The Company is committed to transparency and to building an environment in which people feel free to raise legitimate issues relating to the Company’s operations. The aim of this Policy is to help deter wrongdoing relating to the Company’s operations, by encouraging disclosure of wrongdoing and ensuring that anyone who makes a disclosure can do so safely, securely and with confidence that they will be protected and supported.
The Corporations Act 2001 (Cth) and the Taxation Administration Act 1953 (Cth) provide for protections for whistleblowers (Whistleblower Protection Scheme).
The purpose of this Policy is to set out information relating to the Whistleblower Protection Scheme, including information about:
This Policy applies to member companies of the Digital Investment Group. The Company means Digital Investment Group Limited ACN 608 992 534, which will perform the obligations under this Policy applying to each member company in the corporate group. If the Company has any related bodies corporate overseas, this Policy may need to be read subject to any applicable overseas legislation.
A disclosure will ‘qualify’ for protection under the Whistleblower Protection Scheme if:
Public interest and emergency disclosures also qualify for protection – see paragraphs 6.4 and 6.5.
The following persons are capable of being ‘eligible whistleblowers’:
An ‘eligible whistleblower’ also includes an individual who previously held any of the above positions or functions or who is a relative of the individuals set out above or a dependant of one of those individuals or of the spouse of such an individual.
A disclosable matter is information that:
The misconduct or an improper state of affairs can also be in respect of tax affairs.
Disclosable matters do not necessarily involve a contravention of a law. For example, ‘misconduct or an improper state of affairs or circumstances’ could involve conduct that, while not unlawful, indicates a systemic issue of concern that the relevant regulator should know about to properly perform its functions. It may also relate to business behaviour and practices that may cause consumer harm. Also, information that indicates a significant risk to public safety or the stability of, or confidence in, the financial system is a disclosable matter, even if it does not involve a breach of a particular law.
ASIC guidance indicates that disclosable matters include:
An eligible whistleblower who makes a disclosure must have ‘reasonable grounds to suspect’ the information to qualify for protection. The term ‘reasonable grounds to suspect’ is based on the objective reasonableness of the reasons for the eligible whistleblower’s suspicion. This means that even if a disclosure turns out to be incorrect, the protections will still apply, provided the eligible whistleblower had ‘reasonable grounds to suspect’. In practice, a mere allegation with no supporting information is not likely to be considered as having ‘reasonable grounds to suspect’. However, an eligible whistleblower does not need to prove their allegations.
Disclosures that are not about a disclosable matter are not covered by this Policy and do not qualify for protection under the Whistleblower Protection Scheme. However, such disclosures may be protected under other legislation, such as the Fair Work Act 2009 (Cth), for example, personal work-related grievances (set out in paragraph 5.3 below).
The Company must treat all reports of disclosable matters seriously and endeavour to protect anyone who raises concerns in line with this Policy. An eligible whistleblower can still qualify for protection under this Policy where their disclosure turns out to be incorrect.
However, deliberate false or vexatious reports will not be tolerated. Anyone found making a deliberate false claim or report will be subject to disciplinary action, which could include dismissal.
A disclosure does not qualify for protection under the Whistleblower Protection Scheme to the extent that the information disclosed:
A disclosure is a ‘personal work-related grievance’ if:
Examples of personal work-related grievances include:
Disclosures about personal work-related grievances should be raised under the Company’s existing grievance policy, which can be found in the Employee Handbook.
However, a personal work-related grievance may still qualify for protection if:
For the protections under the Whistleblower Protection Scheme to apply, a disclosure must be made directly to an ‘eligible recipient’. These people are detailed below. If you are an eligible whistleblower, your disclosure qualifies for protection from the time it is made to an eligible recipient, regardless of whether you or the recipient recognises that the disclosure qualifies for protection at that time.
An eligible whistleblower can make a disclosure internally to the persons set out below (referred to as Authorised Recipients) – each of whom has relevant experience to deal with such matters. Authorised Recipients can be contacted in the following ways:
Chief Executive Office
03 9034 6449
Whilst the Company encourages disclosures to an Authorised Recipient, if it relates to the CEO or a director of the Company, it should be raised directly with the Chair of the Board, who can be contacted in the following ways – by email – [email protected].
If you do not feel comfortable raising your disclosure with an Authorised Recipient, you could also raise it with any of the following:
While the Company encourages you to make disclosures internally, an eligible whistleblower may choose to raise disclosable matters outside of the Company with:
A report of a disclosable matter will also be protected if it is to a qualified legal practitioner for the purpose of taking legal advice or legal representation in relation to the operation of the whistleblower provisions in the Corporations Act.
