Whistleblower Policy
Whistleblower Policy
College Capital Australia Limited
ACN 613 138 113
(Company)
Table of Contents
1 About this policy .................................................................................................................. 1
2 Who does this policy apply to? ........................................................................................... 1
3 What matters does this policy apply to? ............................................................................ 1
3.1 Reportable Conduct – Corporations Act ..................................................................................... 1
3.2 Examples of Reportable Conduct................................................................................................ 2
3.3 No protection – personal work-related grievances ...................................................................... 2
3.4 Qualifying for protection – personal work-related grievances ..................................................... 2
3.5 False reporting............................................................................................................................. 3
4 Making a disclosure – Corporations Act ............................................................................ 3
4.1 Disclosing Reportable Conduct to the Company ........................................................................ 3
4.2 External disclosures .................................................................................................................... 3
4.3 Public interest and emergency disclosure ................................................................................... 4
5 Information to include when reporting Reportable Conduct ............................................. 4
6 Assessment and investigation ............................................................................................ 5
6.1 Assessment of the disclosure ...................................................................................................... 5
6.2 Investigation ................................................................................................................................ 5
6.3 Investigation findings ................................................................................................................... 5
7 Protections ........................................................................................................................... 5
7.1 Protection of identity and confidentiality ...................................................................................... 6
7.2 Detrimental Conduct prohibited ................................................................................................... 6
7.3 Reporting Detrimental Conduct ................................................................................................... 6
7.4 Protection of files and records ..................................................................................................... 7
7.5 Protecting individuals mentioned in a disclosure ........................................................................ 7
7.6 Protections under the legislation ................................................................................................. 7
7.7 Involvement in wrongdoing .......................................................................................................... 7
8 Breach of policy ................................................................................................................... 8
9 Review of this policy ............................................................................................................ 8
10 Accessibility of this policy .................................................................................................. 8
11 Taxation Administration Act 1953 ....................................................................................... 8
11.1 Eligibility ....................................................................................................................................... 8
11.2 Protected information under the Tax Act ..................................................................................... 8
11.3 Whistleblower protection ............................................................................................................. 9
1 About this policy
This policy outlines how the Company will deal with disclosures made in accordance with the Corporations Act 2001 (Corporations Act) (in particular, Part 9.4AAA of the Corporations Act) and the Taxation Administration Act 1953 (Tax Act). This policy applies to eligible 'whistleblowers' who disclose information to an eligible recipient which is protected under the legislation. The purpose of this policy is to ensure individuals who disclose wrongdoing can do so safely, securely and with confidence that they will be protected and supported.
The Company takes its compliance obligations seriously and acknowledges the importance of implementing this whistleblower policy. The Company wants to hear from you if you know something that would qualify for protection under this legislation.
This policy is made available to the Company's officers and employees on the Company’s website. The Company will periodically review this policy to ensure it is operating effectively and to determine if any amendments are required. It is not intended to be contractual in nature, but you may need to comply with this policy as an employee or contractor of the Company. It may be appropriate for the Company 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 first deals with whistleblowing disclosures to which the Corporations Act applies. You should refer to part 11 for guidance about disclosures under the Tax Act.
2 Who does this policy apply to?
This policy applies to protected disclosures made by persons who are, or have been:
(a) an officer or employee of the Company;
(b) a supplier of goods or services to the Company (including on an unpaid basis), or an employee of such a supplier;
(c) an associate of the Company (being a director or secretary of the Company, a related body corporate of the Company or a director or secretary of a related body corporate of the Company); or
(d) a relative, dependant or spouse of any of the individuals in parts 2(a), 2(b) or 2(c) above.
3 What matters does this policy apply to?
3.1 Reportable Conduct – Corporations Act
A disclosure under the Corporations Act can be made by a whistleblower who has reasonable grounds to suspect that the information concerns 'misconduct' or an 'improper state of affairs or circumstances' in relation to the Company (or a related body corporate) (Reportable Conduct).
The term 'misconduct' includes fraud, negligence, default, breach of trust and breach of duty according to section 9 of the Corporations Act. An 'improper state of affairs or circumstances' is not defined and is intentionally broad. For example, ‘misconduct' or an 'improper state of affairs or circumstances’ may not involve unlawful conduct in relation to the Company or any of its related bodies corporate but may indicate a systemic issue that the Australian Securities and Investments Commission (ASIC) should know about to properly perform its functions. It may also relate to business behaviour and practices that may cause consumer harm.
