Whistleblowers perform an essential function in the community, ensuring that public officials are held to account and private individuals operate within the confines of the law. Protection of whistleblowers is therefore integral to fostering transparency, promoting integrity and detecting misconduct.
The Australian Financial Complaints Authority (AFCA) is committed to a culture aligned with our values in all aspects of our operations. The AFCA values are:
- fair and independent
- transparent and accountable
- honest and respectful
- proactive and customer focussed.
To foster this culture, we encourage anyone who has knowledge of, or reasonable suspicions of, any incident of a disclosable matter to report the matter through the appropriate channels at their earliest opportunity.
We also recognise the importance of ensuring a safe, supportive and confidential environment where people feel confident about such reporting and are supported and protected when they do so.
This policy establishes the minimum requirements for:
- encouraging, supporting and promoting the appropriate notification of disclosable matters
- ensuring that protections and protocols are in place to support people to report disclosable matters in an appropriate manner
- ensuring AFCA has independent, confidential and objective disclosure and investigation mechanisms
- conducting fair, unbiased, evidenced-based investigations in order to substantiate or refute claims of reportable conduct
- implementing a robust and trusted framework for escalating and addressing claims of reportable conduct
- ensuring that people acting honestly and ethically are able to report disclosable matters without fear of reprisal.
It is a requirement of the Corporations Act 2001 (the Act) that certain companies (including AFCA) have a policy which sets out the matters contained in this policy.
This policy applies to any person seeking protection under the whistleblower regime established in the Act in respect of any report concerning AFCA, its officers or employees, or the services that AFCA engages in.
Any breach of this policy may result in disciplinary action, up to and including dismissal of an employee, termination of a contract or other legal action.
This policy is not contractual in nature and may be amended by AFCA from time to time.
This policy is available on the AFCA intranet, and the AFCA website.
This policy only applies to:
- a disclosure of a 'disclosable matter'
- by an 'eligible whistleblower'
- to an 'eligible recipient'.
The meanings of these expressions are set out below.
A disclosable matter is:
- Information about AFCA where the Discloser has reasonable grounds to suspect that the information indicates AFCA (including their employees or officers) has engaged in conduct that:
- constitutes an offence against, or a contravention of the Corporations Act, the Australian Securities and Investments Commission Act 2001, the Banking Act 1959, the Financial Sector (Collection of Data) Act 2001, the Insurance Act 1973, the Life Insurance Act 1995, the National Consumer Credit Protection Act 2009, or the Superannuation Industry (Supervision) Act 1993, or instruments made under these laws
- constitutes an offence against any other law of the Commonwealth that is punishable by imprisonment for a period of 12 months or more
- represents a danger to the public or the financial system, or
- is prescribed by the regulations as a disclosable matter.
- information that the Discloser has reasonable grounds to suspect concerns misconduct (which includes fraud, negligence, default, breach of trust or breach of duty), or an improper state of affairs or circumstances in relation to AFCA, such as:
- breach of trust or duty
- dishonest and unethical behaviour
- conduct which is detrimental to AFCA and could cause financial or non-financial loss.
2.1.1 Non-disclosable matters
Any other inappropriate workplace conduct that is not a disclosable matter should be referred to the AFCA People and Culture Team for appropriate action in accordance with other relevant company policies and procedures.
Customer complaints or feedback about our service should be provided through our online feedback form, which may be accessed at: https://www.afca.org.au/what-to-expect/feedback-about-our-service/ or any of the following:
Phone: 1800 931 678
Post: Australian Financial Complaints Authority, GPO Box 3, Melbourne VIC 3001
Individuals can access the legal rights and protections for whistleblowers in the Corporations Act if you meet the definition of an ‘eligible whistleblower’. The Act provides that an eligible whistleblower is an individual that must be a current or former:
- employee of the company or organisation your disclosure is about, or a related company or organisation
- officer (usually that means a director or company secretary) of the company or organisation your disclosure is about, or a related company or organisation
- contractor, or an employee of a contractor, who has supplied goods or services to the company or organisation your disclosure is about, or a related company or organisation. This can be either paid or unpaid, and can include volunteers
- associate of the company or organisation, usually a person with whom the company or organisation acts in concert
- trustee, custodian or investment manager of a superannuation entity, or an officer, employee, or a goods or service provider to a trustee, custodian, investment manager, or
- spouse, relative or dependant of one of the people referred to above.
