SERVing ethically

Whistleblower Policy

Secure Electronic Registries Victoria (SERV) is committed to:

  • ensuring lawful, honest and ethical conduct by its employees and officers and in all its business activities;
  • promoting and supporting a culture of integrity, transparency, accountability and excellent corporate compliance and governance; and
  • ensuring the fair treatment of employees or other persons who make a disclosure under this policy, as well as employees, officers or any other persons about whom a disclosure is made or to whom a disclosure relates.

The purpose of this policy is to:

  • encourage the reporting of any actual or suspected Misconduct involving SERV or SERV employees or officers;
  • confirm the processes for reporting, and dealing with any reports of, Misconduct;
  • confirm the protections that are available under Australian law where a Protected Disclosure has been made.

When to use this policy

The Whistleblower Policy applies to:

  • any person who is currently or was formerly employed or engaged by SERV;
  • any current or former contractors, consultants, service providers, business partners or suppliers of goods or services to SERV (and any employees or associates of such entities);
  • relatives, dependents or spouses of any of the persons or entities mentioned in (a) or (b) above; or
  • any individual prescribed by the regulations issued under the Corporations Act.

Each of the above persons are Eligible Whistleblowers. This policy applies where an Eligible Whistleblower has reasonable grounds to suspect that a SERV director, officer, employee, contractor, supplier or person who is doing business with SERV is engaging in Misconduct.

To whom can a Protected Disclosure be made?

An Eligible Whistleblower can make a Protected Disclosure that may qualify for protection under Australian law to the following Eligible Recipients:

Eligible Recipients

Description

SERV Nominated Whistleblower Disclosure Officers

SERV has appointed the following as Whistleblower Disclosure Officers:

  • Chief Executive Officer
  • SERV General Managers or members of the Executive Leadership Team
  • Chair of the SERV Audit & Risk Committee

Others

In addition to the SERV Nominated Whistleblower Disclosure Officers an Eligible Whistleblower may make a Protected Disclosure to:

  • a Director or the Company Secretary of SERV; 
  • auditor, or a member of an audit team, conducting an audit of SERV; or
  • person or authority prescribed by any Whistleblower Regulations.

Legal Practitioners

Disclosures made to a legal practitioner for the purposes of obtaining legal advice or legal representation in relation to the operation of the Corporations Act 2001 (Cth).

External bodies

Disclosures may also be made to ASIC, APRA or another Commonwealth body prescribed by regulation.

 

Protected Disclosures may also be made to SERV via our independent service provider (see below).

Any SERV employee (who is not a SERV Nominated Disclosure Officer) who receives, or believes they may have received, a Protected Disclosure must promptly inform the person who has made a disclosure to them that they should follow the process for making a Protected Disclosure set out in SERV’s Policy which includes making the disclosure to a Nominated Disclosure Officer to access protection.

How to make a Protected Disclosure

An Eligible Whistleblower can identify themselves or can make a Protected Disclosure anonymously. A Protected Disclosure may be made in the following ways:

  1. by making the disclosure in person to any Eligible Recipient
  2. by contacting any Eligible Recipient including:
  1. by making a Protected Disclosures to SERV via our independent service provider (Deloitte) by;
  1. by making a Protected Disclosure anonymously as set out below.

 

Anonymous Protected Disclosures

Eligible Whistleblowers may choose to remain anonymous throughout and after the disclosure and investigation process. An Eligible Whistleblower may also refuse to answer questions which they feel may reveal their identity.

An Eligible Whistleblower may make an anonymous Protected Disclosures to SERV to an independent service provider (Deloitte) by:

When accessing this service, Eligible Whistleblowers will have the option to make a Protected Disclosure which is:

  1. Confidential – Your identity and contact details will be provided to SERV;
  2. Restricted – Your identity and contact details will be provided to the independent service provider (Deloitte) but not to SERV; or
  3. Anonymous – Neither the independent service provider (Deloitte) nor SERV will be provided with your identity or contact details. You will be provided with a discloser id which will enable you to log in to SERV ’s whistleblower portal (managed by Deloitte) to receive updates on any investigation which is commenced into the Protected Disclosure.

Any reports made to the independent service provider (Deloitte) will be referred to a SERV Nominated Whistleblower Disclosure Officer for investigation (without disclosing the identity or contact details of the Eligible Whistlblower if option 2 (Restricted) or option 3 (Anonymous) have been selected).  Please note however that if option 3 (Anonymous) is selected this may impact SERV ’s ability to fully review and investigate the Protected Disclosure.

Protecting & Supporting people who make a Protected Disclosure

Protection

Under the Corporations Act 2001 (Cth) the following protections are available to Eligible Whistleblowers who make Protected Disclosures:

Area

Description

Identity Protection (Confidentiality)

 Where an Eligible Whistleblower makes a Protected Disclosure, it is illegal for a person to disclose the identity, or information that is likely to lead to the identification of an Eligible Whistleblower.