There is an additional category of disclosures called ‘public interest disclosures’ that qualify for protection. These can be made to journalists and members of Parliament, but only if the eligible whistleblower complies with the following strict requirements:
There is an additional category of disclosures called ’emergency disclosures’ that qualify for protection. These can be made to journalists and members of Parliament, but only if the eligible whistleblower complies with the following strict requirements:
Before making a public interest or emergency disclosure, it is important that an eligible whistleblower understands the criteria for protection under the relevant legislation. Eligible whistleblowers should obtain independent legal advice prior to making any disclosure.
An eligible whistleblower can choose to make a disclosure anonymously and to remain anonymous over the course of the investigation and after the investigation is finalised. For example, they may do so because of concerns about their identity becoming known. If such concerns exist, an eligible whistleblower may prefer to adopt a pseudonym for the purposes of their disclosure (not their true name) – or to create an anonymous email address to submit their disclosure to an Authorised Recipient. Regardless, anonymous disclosures are still capable of being protected under the Whistleblower Protection Scheme.
Reporting anonymously may hinder our ability to fully investigate a reported matter. For example, an eligible whistleblower can refuse to answer questions that they feel could reveal their identity at any time, including during follow-up conversations. For this reason, we encourage anonymous eligible whistleblowers to maintain ongoing two-way communication with us (such as via an anonymous email address), so that we can ask follow-up questions or provide feedback.
Important protections relating to confidentiality and detriment apply to eligible whistleblowers who report disclosable matters in accordance with the Whistleblower Protection Scheme outlined in this Policy. The protections apply not only to internal disclosures, 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.
The Company takes contraventions of these protections very seriously and will take disciplinary action against anyone for doing so. If you have any particular concerns about this, you can raise them with an Authorised Recipient.
Civil and criminal sanctions also apply for breaches of these protections.
Strict confidentiality obligations apply in respect of any disclosures that qualify for protection under the Whistleblower Protection Scheme.
Unless the eligible whistleblower consents, it is against the law for a person to disclose an eligible whistleblower’s identity or any information that may lead to their identification (subject to the exceptions set out below).
The Company will protect the eligible whistleblower’s identity through:
In practice, it is important to recognise that an eligible whistleblower’s identity may still be determined if the eligible whistleblower has previously mentioned to other people that they are considering making a disclosure, the eligible whistleblower is one of a very small number of people with access to the information or the disclosure related to information that an eligible whistleblower has previously been told privately and in confidence.
It is likely that the Company will ask eligible whistleblowers to consent to the disclosure of their identity – or information that may lead to their identification. This consent may be needed to appropriately investigate and resolve the matter and/or prevent the disclosable matter occurring again.
If an eligible whistleblower does not consent to their identity being disclosed, it will still be lawful to disclose their identity to:
It will also be lawful to disclose information in a disclosure without the eligible whistleblower’s consent if this is reasonably necessary for the purpose of investigating the disclosure (provided the information does not include the eligible whistleblower’s identity and the Company takes all reasonable steps to reduce the risk that the eligible whistleblower will be identified as a result of the disclosure).
ASIC, APRA or the AFP can disclose the identity of an eligible whistleblower, or information that is likely to lead to the identification of the eligible whistleblower, to a Commonwealth, State or Territory authority to help the authority in the performance of its functions or duties.
If there is a breach of confidentiality, an eligible whistleblower can lodge a complaint with an Authorised Recipient or a regulator such as ASIC or APRA for investigation.
If your disclosure qualifies for protection set out in this Policy, it is likely you will be asked to provide consent to the disclosure of your identity or information that is likely to lead to your identification. This would be to facilitate any investigation and/or resolution of the matter. If consent is withheld, it may not be possible to adequately investigate and respond (if at all) to the disclosure.
An eligible whistleblower is protected from any civil liability, criminal liability and/or administrative liability (including disciplinary action) for making a qualifying disclosure in accordance with the Whistleblower Protection Scheme, and no contractual or other remedy may be enforced or exercised against the eligible whistleblower on the basis of a qualifying disclosure.
However, the protections do not grant immunity for any misconduct an eligible whistleblower has engaged in that is revealed in their disclosure.
The protections also make it unlawful for a person to engage in conduct against another person that causes or will cause a detriment:
Threats of detriments will also be unlawful if the person making the threat intended to cause fear that a detriment would be carried out or was reckless as to whether the person against who it was directed would fear the threatened detriment being carried out.
Threats may be express or implied, conditional or unconditional. An eligible whistleblower (or another person) who has been threatened in relation to a disclosure does not have to actually fear that the threat will be carried out.
