Purpose
The purpose of this Policy is to:
- provide you with an understanding of what can be reported under this Policy;
- demonstrate the importance the Australian Democrats place on ensuring a safe and supportive environment where our people feel confident to raise breaches of internal rules or Disclosable Conduct relating to the organisation, its branches, officers, employees or members;
- assist to create a culture within the Australian Democrats that encourages our people to speak up and raise breaches of internal rules or policy, or Disclosable Conduct relating to the Organisation, its branches, officers, employees or members;
- explain the processes for reporting breaches of internal rules or policy, or Disclosable Conduct, including what happens when you make a report; and to outline how you will be protected if you make a report.
Scope — who is covered
This Policy applies to a person who is or was:
- an officer or former officer of the Australian Democrats, or one of its branches; an employee or former employee of the Australian Democrats, or one of its branches;
- a member or former member of the Australian Democrats, or one of its branches; or a person who is (or was) a supplier to, or has (or had) a transaction with, the Australian Democrats or one of its branches;
- a person who is (or was) a supplier to, or has (or had) a transaction with, an officer or employee of the Australian Democrats or one of its branches; an employee (or former employee) of a supplier or person who had such a transaction;
- or a lawyer on behalf of a discloser in one of the above categories.
The scope of this Policy relates to conduct which breaches the Australian Democrats' internal rules and policies; and / or is Disclosable Conduct under the RO Act (including alleged reprisals for making a disclosure) as defined in this Policy (as well as in section 6 of the RO Act).
Defining Disclosable Conduct
Disclosable Conduct is conduct, as defined in the RO Act, that may be reported to the ROC or other responsible external agencies, which amounts to a suspected contravention of the law. Disclosable Conduct is defined in section 6 of the RO Act as an act or omission that:
- contravenes, or may contravene, a provision of this Act, the Fair Work Act or the Competition and Consumer Act 2010;
- or constitutes, or may constitute, an offence against a law of the Commonwealth.
Examples of Disclosable Conduct under the RO Act and Fair Work Act include:
- refusing membership of an organisation when eligible (s.166, RO Act);
- using an organisation's resources to favour one candidate over another in an organisation's elections (s.190, RO Act);
- breach of duties as an officer or employee in relation to financial matters (ss.285 to 288, RO Act);
- coercion to exercise or not exercise a workplace right (s.343, FW Act);
- adverse action due to membership / non-membership of an industrial association (s.346, FW Act);
- breach of right of entry notice requirements (s.487, FW Act);
- hindering or obstructing an entry permit holder (s.502, FW Act);
- dishonest conduct by an employee or officer of an organisation or branch.
What is (and isn't) 'Disclosable Conduct'
Not everything that can be complained about amounts to Disclosable Conduct. As defined above (and in the RO Act) Disclosable Conduct must be a suspected breach of the RO Act, the Fair Work Act or the Competition and Consumer Act 2010, or a criminal offence.
Examples of things which would be Disclosable Conduct include:
- a breach of an officer's duties to the organisation in relation to financial management;
- providing false or misleading information in a document;
- misuse of the organisation's resources;
- unauthorised payments being made;
- election-related offences;
- coercion to exercise or not exercise a workplace right;
- refusing membership to a person entitled to be a member;
- failing to lodge required documents.
Examples of things which would not be Disclosable Conduct include:
- complaints about the level of service received from the organisation or a particular official;
- a difference of opinion about a policy adopted by the organisation;
- not being elected or appointed to a particular position.
Reporting Disclosable Conduct
When a report is made, the Australian Democrats will:
- appoint a Whistleblower Protection Officer (the WPO) to provide support to the whistleblower;
- be satisfied that action taken in response to the inquiry/investigation is appropriate to the circumstances;
- ensure that all investigations are carried out in line with the principle of procedural fairness.
What happens when you report Disclosable Conduct to your Organisation?
When you report a matter of a breach of internal rules, policy or Disclosable Conduct under this Policy, you should provide as much information as possible. Information such as dates, times, location, individuals involved, other witnesses, physical evidence (e.g. documents, images) and any other general information may be helpful to assist the Australian Democrats to determine how to take appropriate action. Any information you provide to the Organisation may be used by the Organisation in assessment of an investigation or other appropriate action. Examples of actions could include:
- a satisfactory explanation can be provided in relation to the matter;
- the matter is resolved by speaking to one or more parties; the matter is recorded and monitored going forward;
- a decision is made to investigate (internally or via independent, external investigators);
- the matter is referred to another agency; or a combination of the above.
If the Australian Democrats determines that your matter should be investigated, the investigation may be conducted by the Whistleblower Investigation Officer (WIO), an appropriately capable officer or employee of the Organisation nominated by the WIO, or by an external investigator appointed by the Organisation. All investigations will be conducted in a manner that is procedurally fair, confidential, conducted without bias and in a timely manner.
