Whistleblower Information Sheet
What is a Whistleblower?
A whistleblower is a person who discloses information about wrong doings for the benefit of the public. In Queensland, the law protects whistleblowers from criminal prosecution or legal action being taken against them. Whistleblowing is sometimes referred to as making a public interest disclosure and under the legislation, a whistleblower has rights.
Who is covered by the MDQ Whistleblower Policy?
This MDQ whistleblower policy and whistleblower protections are available to any eligible discloser who makes a disclosure that qualifies for protection.
Eligible disclosers include
- Employees, volunteers, students on placement (either current or past)
- Suppliers of goods and/or services to the organisation
- Recognised influential stakeholders including MDQ clients and family members, where the matter is relevant
The discloser qualifies for protection as a whistleblower if they are an eligible discloser and
- They are making a disclosure re a ‘disclosable matter’ directly to an ‘eligible recipient’’ or to ASIC, APRA, or another relevant Commonwealth body or a legal practitioner for the purposes of obtaining legal advice
- They have made an ‘emergency disclosure’ or a ‘public interest disclosure.’
What’s covered by MDQ’s Whistleblower policy?
The types of wrongdoings that can be reported i.e. disclosable matters include:
- Breaches against relevant legislation and/or offences against any other Commonwealth law that are punishable by 12 months (or more) imprisonment
- Fraud, embezzlement, or financial criminal mismanagement
- Any issue that represents a danger to the public
- Some (but not all) personal work-related grievances e.g. those which relate to infringement of the law; danger to the public, misconduct; breach of employment laws
The discloser needs to have reasonable grounds for suspicion.
Legislation which is applicable to whistleblower matters is as follows:
- Corporations Act
- Australian Securities and Investments Commission Act 2001
- Banking Act 1959
- Financial Sector (Collection of Data) Act 2001
- The Insurance Act 1973
- National Consumer Credit Protection Act 2009
Disclosures e.g. that solely relate to personal, work related grievances, that are not about ‘disclosable matters’ do not qualify for protection under the Corporations Act, however MDQ also has the Feedback and Complaints policy and procedures under which issues can be raised.
- A mere allegation with no supporting information is not likely to be considered as having ‘reasonable grounds to suspect,’ however, neither does a ‘discloser’ need to prove their allegations
- A discloser may make a reporting error which is acceptable, however is a person makes a deliberate, false report, they may be subject to investigation and disciplinary action for knowingly false reporting
How and to whom do I make a disclosure?
Internal Disclosure: To be able to qualify for protection as a whistleblower, the discloser needs to make a disclosure directly the organisation’s eligible recipient. At MDQ, eligible recipients are as follows:
- Chief Executive officer who is also the Company Secretary
- MDQ Board Chair
External disclosure: The discloser has the choice to make the disclosure directly to a regulatory body or other external party. Disclosures to legal practitioners to obtain legal advice are also protected under the Corporations Act.
A discloser can also obtain additional external information through:
- ASIC https://asic.gov.au/about-asic/asic-investigations-and-enforcement/whistleblowing/
- Australian Prudential Regulation Authority (APRA) https://www.apra.gov.au/become-a-whistleblower-and-make-a-public-interest-disclosure
- Australian Tax Office (ATO) https://www.ato.gov.au/General/Gen/Whistleblowers/
Public interest and emergency disclosures: These disclosures are made to a journalist or parliamentarian and can be made under certain circumstances and qualify for protection. It is important to understand the criteria under which these disclosures can be made. Conditions may include:
Previous external disclosure e.g. ASIC, with adequate time given for response and previous written notice to the body that the disclosure will be made
- The discloser does not have reasonable grounds to believe that adequate action is being taken
- In public interest or substantial and imminent danger
Anonymous disclosures: A discloser can choose to remain anonymous while making the disclosure, through the investigation and after its finalisation. The discloser can take all reasonable actions to protect his/her identity and MDQ will also work with the discloser to make modifications to achieve anonymity.
MDQ notes that anonymity adds complexity and challenges to the investigation which will be explained to the discloser
Making a disclosure: As stated earlier, there are internal and external disclosure options and disclosures can be made anonymously and securely.
Internal disclosures can be made via
- Email direct to the CEO or through the feedback form on mdqld.org.au
- Phone (07 32439700) to CEO or post (locked Bag 3000, Eagle Farm BC Qld 4009)
If the discloser has a concern and is unsure about whether it is a disclosable matter which qualifies for protection under the Corporations Act, that concern can be addressed through MDQ’ Feedback and Complaints processes, which in turn, has a high level of confidentiality . All disclosures are welcome as issues raised and addressed contribute to MDQ’s continuous improvement. For all feedback and issues raised, MDQ gives an undertaking to address the issues in a timely manner.