2.2.1 Identification of eligible whistleblowers
While you must hold or have held one of these roles noted above to access the protections, you do not have to identify yourself or your role, and you can raise your concerns anonymously.
It is a requirement under the Act for the identity of an eligible whistleblower, or for information likely to lead to the identification of an eligible whistleblower, to be kept confidential unless it is an 'authorised disclosure'.1 An authorised disclosure includes where the consent of the eligible whistleblower has been obtained.
It is an offence for a person to disclose such information if it is not an authorised disclosure.
Under the Act, an eligible recipient of a disclosable matter may be:
- An officer or senior manager of the regulated entity or any related body corporate
- An auditor, or member of an audit team conducting an audit, of the regulated entity or any related body corporate
- An actuary of the regulated entity or any related body corporate
- A person authorised by the regulated entity to receive disclosures that may qualify for protection under this policy
- ASIC or the Australian Prudential Regulation Authority (APRA)
- A legal practitioner for the purposes of obtaining legal advice or legal representation in respect of whistleblower protections.
An eligible whistleblower may report a disclosable matter through AFCA's external whistleblower service (External Whistleblower Service):
External Whistleblower Service
Stopline Pty Ltd
1300 30 45 50
C/o Stopline, locked bag 8, Hawthorn Vic Australia 3122
Australian Financial Complaints Authority, c/o Stopline
61 39882 4480
Smart phone APP available
Web is available 24 hours, 7 days per week. Phone is available from Monday to Friday, 8 am to 8 pm
The eligible whistleblower should keep a file note of any correspondence or discussions (including the date and time) for future reference.
2.3.2 Public interest disclosure
If an individual has made an eligible disclosure under this policy (prior disclosure), the individual may make further disclosure (the public interest disclosure) to a member of state or federal parliament or to a journalist (as defined in the Act) if, and only if, all the following conditions are met:
- At least 90 days has passed since the prior disclosure was made
- The individual does not have reasonable grounds to believe that action is being, or has been, taken to address the disclosable matters reported in the prior disclosure
- The individual has reasonable grounds to believe that making a further disclosure of the information would be in the public interest
- The regulated entity has been given written notification after the 90-day period of the intent to make a public interest disclosure of the disclosable matter previously reported in the prior disclosure and the prior disclosure has been clearly identified to the regulated entity
- The information provided in the public interest disclosure is no greater than is necessary to inform the recipient of the disclosable matters.
- If the conditions for an appropriate public interest disclosure are met, that disclosure will also qualify for protection under this policy.
2.3.3 Emergency disclosure
If an individual has made an eligible report under this policy (prior disclosure), the individual may make further disclosure (the emergency disclosure) to a member of state or federal parliament or to a journalist (as defined in the Act) if, and only if, all the following conditions are met:
- The individual has 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
- The regulated entity has been given written notification of the intent to make an emergency disclosure of the disclosable matter previously reported in the prior disclosure and the prior disclosure has been clearly identified to the regulated entity
- The information provided in the emergency disclosure is no greater than is necessary to inform the recipient of the substantial and imminent danger.
- If the conditions for an appropriate emergency disclosure are met, that disclosure will also qualify for protection under this policy.
AFCA will adopt the following procedures when an individual reports a disclosable matter under this policy.
An overview of the process is set out below.
The potential whistleblower should:
- read this policy (including these procedures) carefully
- seek advice if necessary
- decide, after ensuring that they are eligible, who the eligible recipient will be
- make a clear report of the disclosable matter that the individual wishes to report.
3.1.1 Information to include in a report
When providing a report, you should consider providing as many of the following details as possible, to assist AFCA or the External Whistleblower Service in determining the best course of action:
- Your name and contact details including a telephone number, postal address and an email address (noting that disclosures may be made anonymously)
- The specific nature of the disclosable matter
- The details of the person you think engaged in the relevant conduct
- When and where the disclosable matter occurred (for example, dates and times)
- Any other relevant events surrounding the disclosable matter
- Details of anyone else aware of, or involved in, the disclosable matter
- Details of anyone else who may verify your report
- If you did anything in response to the conduct and details of same
- If you are concerned about a possible reprisal and, if so, by who
- Any supporting information (for example, documents, file notes, emails, photographs)
- The information provided should be clear and factual.
The eligible recipient will either refer the report to the Contact Officer (with the consent of the individual making the report) or undertake the role of contact officer.