The meaning of ‘detriment’ is very broad and includes:
It may be necessary during the course of an investigation to take reasonable administrative action to protect an eligible whistleblower from detriment (e.g. changing the whistleblower’s reporting line if the disclosure relates to a manager). Such conduct will not be detrimental conduct. A disclosure will also not prohibit the Company from managing (in the ordinary way) any separate performance issues that may affect the work of an eligible whistleblower.
A whistleblower may be subject to disciplinary action if, in the course of investigating a disclosure, the Company determines that the eligible whistleblower was complicit in the misconduct or improper state of affairs or has otherwise acted in an improper way.
Information about what the Company will do to provide support to and protect an eligible whistleblower is set out in paragraph 10. However, if an eligible whistleblower believes they have suffered detriment they can lodge a complaint with an Authorised Recipient or a regulator such as ASIC or APRA for investigation.
Courts are given broad scope to make orders remedying a detriment or threatened detriment. These include injunctions, compensation orders (including against individual employees and their employer), reinstatement, exemplary damages and the making of apologies. Civil and criminal sanctions also apply to breaches of the Whistleblower Protection Scheme. The Company encourages eligible whistleblowers to seek independent legal advice in regards to seeking compensation or other remedies.
Disclosures may also amount to the exercise of a workplace right by an employee or contractor. The Company and its employees are prohibited under the Fair Work Act 2009 (Cth) from taking adverse action against employees or contractors because they exercised or propose to exercise any workplace rights.
The Company will acknowledge receipt of a disclosure within a reasonable period, assuming the ‘eligible whistleblower’ can be contacted (including through anonymous channels). The Company will assess disclosures to determine whether:
Generally, if an investigation is required, the Company will determine:
Where practicable, the Company 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 Company considers relevant in the particular situation.
The Company 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.
Regular reporting – 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 Company will ensure that any updates provided will preserve confidentiality and will not compromise the anonymity of the eligible whistleblower.
Any method for documenting and reporting the findings will depend on the nature of the disclosure. Any reporting of findings will preserve confidentiality. There may be circumstances where it may not be appropriate to provide details of the outcome to the eligible whistleblower.
The Company is not obliged to reopen an investigation and it may conclude a review if it finds that the investigation was conducted properly, or new information is either not available or would not change the findings of the investigation. An eligible whistleblower may lodge a complaint with ASIC, APRA or the ATO, if they are not satisfied with the outcome of the Company’s investigation.
The Company is committed to transparency and to building an environment in which people feel free to raise legitimate issues relating to the Company’s operations. The Company is also committed to protecting eligible whistleblowers from detriment.
When a qualifying disclosure under the Whistleblower Protection Scheme is made, the Company will reiterate the requirements of this Policy to relevant individuals to ensure the protections are not undermined.
Disciplinary action up to and including dismissal may be taken against any person who causes or threatens to cause any detriment against an eligible whistleblower.
In addition, the Company’s usual EAP services will be available to all whistleblowers and other employees affected by the disclosure, should they require that support.
The Company may also consider a range of other matters to protect an eligible whistleblower from the risk of suffering detriment. These could include:
If the disclosure mentions or relates to employees of the Company other than the eligible whistleblower, the Company will take steps to ensure that those individuals are treated fairly. Typically, this would include giving those persons an opportunity to respond to the subject matter of the disclosure having regard to principles of procedural fairness. In addition, action would only be taken against such a person if there is cogent evidence of wrongdoing.
An eligible whistleblower will only be protected if they have objectively reasonable grounds to suspect that the information that they disclose concerns misconduct or an improper state of affairs or circumstances or other conduct falling within the scope of the Whistleblower Protection Scheme.
The protections under the Whistleblower Protection Scheme will not extend to vexatious or deliberately false complaints. If any investigation of a disclosure demonstrates that it was not made on objectively reasonable grounds, it will not be protected.
Depending on the circumstances, it may be appropriate for the Company to take disciplinary action against any person who does not have objectively reasonable grounds for their disclosure. Such action may include the termination of employment.
This Policy will be made available to the Company’s employees and officers via the Company’s internal HR Drive.
This Policy is not intended to go beyond the legislation. This Policy is not a term of any contract, including any contract of employment and does not impose any contractual duties, implied or otherwise, on Company. This Policy may be varied by the Company from time to time, including as part of any review described below.
The Company will periodically review this Policy and accompanying processes and procedures with a view to ensuring that it is operating effectively.
Training on this Policy forms part of the induction process for new employees and refresher training for existing employees may be offered from time to time. Specialist training will be provided to staff members who have specific responsibilities under the Policy, including the Company’s processes and procedures for receiving and handling disclosures, including training relating to confidentiality and the prohibitions against detrimental conduct.