The exceptions to this are:

1. where the Eligible Whistleblower's identity is disclosed:

  • to ASIC, APRA or a member of the Australian Federal Police;
  • to a legal practitioner for the purposes of obtaining legal advice or legal representation about the whistleblower provisions in the Corporations Act 2001 (Cth);
  • to a person or body prescribed by regulation; or
  • with the consent of the Eligible Whistleblower;

 

2.  where it is reasonably necessary for the purposes of completing an investigation to disclose details of the Protected Disclosure and SERV:

  • has not identified the Eligible Whistleblower; and
  • has taken all reasonable steps to reduce the risk of the Eligible Whistleblower being identified.

 

Complaints for breach:

If an Eligible Whistleblower believes there has been a breach of the identity protection or confidentiality obligations the Eligible Whistleblower can lodge a complaint by contacting any of the SERV Nominated Whistleblower Disclosure Officers or a Director, Company Secretary or Executive Leadership Team Member.

An Eligible Whistleblower can also lodge a complaint with a regulator such as ASIC, APRA or the ATO.
Protection from detrimental action / Compensation and other remedies If someone believes or suspects that an Eligible Whistleblower (or another person) may have made or proposes to make a Protected Disclosure, they must not threaten to, or engage in detrimental conduct towards the Eligible Whistleblower (or another person) because of that belief or suspicion.

Examples of detrimental conduct includes:

  • discrimination, dismissal, alteration of employment terms to their disadvantage;
  • harassment, intimidation or harm or injury to a person (including psychological harm); or
  • damage to a person’s property, business, financial position or reputation.

Detrimental action does not include reasonable action taken to protect an Eligible Whistleblower from detrimental action or actions taken within SERV ’s performance management framework.
An Eligible Whistleblower may be entitled to seek compensation and other remedies through the courts if they suffer loss, damage or injury because of a Protected Disclosure and SERV failed to take reasonable precautions and exercise due diligence to prevent detrimental conduct. Eligible Whistleblowers may need to seek independent legal advice in this regard.
Protection from Liability Eligible Whistleblowers who have made a Protected Disclosure are protected from civil, criminal or administrative liability (for example protection from claims for breach of an employment or other contract, prosecution for unlawful release of information or disciplinary action).

Note however, an Eligible Whistleblower is not entitled to immunity for any misconduct the Eligible Whistleblower has engaged in that is revealed in their Protected Disclosure.

 

Note: Provided an Eligible Whistleblower had reasonable grounds for their suspicion, they can still qualify for protection under the law if the information included in their disclosure turns out to be incorrect.

Support

In accordance with SERV ’s Commitment, SERV will provide the following support to any Eligible Whistleblower who makes a Protected Disclosure:

Area

Description

Identity Protection/ Confidentiality

SERV will protect the confidentiality of an Eligible Whistleblower by:

  • securely storing any records of a Protected Disclosure made by an Eligible Whistleblower;
  • where possible, redacting any references to the Eligible Whistleblower’s identity and using gender neutral words in any documents used for a Protected Disclosure;
  • restricting access to any information about the Protected Disclosure to those who received the Protected Disclosure or need to be advised of, or involved in the investigation or management of the Protected Disclosure;
  • ensuring any persons who are notified of the Protected Disclosure are  aware of the need to maintain identity protection and confidentiality and that  unauthorised disclosure is a criminal offence; and
  • ensuring where possible communications and documents relating to the investigation of a disclosure cannot be accessed by other staff.  

Support

 SERV will protect the Eligible Whistleblower from detriment by discussing and implementing appropriate measures.

These measures might include access to support services (including Counsellors) via the Employee Assistant Program (EAP), investigating ways an Eligible Whistleblower can perform their duties to protect them from risk of detriment, training for SERV managers in how to protect an Eligible Whistleblower from detrimental action, undertaking a risk assessment of the likelihood of detrimental action and identifying and implementing risk controls, and providing an Eligible Whistleblower with an avenue for lodging a complaint about any detrimental action.

How Protected Disclosures are investigated

Any Protected Disclosure made in accordance with this policy will be investigated by SERV.

Stage

Description

1

 Upon receiving a disclosure, SERV will consider the information disclosed and determine whether (a) the disclosure is a Protected Disclosure and (b) whether an investigation is required given the nature and circumstances of the disclosure.  

2

 If SERV determines that it will need to investigate a Protected Disclosure, SERV will then determine:

  • the nature and scope of the investigation;
  • the person(s) within and/or outside the entity that should lead the investigation; and
  • the timeframe for the investigation.

3

 SERV will not (without the Eligible Whistleblower’s consent), disclose information that is likely to lead to the identification of the Eligible Whistleblower as part of its investigation process – unless:

(a) the information does not include the Eligible Whistleblower’s identity;

(b) the entity removes information relating to the Eligible Whistleblower’s identity or other information that is likely to lead to identification; and

(c) it is reasonably necessary for investigating the issues raised in the Protected Disclosure.

4

 All investigations are to be a reasonable and appropriate response to the seriousness of the misconduct alleged.

5

SERV will encourage the Eligible Whistleblowers to remain in communication with SERV so that SERV can clarify information regarding their disclosure and provide updates.

Subject to law, confidentiality and the protections afforded to Eligible Whistleblowers, where appropriate, SERV will provide updates (at an appropriate frequency) on the progress of an investigation, to the Eligible Whistleblowers and/or to person(s) to whom the disclosure relates.

