The Song Room Limited (TSR) recognises the value in developing and fostering a culture of corporate compliance, ethical decision-making and protecting eligible whistleblowers who make protected disclosures from suffering detriment.
The purpose of this policy is to:
- Prevent and detect disclosable matters;
- Outline the process by which a protected disclosure may occur, including how and to whom a protected disclosure should be made;
- Outline the process by which TSR will investigate protected disclosures;
- Inform eligible whistleblowers who make protected disclosures about the protections from detriment; and
- Outline the process for fair treatment of persons to whom a protected disclosure relates or mentions.
- This policy applies to all employees, volunteers and officers of TSR.
- This policy will be made available to all employees, volunteers and officers of TSR via TSR’s website and intranet.
What is a protected disclosure?
A disclosure of information by an individual will be a protected disclosure for the purposes of this policy if:
- The discloser is an eligible whistleblower; and
- The disclosure is made to an eligible recipient (which could be done orally or in writing); and
- The disclosure is of a disclosable matter.
1. Disclosable matters
1.1 What is a disclosable matter?
Disclosable matters are disclosures of information by an eligible whistleblower:
- where the eligible whistleblower has reasonable ground to suspect that the information concerns misconduct or an improper state of affairs or circumstances (including but not limited to dishonest conduct, unlawful conduct, corruption or fraud) in relation to TSR; or
- where the eligible whistleblower has reasonable grounds to suspect that the information indicates that TSR or an officer or employee of TSR has engaged in conduct that:
- contravenes any provisions of the Corporations Act 2001, ASIC Act 2001, or an instrument or regulation made under any of those Acts; or
- contravenes any other law of the Commonwealth that is punishable by imprisonment for 12 months or more; or
- represents a danger to the public or the financial system; or
- in relation to a disclosure about affairs of TSR or an associate of TSR (within the meaning of section 318 of the Income Tax Assessment Act 1936) (associate) relating to any tax imposed by or under, or assessed or collected under, a law administered by the Commissioner of Taxation (tax affairs):
- that is made to an eligible recipient referred to in clause 1.Z(b), where the eligible whistleblower:
- has reasonable grounds to suspect that the information indicates misconduct, or an improper state of affairs or circumstances, in relation to the tax affairs of TSR or an associate; and
- considers that the information may assist the eligible recipient to perform functions or duties in relation to the tax affairs of TSR or an associate; or
- that is made to the Commissioner of Taxation, where the eligible whistleblower considers that the information may assist the Commissioner of Taxation to perform their functions or duties in relation to the tax affairs of TSR or an associate.
- that is made to an eligible recipient referred to in clause 1.Z(b), where the eligible whistleblower:
1.2 Personal work-related grievances
Personal work-related grievances of an eligible whistleblower are not disclosable matters, and are therefore not protected disclosures, except to the extent that they concern detriment to the eligible whistleblower in contravention, or alleged contravention, of clause 6.3.
Personal work-related grievances arise where the information disclosed:
- concerns a grievance about any matter in relation to the eligible whistleblower’s employment, or former employment, having (or tending to have) implications for the eligible whistleblower personally. For example, this includes, but is not limited to:
- interpersonal conflicts;
- decisions relating to the engagement, transfer or promotion of the eligible whistleblower;
- decisions relating to the terms and conditions of the eligible whistleblower’s engagement;
- decisions to suspend, discipline or dismiss the eligible whistleblower; or
- conduct (or alleged conduct) in respect of workplace bullying, harassment, sexual harassment or discrimination; and does not:
- have significant implications for TSR (or another organisation regulated by whistleblower protection laws) that are unrelated to the eligible whistleblower; and
- relate to conduct (or alleged conduct) set out in clauses 1.1(h)(i), 1.1(h)(ii) or 1.1(h)(iii)
- Matters relating to personal work-related grievances may be dealt with under TSR’s Discrimination, Harassment & Bullying Prevention policy.
2. Who is an eligible whistleblower?
An individual will be an eligible whistleblower if they are, or have been:
- an officer of TSR;
- an employee of TSR;
- an individual who supplies services or good to TSR;
- an employee of a person that supplies goods or services to TSR (apid or unpaid);
- an individual who is an associate of TSR (within the meaning of the Corporations Act 2001 (Cth)); or
- a relative, dependent or spouse of an individual referred to in any of clauses 1.2(d) to 1.2(h).