This includes (but is not limited to) where you have reasonable grounds to suspect the information indicates that the Company (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
Life Insurance Act 1995
Superannuation Industry (Supervision Act) 1993
(b) constitutes an offence against any other Commonwealth law punishable by a prison term of 12 months or more; or
(c) represents a danger to the public or the financial system.
3.2 Examples of Reportable Conduct
Some examples of Reportable Conduct that specifically relate to the Company's business operations and practices are:
(a) illegal conduct, such as theft, dealing in, or use of illicit drugs, violence or threatened violence, and criminal damage against property;
(b) fraud, money laundering or misappropriation of funds;
(c) offering or accepting a bribe;
(d) financial irregularities;
(e) failure to comply with, or breach of, legal or regulatory requirements; and
(f) engaging in or threatening to engage in detrimental conduct against a person who has made a disclosure or is believed or suspected to have made, or be planning to make, a disclosure.
Reportable Conduct may include conduct that does not involve a contravention of a particular law. Information that indicates a significant risk to public safety or the stability of, or confidence in, the financial system is also Reportable Conduct, even if it does not involve a breach of a particular law.
You can still quality for protection under the Corporations Act even if the Reportable Conduct turns out to be incorrect.
3.3 No protection – personal work-related grievances
A personal, work-related grievance generally does not qualify for protection under the Corporations Act. This is a complaint or dispute to do with your current or former employment or engagement with the Company, which has implications for you personally, but does not have any significant implications for the Company or relate to misconduct or improper conduct of the Company as set out in part 3.1. 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).
If you have a personal, work-related grievance you should seek legal advice about your rights and protections under employment or contract law.
3.4 Qualifying for protection – personal work-related grievances
A personal, work-related grievance may still qualify for protection if:
(a) it is mixed with valid Reportable Conduct;
(b) the Company 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 Reportable Conduct relates to information that suggests misconduct beyond your personal circumstances;
(c) you suffer from or are threatened with detriment for making a disclosure; or
(d) you seek legal advice or legal representation about the operation of the whistleblower protections under the Corporations Act.
3.5 False reporting
When making a disclosure, you will be expected to have reasonable grounds to suspect the information you are disclosing is true. You will not be penalised if the information turns out to be incorrect. However, you must not make a report you know is not true, or is misleading. Where it is found that you knowingly made a false report, this may be a breach of the terms of your employment and will be considered a serious matter that may result in disciplinary action. There may also be legal consequences if you make a knowingly false report.
4 Making a disclosure – Corporations Act
4.1 Disclosing Reportable Conduct to the Company
To be able to qualify for protection as a whistleblower under the Corporations Act (or the Tax Act, where relevant), you must promptly make a disclosure of Reportable Conduct directly to a Contact Officer or appropriate external party (as set out in part 4.2 and part 4.3 below).
The Company encourages you to initially contact the following people (Contact Officers) to communicate the Reportable Conduct:
(a) an officer or senior manager at the Company (or a related body corporate) as set out in the table below; or Name & Position Contact address: Telephone Email
Dennis Horne
Chairman
1/63 Ross St Toorak Vic 3142
0408 310 374
dhorne@collegecapital.com.au
(b) the Company's auditor (or a member of the audit team) or actuary.
You should ensure that any email or correspondence that you send to a Contact Officer is marked 'Strictly Confidential'.
While it is the Company's preference that you communicate Reportable Conduct directly to the Contact Officers in the first instance, it is important to note that under the Corporations Act, you can also qualify for protection if you raise the matter with external parties first. You should not report Reportable Conduct to a Contact Officer who has been involved in the conduct or allegations you are reporting. In that case, contact a different Contact Officer or make an external contact as set out in part 4.2 and part 4.3.
4.2 External disclosures
If you do not want to contact the Company, you can contact ASIC or the Australian Prudential Regulation Authority (APRA) to make a report regarding the Reportable Conduct, and you should refer to their policy about how the disclosure will be managed.
You may disclose the information to a legal practitioner for the purpose of obtaining legal advice/representation in relation to the operation of the legislation. Any disclosures to a legal practitioner for the purposes of obtaining legal advice or legal representation in relation to the operation of the whistleblower provisions in the Corporations Act are protected (even in the event that the legal practitioner concludes that a disclosure does not relate to Reportable Conduct).
4.3 Public interest and emergency disclosure
Reportable Conduct may be reported to a journalist or parliamentarian under certain circumstances and qualify for protection.