A Contact Officer's role is to:
- receive the report from an individual or the External Whistleblower Service in accordance with this policy
- conduct a preliminary assessment of whether:
- the individual is an eligible whistleblower; and
- the information is a disclosable matter
- refer reports of disclosable matters that warrant further investigation to an investigation officer
- ensure the timely resolution of reports of disclosable matters
- ensure the confidentiality of the eligible whistleblower's identity, unless it is an 'authorised disclosure' under the Act
- safeguard the interests of the eligible whistleblower in accordance with this policy, other policies of AFCA and any applicable legislation (that is, to protect the whistleblower from being disadvantaged or subjected to a detriment and respond to any concerns raised by them about being disadvantaged or subjected to a detriment)
- where required and practicable, keep the eligible whistleblower informed of the progress of the report
- confer with the decision maker regarding the outcome of any investigation into the report of a disclosable matter
- advise the eligible whistleblower of the outcome of the report of disclosable matters, including the findings of any investigation of the disclosable matter
- provide information to the AFCA Board, in accordance with this policy, regarding any reports of disclosable matters.
The Contact Officer for a particular report must not be involved or in any way connected with the alleged disclosable matter. If the Contact Officer has any involvement or connection with the alleged conduct, AFCA's Chief Ombudsman and CEO or delegate will assume this function and role and will oversee the preliminary assessment and any investigation.
The Contact Officer has direct, unfettered access to independent financial, legal and operational advice as required for the purposes of effectively carrying out this role and is deemed to have all relevant delegations and authorisations required to carry out these duties.
The External Whistleblower Service is managed by Stopline Pty Ltd, an independent service provider, on behalf of AFCA. The External Whistleblower Service is a dedicated service for eligible whistleblowers to report disclosable matters.
If you call the External Whistleblower Service, you will be given three options:
- Identification to External Whistleblower Service and consent to disclose your identity to AFCA
- Identification to External Whistleblower Service but request not to disclose your identity to AFCA
- No identification and to remain anonymous.
If you choose to remain anonymous, it may not be possible to consider / investigate the matter without further information. Although disclosures may be made anonymously, you may be asked to provide contact details, or to provide clarification or further information, if required to progress the matter.
3.4.1 Assessment of the report
The Contact Officer is responsible for conducting a preliminary assessment of any report received from a whistleblower, including through the External Whistleblower Service.
The objective of the preliminary assessment is to determine whether the report is or may be a legitimate disclosable matter, made by an eligible whistleblower, and if it requires further investigation.
A report will only warrant further investigation in circumstances where there is objective evidence of a disclosable matter, or a reasonable suspicion that such evidence exists and may be obtained through further investigation.
If required, the Contact Officer may need to contact the whistleblower (unless anonymous) to obtain further information before deciding to proceed and may also make initial enquiries with other relevant individuals.
3.4.2 Where there is insufficient evidence of a disclosable matter
If it is determined by the Contact Officer that the report does not indicate a disclosable matter or that the whistleblower is not an eligible whistleblower, or there is insufficient information or evidence to warrant further investigation, the whistleblower (unless anonymous) will be informed at the earliest possible opportunity.
In that event, no further action will be taken under this policy and the whistleblower (unless anonymous) will be advised accordingly by the Contact Officer. If such report indicates other inappropriate conduct including, for example, harassment, discrimination or bullying, such conduct may be investigated and/or otherwise addressed in accordance with AFCA's other relevant policies and procedures.
If there is sufficient evidence of a disclosable matter under this policy, or a reasonable suspicion that such evidence exists, the Contact Officer will refer the matter to an investigation officer for further investigation.
The Contact Officer must provide all of the information and documents received in respect of the whistleblower report to the investigation officer.
The Contact Officer will advise the whistleblower (unless anonymous) that the matter has been referred to the investigation officer, along with the identity of the investigation officer.
3.5.1 The investigation officer
The whistleblower investigation officer is the authorised officer appointed by the Contact Officer to investigate eligible whistleblower reports under this policy.
The investigation officer may be an AFCA employee or officer, or an external investigator, taking into account the nature and circumstances of the information disclosed.
The investigation officer must not be involved or in any way connected with the alleged disclosable matter. The investigation officer will also be independent of the business unit in respect of any allegations that have been made, the whistleblower or any person who is the subject of the report.
At all times, the investigation officer will have direct and unrestricted access to financial, legal and operational assistance as required for the purpose of effectively carrying out their role.