3. Who is an eligible recipient?
For disclosable matters referred to in clauses 1.1(g) or 1.1(h), each of the following is an eligible recipient to whom an eligible whistleblower may make a protected disclosure:
- a senior manager or an officer of TSR which, for the avoidance of doubt, includes TSR’s CEO, Director of Corporate Services, Director of Arts Learning, and members of the Board of Directors. Up to date contact details for those individuals are set out on TSR’s intranet;
- an auditor, or a member of an audit team conducting an audit, of TSR;
- an actuary of TSR;
- a Commonwealth entity; or
- where the eligible whistleblower is disclosing for the purpose of obtaining legal advice or legal representation in relation to the oprtation of relevant whistleblower legistation – a legal practitioner.
- For disclosable matters referred to in clauses 1.1(i) (in relation to tax affairs) each of the following is an eligible recipient to whom an eligible whistleblower may make a protected disclosure:
- the eligible recipients listed in clases 1.2(a)(i) and 1.2(a)(vii);
- an auditor, or a member of an audit team conducting an audit, of TSR;
- a registered tax agent or BAS agent who provides tax agent or BAs services to TSR;
- any other employee or officer of TSR who has functions or duties that relate to the tax affairs of TSR; or;
- where the eligible whistleblower considers that the information may assist the Commissioner of Taxation to perform their functions or duties in relation to TSR’s tax affairs – the Commissioner of Taxation.
- Before formally disclosing a disclosable matter to an eligible recipient, an eligible whistleblower may wish to seek additional information from the eligible recipient, or seek independent legal advice.
4. Emergency and public interest disclosure
Clause 4 does not apply to disclosable matters that relate to tax affairs.
4.1 Emergency disclosure
An eligible whistleblower may make an emergency disclosure to a Member of Parliament or a journalist where:
- they have already made a protected disclosure to ASIC, APRA or a Commonwealth authority; and
- they have reasonable grounds to believe that the information disclosed concerns a substantial and imminent danger to the health or safety of either:
- one or more persons; or
- to the natural environment; and
- they have notified the entity to which they made the protected disclosure that they intend to make an emergency disclosure; and
- the extent of the information disclosed in the emergency disclosure is no greater than necessary to inform the recipient of the substantial and imminent danger.
4.2 Public interest disclosure
An eligible whistleblower may make a public interest disclosure to a Member of Parliament or a journalist where:
- they have already made a protected disclosure to ASIC, APRA or a Commonwealth authority;
- at least 90 days have passed since the protected disclosure;
- they do not have reasonable grounds to believe that action has been or is being taken to address the matters to which the protected disclosure related;
- they have reasonable grounds to believe that making the public interest disclosure in accordance with clause 4.2 would be in the public interest;
- after the period referred to in clause 4.2.2 they have notified the entity to which they made the protected disclosure that they intend to make a public interest disclosure; and
- the extent of the information disclosed in the public interest disclosure is no greater than necessary to inform the recipient of the disclosable matters.
5. Investigation of protected disclosures
5.1 Investigation of protected disclosures made to TSR
The investigation procedure set out in clause 1 applies where an eligible whistleblower discloses a disclosable matter to an eligible recipient listed in clause 1.2(a)(i).
- In carrying out their obligations under this clause 1, all persons must ensure they do not breach the confidentiality requirements in clause 6.1.2.
- As soon as reasonably practicable after the eligible recipient receives a disclosable matter, the eligible recipient must:
- provide the eligible whistleblower with the protections set out in clause 6 on an interim basis until the investigation in clause 220.127.116.11 is finalised; and
- ask the eligible whistleblower if they consent to the eligible recipient disclosing their identity, or information that may identify them, to:
- the individuals occupying the positions listed in clause 1.4;
- the person(s) investigating the disclosable matter; and/or
- any other parties involved in the investigation of the disclosable matter, such as witnesses.
- Within a reasonable period of receipt of the disclosable matter, the eligible recipient must inform the CEO of the nature and substance of the disclosable matter.
If the disclosable matter involves information about the CEO, the eligible recipient should instead inform the Board of Directors.
The individual informed under clause 1.4 will:
- within 3 business days of receiving the information under clause 1.4, inform:
- the CEO of the nature and substance of the disclosable matter; or
- if the disclosable matter involves information about the CEO, instead inform the Chair or Deputy-Chair of the Board of Directors; and
- take all necessary steps to facilitate an investigation into:
- whether the eligible whistleblower disclosed a disclosable matter to an eligible recipient; and
- whether the protected disclosure is substantiated, partly substantiated, or unsubstantiated.