Note: If an Eligible Whistleblower has chosen to remain anonymous and has not provided a means for SERV to contact them, this may limit the investigation processes available to SERV.

6

Where possible, SERV will advise the Eligible Whistleblowers of the support that is available to them (which may include access to EAP access) and the measures that will be put in place to protect their identity if that has been revealed to SERV.

7

 If it is determined as a result of the investigation that the disclosure is not protected by any law and was made maliciously, the person who made that disclosure could be subject to disciplinary action up to and including termination of their employment.

8

 The method for documenting and reporting the findings of any investigation will depend on the nature of the disclosure.  Where it is appropriate to do so the outcome of the investigation will be notified to the Eligible Whistleblower.  If the Eligible Whistleblower considers, on reasonable grounds, that the investigation has not been conducted in accordance with this policy they may raise their concerns with a member of SERV ’s Executive Leadership Team or Board.

Ensuring Fair Treatment of individuals mentioned in a Protected Disclosure

SERV is committed to the fair treatment of its employees who are mentioned in a Protected Disclosure, including those who are the subject of a Protected Disclosure.

To demonstrates this commitment SERV will take reasonable steps to ensure:

  • disclosures are handled confidentially, when it is practical and appropriate to do so;
  • each disclosure is assessed and that an investigation will be undertaken where appropriate;
  • the objective of an investigation is to determine whether there is enough evidence to substantiate or refute any matters which have been reported;
  • when an investigation needs to be undertaken, the process will be objective and fair;
  • an employee who is the subject of a Protected Disclosure will be advised about the subject matter of the Protected Disclosure as and where appropriate, considering the principles of natural justice and procedural fairness and prior to any actions being taken; and
  • that an employee who is the subject of a disclosure will have access to SERV ’s support services (e.g. EAP).

 

SERV may determine the most appropriate time to inform the individual who is the subject of a Protected Disclosure about an investigation, provided that they are informed before making any adverse finding against them.

It is recognised that in some circumstances, informing the individual at an early stage of an investigation may compromise the effectiveness of the investigation, such as when there may be concerns that the individual may destroy information or the disclosure needs to be referred to ASIC, APRA, the ATO or the Federal Police.

Questions, feedback and assistance

If you have any questions in relation to this policy, you may contact a SERV Nominated Whistleblower Disclosure Officer or the SERV Human Resources team.

SERV also encourages whistle-blowers to seek independent legal advice.

Definitions

The persons identified in this policy in the table under 'To whom can a Protected Disclosure be made?'

The people referred to in this policy under section 'When to use this policy'. 

A Protected Disclosure is a disclosure that is:

  • made by an Eligible Whistleblower;
  • made to an Eligible Recipient; and
  • relates to misconduct

Note: A disclosure made to a legal practitioner for the purposes of obtaining legal advice or legal representation in relation to the operation of the Corporations Act 2001 (Cth) may qualify for protection under the Corporations Act 2001 (Cth), even if the legal practitioner concludes that the disclosure is not a Protected Disclosure.

Misconduct is any suspected or actual behaviour which involves an improper state of affairs or circumstances.  This may include engaging, or attempting to engage, in behaviour which:

  • is dishonest, unethical, fraudulent or corrupt (including bribery, money laundering, misappropriation of funds);
  • is illegal (including breaches of privacy laws, competition and consumer laws, theft, dealing in or use of illicit drugs, violence or threats of violence, criminal damage against property) or constitutes a breach of any Commonwealth or State law or any other legal or regulatory requirements;
  • involves some form of default, breach of trust, negligence or breach of duty;
  • has the potential to cause damage to persons or property (including personal injury, health risks, environmental or property damage) or otherwise endanger the public;
  • has the potential to cause financial harm (including by causing SERV to suffer financial loss or damage to its reputation);
  • involves discrimination, victimisation, bullying or harassment;
  • involves a breach of SERV’s policies and procedures or legal obligations (including willfully breaching the Code of Conduct, confidentiality obligations, dishonestly making or altering company records);
  • involves engaging in or threatening to engage in detrimental conduct against a person or entity that has made a Protected Disclosure under this policy.

Misconduct does NOT include Personal Work-Related Grievances.

Disclosures that relate solely to a personal work-related grievance, and do not relate to detriment or threat of detriment to the discloser do not qualify for the protections described in this policy and set out in the Corporations Act 2001 (Cth). As such, they are not considered Protected Disclosures.

Personal work-related grievances are those which relate to the discloser’s current or former employment and have implications for the discloser personally but do not have any other significant implications for SERV (or any other entity) or relate to or include any conduct about a disclosable matter (as set out above).

For example, grievances about transfer or promotion decisions, dismissal or allegations of bullying will not qualify for the protections, unless the circumstances also include conduct that is a disclosable matter.

SERV has separate policies for dealing with these matters (including our Appropriate Behaviour in the Workplace Policy & Procedure and Grievance Policy) which detail how the matters will be addressed, and the protections available to persons disclosing such matters or participating in their investigation (such as protections from victimisation).

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