The investigation officer's role is to:
- ensure the timely investigation of alleged disclosable matters
- warn all investigation participants of their duty of confidentiality and prohibition on reprisal action, as outlined in this policy
- ensure procedural fairness in the course of any investigation into alleged disclosable matters
- uphold the AFCA values to the fullest extent possible, having regard to the requirements of this policy
- keep the Contact Officer informed of the investigation process, as requested by the Contact Officer, and the outcomes of the investigation.
3.5.2 The Contact Officer
The Contact Officer remains primarily responsible for efficiently addressing alleged disclosable matters.
Accordingly, the Contact Officer should:
- ensure the timely conclusion of any investigation
- continue communications with the eligible whistleblower, including keeping them informed of the process of the investigation and managing any risk of reprisal.
The investigation officer may also request that the Contact Officer obtain further information, as required, from the whistleblower throughout the investigation process.
Where a formal investigation is initiated, it will be conducted by the investigation officer or their delegate, as a fair and independent process, without bias.
The investigation process will involve:
- interviewing relevant witnesses
- collecting and considering any relevant documentary evidence
- making a determination based on sound, objective evidence
- documenting the findings.
Confidentiality will be maintained, as far as practicable, and in accordance with legal requirements. The investigation officer and/or the Contact Officer may need to disclose enough detail to relevant persons, both internal and external to AFCA, as provided in this policy, and in order to ensure the thorough investigation of the matter and an appropriate outcome and resolution.
The investigation officer must keep the Contact Officer informed of the progress of the investigation where requested by the Contact Officer, and of the final outcome of the investigation.
3.5.4 Investigation outcome
The investigation officer must determine whether the allegations of disclosable matters are proven on the 'balance of probabilities' – i.e. whether it is more likely than not that the alleged conduct has occurred.
Evidence of disclosable matters
If the disclosable matter is proven on the balance or probabilities, the Contact Officer will report the outcome of the investigation to an appropriate decision maker for further action.
No evidence of disclosable matters
If the disclosable matter is not proven on the balance of probabilities, but there is evidence of other inappropriate conduct, the Contact Officer will refer the matter to appropriate personnel at AFCA for further action in accordance with applicable policies and procedures. For example, the conduct may be in breach of AFCA policies, such as the Code of Conduct, but not amount to a disclosable matter.
If the disclosable matter is not proven on the balance of probabilities, and there is no evidence of other inappropriate conduct, no further action will be taken, and the Contact Officer will inform the whistleblower (unless anonymous) accordingly.
The decision maker decides what, if any, action should be taken in response to proven disclosable matters.
The decision maker must not otherwise be involved or in any way connected with the disclosable matter. The decision maker will also be independent of the whistleblower, any person who is the subject of the report, the Contact Officer and the investigation officer.
The decision maker is generally the Chief Ombudsman and CEO or their delegate. If the disclosable matter involves:
- the Chief Ombudsman and CEO, the decision maker will be the Chair of the Board or their delegate
- an AFCA director apart from the Chair, the decision maker will be the Chair
- the AFCA Chair, the decision makers will be the directors of the Audit and Risk Committee
- the AFCA Board as a whole, the issue will be referred to ASIC.
3.6.2 Decision outcomes
The decision maker will:
- determine how best to address proven disclosable matters in accordance with AFCA's established administrative and disciplinary procedures – which may include dismissal of an employee, termination of a contract or other legal action
- report the outcome of the decisions they make to the Contact Officer and to the AFCA Board, as appropriate
- report the outcome of the decisions process to other persons and/or regulators who it is necessary to report the outcome to in order to address the disclosable conduct, as determined by the decision maker. In doing so, the whistleblower’ s identity will continue to be protected in accordance with this policy
- will advise the whistleblower (unless anonymous) of the outcome of the investigation and any action taken in response to the report, except where such disclosure may breach applicable legislation.
To be covered by this policy, it is important that the person making the discloser has reasonable grounds to suspect concerns misconduct, or an improper state of affairs or circumstances.
Disciplinary action, up to and including dismissal of an employee, termination of a contract or other legal action, may be taken by AFCA if a report under this policy is not made in on the basis of reasonable grounds.
All AFCA officers, employees and agents are required to:
- cooperate with all parties involved in the investigation and outcomes of reports of disclosable matters (including, but not limited to, the Contact Officer, investigation officer and the decision maker)
- refrain from disclosing any matters of which they become aware relating to alleged disclosable matters, the investigation of alleged disclosable matters or proven disclosable matters, including in relation to the identity of a whistleblower, except as permitted by law.