At the end of an investigation, you may be informed of the outcome of the investigation by the Australian Democrats. The Australian Democrats may in certain circumstances, whether required by law or in its discretion, inform the ROC, the Fair Work Commission or the relevant authority of any contents of the investigation. Additional information and resources can be found at the ROC's website www.roc.gov.au.
How you are protected
Confidentiality
If you report a breach of internal rules or policies, or a concern relating to Disclosable Conduct to the Australian Democrats under this Policy, you will have your details, and the information you provide, treated in strictest confidence. The Australian Democrats will only share your details on a need to know basis with those within the Australian Democrats who have a role to play in looking into your matter. In addition, there may be certain times under applicable law where the Australian Democrats is required to share your details as part of its legal obligations.
Protection
The Australian Democrats is committed to ensuring that if you raise a matter under this Policy you are provided support and protection from reprisal or personal or financial disadvantage because of making that report. You will be protected under the RO Act when you raise a matter relating to Disclosable Conduct within your Organisation, just the same as you would have been if you had raised the Disclosable Conduct with the ROC. This extended protection is another reason raising matters within your Organisation in the first instance is usually the quickest and most effective option.
Protection under the RO Act
The RO Act provides protection to a person who makes a 'protected disclosure'. A protected disclosure is defined in the RO Act. To qualify as a protected disclosure, the disclosure must:
- be made by a discloser listed in this Policy;
- be about suspected Disclosable Conduct (i.e. a suspected contravention of relevant Commonwealth laws);
- be capable of being reported to an authorised recipient in a relevant government agency.
This confirms that under the RO Act, if you raise Disclosable Conduct within the Organisation, you will be afforded the same protection from reprisal as if you had reported the eligible disclosure to the ROC or another authorised recipient in an external agency.
Reprisals
A discloser is protected from reprisal being taken against them, to their detriment (whether by act or omission), as a result of making that disclosure. A person (the first person) takes a reprisal against another person (the second person) if the first person causes (by act or omission) any detriment to the second; and when the act or omission occurs, the first person believes or suspects that the second person or any other person made, may have made, proposes to make or could make a disclosure that qualifies for protection under the Act.
Detriment is defined in Section 337BA of the RO Act and includes (without limitation): dismissal of an employee; injury of an employee in his or her employment; alteration of an employee's position to his or her detriment; discrimination between an employee and other employees of the same employer; harassment or intimidation of a person; harm or injury to a person, including psychological harm; damage to a person's property; and damage to a person's reputation.
Reprisals may be the subject of criminal penalties, civil penalties or other civil remedies (such as reinstatement, injunctions, etc) if the disclosure is the reason (or part of the reason) for the reprisal action being taken. A discloser who makes a protected disclosure will not be subject to:
- any criminal or civil liability for making the disclosure (s 377B(1)(a)); or
- the enforcement of any contractual or other right or remedy against them on the basis of their disclosure (s 377B(1)(b)).
The ROC's Fact Sheet Protection for Whistleblowers (FS003) — available on the ROC website — provides comprehensive information on the protections available.
Anonymity
Anonymous reports of wrongdoing are accepted under this Policy. Anonymous reports may have significant limitations that inhibit a proper and appropriate inquiry or investigation. These limitations may include the inability to provide feedback on the outcome and/or to gather additional particulars to assist the inquiry/investigation.
Failure to comply with this Policy
Any breach of this Policy may result in disciplinary action, including dismissal from the Australian Democrats.
Reporting Disclosable Conduct to an external agency
If your matter relates to Disclosable Conduct and it is not practical to report your matter within the Australian Democrats in the first instance, you can report Disclosable Conduct to the relevant external agency. You must make the disclosure to one of the following:
- the Commissioner or the staff of the ROC;
- the General Manager or the staff of the Fair Work Commission (the FWC);
- an FWC Member; the Australian Building and Construction Commission (the ABCC) Commissioner, their Deputy or an inspector of the ABCC;
- the staff of the Fair Work Ombudsman.
A person does not need to use the word 'whistleblower' to be protected, however using it may help the agency receiving the information quickly recognise the importance of the disclosure. The person also has no obligation to give the agency their name or contact details, however this can have implications as to whether a disclosure is able to be properly investigated.
For further details as to what constitutes Disclosable Conduct, visit the ROC's website: www.roc.gov.au and read the information on "What is Disclosable Conduct".
Footnotes. For example, a discloser may include an employee of a State registered association if that association provides services to a federally registered organisation or branch. Disclosable Conduct can also be reported directly to the ROC at regorgs@roc.gov.au.
This policy is modelled on the Australian Government Registered Organisations Commission template TF 013 / 6 Dec 2019. It was authorised by National Executive, October 2020.