LEGAL PROTECTION AND SUPPORTS FOR WHISTLEBLOWERS
The following protections apply to all disclosers:
- Identity protection (confidentiality)
Confidentiality underpins the whistleblower legislation and it is illegal to identify the discloser or share information that may lead to his/her identity. If it is believed that MDQ has breached its duty related to confidentiality, the discloser can make a complaint to a regulator e.g. ASIC
Identity can only be shared under some circumstances e.g. with
- ASIC (or similar agency), the Australian Federal Police, a person or body prescribed by legislation
- Legal practitioner for the purpose of obtaining legal advice or representation
- Written consent of the discloser
Within MDQ, identity and disclosure details are protected in the following ways:
- Risk assessment and management plan undertaken to ensure the identity of the discloser is protected. Remedies will include
- All personal information or reference to the discloser is redacted
- Secure record keeping e.g. electronic copies only which are stored via password protected systems on secure /E/ drive
- Outlining to the discloser, their role in ensuring that information remains highly confidential
- Protection from detrimental acts or omissions
MDQ undertakes not to engage in the following related to the discloser and will treat all disclosers and parties associated with the disclosure with dignity and respect.
The following behaviours are expressly forbidden:
- Dismissal or alteration of the discloser’s position as a result of the disclosure
- Discrimination, harassment, harm, damage to reputation of the discloser.
MDQ will take any reasonable action to protect and support the discloser and others involved in the matter including:
- Risk assessment and management related to protection from detrimental acts
- Monitoring psychological status and offering access to MDQ’s EAP scheme
- Regular meetings with discloser and others with the goal of protecting and minimising stress. Reasonable modification will be made to their work location and practice to achieve this goal
- Mentoring re actions which can be taken if a detriment has already occurred e.g. assistance with lodging an external complaint, disciplinary action for another party
It is to be noted that MDQ will expect the discloser’s unrelated work performance to be reasonable and will manage any issues within our performance management framework.
- Compensation and other remedies
If the discloser believes that injustice was done, he/she has the right to seek compensation and other remedies through the judicial processes.
- Civil, criminal and administrative liability protection
The discloser is protected from civil, criminal and/or administrative liability associated with their disclosure. The protections do not grant immunity for any misconduct a discloser has engaged in which is uncovered I the investigation of their disclosure
INVESTIGATING A DISCLOSURE AND ENSURING FAIR TREATMENT AND PRACTICAL PROTECTION FOR ALL PARTIES
In handling any whistleblower disclosures, MDQ will follow the key steps of the MDQ Feedback and Complaints policy and procedures as follows:
Making the complaint
- To the appropriate MDQ officer
- Documenting the complaint
- Offering a support person and any relevant comforts and protections
- Ensuring confidentiality
Investigating the complaint
- Rights of discloser including
- Provision of informed consent for steps in the investigation
- Right to fairness, objectivity and independence in disclosure investigation
- Discloser is provided with ongoing information about progress of the investigation
- When the investigation begins
- While the investigation is in progress
- After the investigation has been finalised
- Confidence that the disclosure will result in positive change
- Investigating the disclosure
- Addressing the disclosure in a prioritised, timely and objective manner
- Developing and following a plan of the investigation which includes a risk assessment about matters previously stated. Plan will include:
- Nature and scop of investigation
- Direct and indirect participants
- Any technical, financial, legal advice which may be required to support the investigation
- Timeline which may vary depending on the complexity of the investigation, whether external referrals need to be made, discloser ability to co-operate, and predicted outcomes
- Confidential discussion with the discloser
- Discussions with other parties to the disclosure. Principles of natural justice and procedural fairness will be applied. Other parties will be offered a support person, along with confidentiality during the investigation
- Engagement with external parties as necessary
- Confidential documentation
- Documented outcome and actions which are implemented efficiently e.g.
- Procedural changes
- Referral for criminal investigation (at any time within the investigation)
- Ongoing analysis re achievement of outcomes
- Documentation and reporting
A report (redacted where necessary) will be prepared for the MDQ Finance and Risk Committee and findings will be explained to the discloser with a report provided as necessary
- Continuous improvement
Following finalisation of a disclosure the following steps will be taken with the goal of continuous change and improvement to MDQ’s practices:
- Summary of the disclosure/incident in the risk register and inclusion in the risk management assessment and plan
- Finance and risk committee to discuss, review and make recommendations to the board. Board to authorise changes for the CEO to implement
Updated January 2020