The Contact Officer, investigation officer, decision maker and AFCA Board have the authority to make relevant disclosures in accordance with this policy where such disclosure is necessary to:
- ensure the efficient investigation of the matter, including communications between the Contact Officer, investigation officer, decision maker, investigation participants and the AFCA Board
- address any proven disclosable matter
- protect an eligible whistleblower from reprisal action
- mitigate the risks of any proven disclosable matter, or other inappropriate conduct, occurring in future
- identify any systemic issues
- comply with applicable laws.
Any person revealing the existence of, or details of, a report of disclosable matters, or alleged disclosable matters, contrary to this policy may be subject to disciplinary action, up to and including dismissal of an employee, termination of a contract or other legal action.
3.9.1 Internal reporting
The Contact Officer, the investigation officer and the decision maker may report disclosable matters and/or other reports to the AFCA Board at any time but are required to comply with legislative requirements regarding such reports.
The Contact Officer will also regularly report to the Board in relation to the number and substance (subject to the requirements of this policy) of any reports of disclosable matters.
This process allows AFCA to monitor disclosable matters and identify any systemic issues.
3.9.2 External reporting
AFCA will report any disclosable matters by an eligible whistleblower to the relevant authorities or regulators, as appropriate and as required by applicable legislation, and in accordance with this policy.
Any such disclosure to external authorities must be notified to the AFCA Board.
AFCA is committed to ensuring that eligible whistleblowers who make, or intend to make, a report of a disclosable matter are treated fairly and do not suffer any detriment as a result.
4.1.1 Protection of identity and confidentiality
Subject to compliance with legal requirements, the Contact Officer, investigation officer, decision maker and Board at AFCA will not disclose any particulars that would suggest or reveal a whistleblower’ s identity without first obtaining their consent, or unless otherwise necessary and permissible under the Act, or if compelled by law to make such disclosure.
4.1.2 Protection of files and records
All files and records created from an investigation will be retained under strict security by the Contact Officer, investigation officer and decision maker during and after any investigation under this policy.
Any release of information to someone not authorised will be a breach of this policy.
4.1.3 Protection from reprisal
It is unlawful under the Act and a breach of this policy to:
- cause a detriment to an eligible whistleblower because (or for reasons which include that) it is believed or suspected that someone has made, may have made, proposed to make, or could make, a report of a disclosable matter
- threaten to cause a detriment because a disclosable matter has been reported or because such a disclosure may be made ('reprisal action').
A 'detriment' includes (without limitation) any of the following:
- dismissal of an employee
- injury of an employee in his or her employment
- alteration of an employee’s position or duties to his or her disadvantage
- discrimination between an employee and other employees of AFCA
- harassment or intimidation of a person
- harm or injury to a person, including psychological harm
- damage to a person’s property
- damage to a person’s reputation
- damage to a person’s business or financial position
- any other damage to a person.
Any eligible whistleblower who is subjected to reprisal action, or threatened reprisal action, should immediately inform the Contact Officer.
The Contact Officer may need to work with other internal and external people in order to manage risks of reprisal, including the manager of the whistleblower or a person who is alleged to have engaged in reprisal action, the People and Culture Team, senior management or the AFCA Board.
Generally, the Contact Officer will do the following:
- Take appropriate interim action, which may include temporarily relocating the eligible whistleblower or a person who has taken, or is alleged to have taken, the reprisal action or changing the whistleblower’ s reporting line
- Conduct a preliminary assessment of any alleged reprisal
- Where warranted, conduct or arrange an investigation in relation to alleged reprisal action
- If the allegation of reprisal action is substantiated, refer the matter to a decision maker for further action
- Take action in a timely manner.
Anyone found to have engaged in reprisal action may be subject to disciplinary action, up to and including dismissal of an employee, termination of a contract or other legal action.
4.1.4 Other protections
The Act also provides eligible whistleblowers with certain other protections from personal liability and action taken against them and allows for a Court to order compensation and other remedies in their favour in certain circumstances2.
4.1.5 Whistleblower’ s involvement in any wrongdoing
A whistleblower may not be protected if they are found to have been involved in wrongdoing that constitutes a disclosable matter, other misconduct or conduct that is unlawful in nature. This may mean that a whistleblower will not be protected from disciplinary action in relation to their role in that wrongdoing (although in some cases the making of a report may be a mitigating factor).
1 See ss1317AAE(2)-(4) of the Act
2 For further information, see s1317AB, s1317AD and s1317AE of the Act.