‘Public interest disclosure’ is the disclosure of information to a journalist or a parliamentarian, where:
(a) at least 90 days have passed since you made the disclosure to ASIC, APRA or another Commonwealth body prescribed by regulation;
(b) you do not have reasonable grounds to believe that action is being, or has been taken, in relation to your disclosure;
(c) you have reasonable grounds to believe that making a further disclosure of the information is in the public interest; and
(d) before making the public interest disclosure, you have given written notice to the body to which the previous disclosure was made that:
(i) includes sufficient information to identify the previous disclosure; and
(ii) states that you intend to make a public interest disclosure.
An ‘emergency disclosure’ is the disclosure of information to a journalist or parliamentarian, where:
(a) you have previously made a disclosure of the information to ASIC, APRA or another Commonwealth body prescribed by regulation;
(b) you have 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;
(c) before making the emergency disclosure, you have given written notice to the body to which the previous disclosure was made that:
(i) includes sufficient information to identify the previous disclosure; and
(ii) states that you intend to make an emergency disclosure; and
(d) the extent of the information disclosed in the emergency disclosure is no greater than is necessary to inform the journalist or parliamentarian of the substantial and imminent danger.
5 Information to include when reporting Reportable Conduct
You can disclose Reportable Conduct to the Company (or a related body corporate) anonymously or through a pseudonym. This means that you may refuse to answer questions that are likely to reveal your identity at any time, including during follow-up conversations.
However, if you do choose to remain anonymous, this can make it more difficult to make an assessment of and investigate the disclosure. If you choose to identify yourself, the Contact Officer is generally required to keep your identity confidential (see part 7 below).
If you make a disclosure, you should provide reasonable details to assist the Contact Officer to determine the best course of action, such as:
(a) when and where the relevant events occurred (e.g. dates and times);
(b) details of anyone involved; and
(c) any supporting information (e.g. documents, file notes, emails, photographs).
6 Assessment and investigation
The Company will assess and investigate the Reportable Conduct as soon as practicable after it has been reported by you.
6.1 Assessment of the disclosure
A Contact Officer will conduct a preliminary assessment, to determine whether the disclosure falls within the intended scope of this policy and requires further investigation. A Contact Officer has the discretion to determine that the Reportable Conduct will not be dealt with under this policy if it does not fall within the scope of applicable whistleblower legislation.
The particular assessment and investigation process and enquiries adopted will be determined by the nature and substance of the Reportable Conduct. In general, as soon as practicable upon receipt of the Reportable Conduct, if the report is not anonymous, a Contact Officer or investigator will contact you to discuss the investigation process including who may be contacted and such other matters as are relevant to the investigation. The Company may not be able to proceed if the Contact Officer is not able to contact you during the investigation process.
6.2 Investigation
An investigation will only take place if there is objective evidence to support the allegations within the Reportable Conduct, or, a reasonable suspicion that such evidence may be obtained through further investigation. A separate investigator may be appointed by A Contact Officer, but at all times the Company will ensure that investigations are independent of you, the individuals who are the subject of the disclosure, and the department or business unit involved. The investigation will be conducted in a fair manner, and otherwise as is reasonable and appropriate having regard to the nature of the Reportable Conduct and the circumstances. The investigation process should be conducted by the Company within a reasonable timeframe but the exact length of time will vary depending on the nature of the disclosure.
The investigator 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.
6.3 Investigation findings
The investigation may conclude with a report from the Contact Officer(s) or investigator. The report will include findings on the allegations and a summary of the evidence on which the findings are based.
The possible outcomes of the investigation are as follows:
(a) if the Reportable Conduct is proven, the investigator will report the outcome of the investigation to the appropriate decision-maker for further action. Where appropriate, you will be advised of the outcome;
(b) if the Reportable Conduct is not proven, but there is evidence of other inappropriate conduct, the matter might be referred to the appropriate decision-maker for further action. For example, if there is evidence of a breach of an employment policy; or
(c) if the Reportable Conduct is not proven, and there is no evidence of other inappropriate conduct, no further action will be taken and you will be advised accordingly, provided that the disclosure was not made anonymously.
7 Protections
The following protections apply not only to internal disclosures of Reportable Conduct, but to disclosures to legal practitioners, regulatory and other external bodies, and public interest and emergency disclosures that are made in accordance with the Corporations Act (set out in part 4.3).
