lead to the identification of the discloser must be kept confidential.

Exceptions to this are disclosures to ASIC, the Australian Federal Police, a legal practitioner for the purpose of obtaining advice about the application of the whistleblower protections or made with the consent of the discloser.

If a disclosure involves and issue which the School is required to report, the School may not be able to maintain the confidentiality of the identity of the disclosure. This disclosure could include NSW Police, the NSW Ombudsman, NSW Education Standards Authority or the NSW Department of Education.

It is also permissible to disclose information which could lead to the identification of the discloser if the disclosure is reasonably necessary for the purpose of investigating the matter, if all reasonable steps are taken to reduce the risk that the discloser will be identified as a result of the information being disclosed.   

Breach of these confidentiality protections regarding the discloser’s identity and information likely to lead to the identification of the discloser is a criminal offence and may be the subject of criminal, civil and disciplinary proceedings.

Confidentiality will be observed in relation to handling and storing records.

8. Whistleblower protections and support

Confidentiality

Eligible whistleblowers making a qualifying disclosure are protected by the requirement that their identity, and information that may lead to their identification, should be kept confidential, subject to relevant exceptions as set out in section 7 above.

The School will protect an eligible whistleblower’s identity by appropriately redacting documents and referring to the whistleblower in gender-neutral terms. It will also secure all documents and communicate them in a way that will maintain confidentiality.

Immunity

Eligible whistleblowers making a qualifying disclosure cannot be subject to any civil, criminal or administrative liability (including disciplinary action) for making the disclosure. No contractual or other remedy or right may be enforced or exercised against the person on the basis of the disclosure.

Whistleblowers who make some types of qualifying disclosures (generally external to the School) are also provided immunities to ensure that information they disclose is not admissible in evidence against them in criminal proceedings or in proceedings for the imposition of a penalty, other than proceedings in respect of the falsity of the information.

These immunities do not prevent an eligible whistleblower being subject to criminal, civil or other liability for conduct that is revealed by the whistleblower, only that the information the person has disclosed is not admissible in certain proceedings against them. 

Detriment

Eligible whistleblowers are also protected from victimisation – suffering any detriment by reason of the qualifying disclosure. It is unlawful for a person to engage in conduct against another person that causes, or will cause detriment, where the person believes or suspects that the other person or a third person made, may have made, proposes to make or could make a qualifying disclosure.

Threats of detriment are also unlawful.

Detriment has a very broad meaning and includes dismissal of an employee, injuring an employee in their employment, alteration of an employee’s position or duties to their disadvantage; discrimination between an employee and other employees; victimisation of a dependent of the discloser, harassment or intimidation of a person or harm or injury to a person, including psychological harassment; damage to a person’s property, reputation or business or financial position.

If an eligible whistleblower believes they are being subjected to a detriment or a threat of detriment, this should immediately be reported in writing to the Principal.

If it is not appropriate for the report to be made to the Principal, the eligible whistleblower should report the matter, in writing, to the Deputy Principal who will immediately report to the Chair of the School Board.

The School may also consider a range of other matters to protect an eligible whistleblower from the risk of suffering detriment and to ensure fair treatment of individuals mentioned in a disclosure.  Steps it will take to help achieve this may include:

  1. assessing whether anyone may have a motive to cause detriment—information could be gathered from an eligible whistleblower about:
  • the risk of their identity becoming known;
  • who they fear might cause detriment to them;
  • whether there are any existing conflicts or problems in the workplace; and
  • whether there have already been threats to cause detriment.
  1. analysing and evaluating the likelihood of each risk and evaluating the severity of the consequences;
  2. developing and implementing strategies to prevent or contain the risks—for anonymous disclosures, and assessing whether the discloser’s identity can be readily identified or may become apparent during an investigation;
  3. monitoring and reassessing the risk of detriment where required—the risk of detriment may increase or change as an investigation progresses, and even after an investigation is finalised;
  4. taking steps to ensure that:
  • disclosures will be handled confidentially, when it is practical and appropriate in the circumstances;
  • each disclosure will be assessed and may be the subject of an investigation;
  • the objective of an investigation is to determine whether there is enough evidence to substantiate or refute the matters disclosed.

The School’s EAP services will be available to all eligible whistleblowers and other employees affected by the disclosure, should they require that support.

Remedies available to eligible whistleblower for being subjected to detriment could include:

  • compensation
  • injunctions and apologies
  • reinstatement of a person whose employment is terminated
  • exemplary damages

Schools and individuals may face significant civil and criminal penalties for failing to comply with confidentiality and detrimental conduct provisions.

9. Contact

If you have any queries about this policy, you should contact the Deputy Principal for advice.

 

10. Appendix A – Whistleblower Complaints Handling Process