7.1 Protection of identity and confidentiality
When making a disclosure, you may do so anonymously. All information received from you will be treated confidentially and sensitively, as is required under the Corporations Act. If you have chosen to reveal your identity when reporting the Reportable Conduct, the Company 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.
Whilst you are encouraged to share your identity when making a disclosure, as it will make it easier for us to address your disclosure, you are not required to do so. If you do not share your identity, the Company will assess your disclosure and conduct the investigation and its enquiries based on the information provided, however there may be some practical limitations in conducting the investigation.
If you choose not to give consent, then the person who knows your identity is only permitted to disclose your identity:
(a) to ASIC, APRA (or to the Commissioner of Taxation (Commissioner) in relation to a tax matter referred to in part 11) or the Australian Federal Police (AFP);
(b) to a legal practitioner to obtain advice; or
(c) in limited circumstances required by law, for example, where ordered by a Court in legal proceedings.
It is illegal for a person to identify a discloser, or disclose information that is likely to lead to the identification of the discloser, outside these exceptions above.
If reasonably necessary, information that does not reveal your identity may be disclosed to investigate your disclosure. The Company will take all reasonable steps to reduce the risk that you will be identified as a result including but not limited to reporting in a gender-neutral context and redacting all personal information. The Company will determine appropriate measures to protect whistleblowers including providing support services necessary.
If your identity is revealed without your consent, you may lodge a complaint with the Company about a breach of confidentiality. You may also lodge a complaint with a regulator, such as ASIC, APRA or the Australia Taxation Office (ATO), for investigation.
7.2 Detrimental Conduct prohibited
The Company strictly prohibits all forms of victimisation against you. This occurs where a person is subjected to detriment as a result of making a disclosure or someone else's belief/suspicion that the person has made or will make a disclosure (Detrimental Conduct).
Detrimental Conduct is any actual or threatened conduct that could cause a detriment to you as a result of you making a disclosure, including:
(a) termination of employment;
(b) harassment, bullying or intimidation;
(c) personal or financial disadvantage;
(d) unlawful discrimination;
(e) harm or injury, including psychological harm;
(f) damage to reputation; or
(g) any other conduct that constitutes retaliation.
7.3 Reporting Detrimental Conduct
If you believe that you have been subjected to Detrimental Conduct or are threatened with any Detrimental Conduct, as a result of making a report or because you may make a report under this policy, you should inform a Contact Officer immediately or make a separate report about the threatened or actual Detrimental Conduct. If any detriment is found to have been suffered by you, the Contact Officer must act to the extent possible to ensure that you receive fair treatment.
The Company will take all reasonable steps to protect you from Detrimental Conduct and will take action it considers appropriate where such conduct is identified. There are a range of options which could be made available to you if appropriate in the circumstance, for example:
(a) access to support services (including counselling or other professional or legal services);
(b) strategies to help you minimise and manage stress, time or performance impacts or other challenges arising from your disclosure or its investigation; and
(c) modifications to your work circumstances to allow you to perform your duties in alternative ways, such as from another location, or for individuals involved in the disclosure or the investigation to be assigned another role at the same level.
7.4 Protection of files and records
The Company's records created from an investigation should be retained under strict security in the course of the investigation. Access to all information relating to a disclosure will be limited to those directly involved in managing and investigating the disclosure.
7.5 Protecting individuals mentioned in a disclosure
Employees mentioned in Reportable Conduct, or to whom a disclosure relates, also need to be treated fairly. An employee who is the subject of a disclosure will be advised about the subject matter of the disclosure as and when required by principles of natural justice and procedural fairness and prior to any actions being taken—for example, if the disclosure will be the subject of an investigation. No decisions will be made about any allegation against them without proper investigation. Also, their involvement will be kept confidential, where practical and appropriate.
7.6 Protections under the legislation
You have additional protections under the legislation as follows:
(a) you will not be subject to any civil, criminal or administrative liability (including disciplinary action) for making a disclosure regarding Reportable Conduct;
(b) no contractual or other remedy can be enforced, and no contractual or other right can be exercised against you on the basis of the Reportable Conduct;
(c) if the disclosure is made to ASIC, APRA (or to the Commissioner in relation to a tax matter referred to in part 11) or is a public interest/emergency disclosure, then the information is not admissible in criminal proceedings or for the imposition of a penalty against you; and
(d) you may be entitled to compensation for Detrimental Conduct or any loss, damage or injury suffered because of a disclosure. Other remedies may be available depending on the type of detriment suffered, for example, a Court may grant an injunction to stop the Detrimental Conduct, require an apology to be given, or to re-instate you if you have been victimised by termination of employment.
Some of the protections referred to 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).
7.7 Involvement in wrongdoing
The Company may take disciplinary action against anyone found to have:
(a) victimised or threatened a whistleblower;
(b) disclosed information in breach of whistleblower protections; or
(c) lied or knowingly given false evidence in connection with Reportable Conduct.
If you have properly made a disclosure in accordance with the legislation, then you are entitled to the protections under the legislation and this policy, even if the allegations are ultimately found not to be proven.
8 Breach of policy
Breach of this policy may be regarded as misconduct, which may lead to disciplinary action (including termination of employment or engagement). An individual may also be exposed to criminal or civil liability for a breach of relevant legislation. Any alleged breach of this policy will be taken seriously and, if appropriate, will be separately investigated.
9 Review of this policy
The managing director of the Company must ensure this policy is reviewed annually to ensure it continues to comply with the relevant laws and ASIC policy and that any issues in its operation are identified and rectified.
10 Accessibility of this policy
This policy will be made readily available to the Company's officers and employees. For example, it may be disseminated in staff meetings or included in employee induction information packs and training for new starters. It will also be made available on the Company's external website.
The Company will provide training for employees about this policy and their rights and obligations under it. Similarly, the Company will provide training of managers and others who may receive whistleblower information about how to effectively deal with disclosures.
11 Taxation Administration Act 1953
11.1 Eligibility
The Tax Act gives special protection to disclosures about a breach of any Australian tax law by the Company or misconduct in relation to the Company's tax affairs.
To qualify for protection as a tax whistleblower, certain conditions must be satisfied. You must:
(a) be eligible to make a protected disclosure regarding Reportable Conduct under the Corporations Act as set out in part 2 above;
(b) report to anyone at the Company listed in part 4.1 above, being the Company's auditor or an audit team member, to the Company's registered tax or BAS agent (if any) or to a Company employee who has functions/duties that relate to the tax affairs of the Company or failing that report to the ATO; and
(c) consider that the information will help us or the recipient perform their duties under taxation law.
A whistleblower can also make such a disclosure to the Commissioner, in which case you should refer to their policy about how disclosures will be handled.
11.2 Protected information under the Tax Act
The Tax Act protects eligible tax whistleblowers who make a disclosure where:
(a) (if disclosing to the ATO) the whistleblower considers the information may assist the ATO to perform their duties under a taxation law in relation to the Company;
(b) the whistleblower discloses information which they have reasonable grounds to suspect indicates misconduct or an improper state of affairs in relation to the Company's tax affairs; or
(c) the whistleblower considers the information may assist the recipient to perform functions/duties in relation to the Company's tax affairs.
11.3 Whistleblower protection
When the conditions in part 11.1 and 11.2 are met, the disclosures regarding Reportable Conduct will be assessed and investigated in accordance with this policy and whistleblowers will be afforded the following protections:
(a) the whistleblower is immune from any civil, criminal or administrative legal action (including disciplinary action) for making the disclosure;
(b) no contractual or other remedies may be enforced, and no contractual or other right may be exercised, against the whistleblower for making the report;
(c) where the disclosure was made to the Commissioner, the reported information is not admissible against the whistleblower in criminal proceedings or in proceedings for the imposition of a penalty, except where the proceedings are concerned with whether the information is false;
(d) unless the whistleblower has acted unreasonably, a whistleblower cannot be ordered to pay costs in any legal proceedings in relation to a report;
(e) anyone who causes or threatens to cause detriment to a whistleblower or another person in the belief or suspicion that a report has been made, or may have been made, proposes to or could be made, may be guilty of an offence and liable to pay damages;
(f) a whistleblower's identity cannot be disclosed to a Court or tribunal except where considered necessary;
(g) the person receiving the report commits an offence if they disclose the substance of the report or the whistleblower’s identity, without the whistleblower’s consent, to anyone except the Commissioner of Taxation, the AFP or a lawyer for the purpose of obtaining legal advice or representation in relation to the report; and
(h) if a report is made, the identity of the whistleblower will be kept confidential unless the whistleblower consents to the disclosure of their identity, disclosure of details that might reveal their identity is reasonably necessary for the effective investigation of the allegations, the concern is reported to the Commissioner of Taxation or the AFP, or the concern is raised with a lawyer for the purpose obtaining legal advice or representation.
Adopted by the Board on 22/01/2020