- An investigation under clause 1.5:
- may be undertaken internally or through the engagement of an external investigator. Where appropriate, the investigation may be undertaken under client legal privilege;
- will involve regular updates to the eligible whistleblower where deemed practicable and appropriate by the individual facilitating the investigation under clause 1.5;
- will be undertaken with the purpose of gathering all relevant evidence and in accordance with the rules of natural justice; and
- will be undertaken in a confidential manner, including compliance with the confidentiality requirements in clause 1.2. Information about the disclosable matter will only be disclosed where necessary in order for an investigation to proceed effectively.
- Where it is found under clause 18.104.22.168 that the eligible whistleblower disclosed a disclosable matter to an eligible recipient, then a protected disclosure is made out and the eligible whistleblower will be afforded the protections in clause 6 on an ongoing basis.
- If a protected disclosure is made and it relates to or mentions an employee or officer of TSR, TSR will ensure the fair treatment of the employee or officer by:
- to the extent possible given the requirements set out in clause 1.2, making the employee or officer aware of the nature of the allegations relating to or mentioning them and updating the employee or officer on the progress of the investigation;
- giving the employee or officer an opportunity to respond to the allegations relating to or mentioning them; and
- making the employee or officer aware of EAP services available to them.
- Protected disclosures made anonymously can still be protected under the Corporations Act 2001 (Cth). However, if TSR and/ or the investigator are not able to contact the eligible whistleblower, its ability to conduct an investigation into the protected disclosure may be limited.
6. Protections for eligible whistleblowers who make protected disclosures
6.1 Protection of identity
- An eligible whistleblower who makes a protected disclosure is not required to identify themselves to TSR or anyone else in order to be protected under this policy or the law.
- If a person obtains information as a result of a protected disclosure that identifies or is likely to identify the eligible whistleblower, that person must not disclose that information to any person except:
- with the eligible whistleblower’s consent;or
- to a legal practitioner for the purpose of obtaining legal advice or legal representation in relation to the operation of relevant whistleblower protection legislation; or
- to ASIC, APRA or the AFP; or
- if the protected disclosure relates to tax affairs – to the Commissioner of Taxation; or
- to any government authority for the purpose of assisting the authority in the performance of its functions or duties, as long as it has also been disclosed to ASIC, APRA or the AFP (or, if the protected disclosure relates to tax affairs, the Commissioner of Taxation).
- However, a person may disclose information (other than the actual identity of the eligible whistleblower) if reasonably necessary for the purposes of investigating a matter that is relevant to the protected disclosure and if the person takes all reasonable steps to reduce the risk that the eligible whistleblower will be identified as a result.
- An eligible whistleblower’s identity may be protected by TSR redacting certain information from documents, referring to the eligible whistleblower using language that does not identify their gender, age or role, and securely storing all materials relating to the protected disclosure.
6.2 Protection from certain liability
- An eligible whistleblower will not be subject to any civil, criminal or administrative liability for making a protected disclosure.
- However, this does not prevent an eligible whistleblower from being subject to any civil, criminal or administrative liability for conduct of the eligible whistleblower that is revealed by the protected disclosure.
- TSR will not exercise any contractual right, or seek any contractual remedy, against an eligible whistleblower on the basis that the eligible whistleblower made the protected disclosure, including termination of contract.
- If the protected disclosure is made to the Commissioner of Taxation, or is a public interest disclosure or an emergency disclosure, the information contained in the protected disclosure is not admissible in evidence against the person in criminal proceedings or in proceedings for the imposition of a penalty.
6.3 Protection from detriment
- An eligible whistleblower must not suffer detriment or be otherwise disadvantaged in reprisal for making a protected disclosure.
- Specifically, no one may cause or threaten to cause detriment to another person because they believe or suspect that any person may have made, proposes to make, or could make a protected disclosure.
- Detriment includes (but is not limited to):
- dismissal of an employee;
- injury of an employee in their employment;
- alteration of an employee’s position or duties to their disadvantage;
- discrimination between an employee and other employees;
- 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; and
- any other damage to a person.
- TSR will take all reasonable steps to protect eligible whistleblowers who make protected disclosures from suffering detriment including by:
- ensuring all individuals referred to in clause 2(a)(i) and 1.2(b)(iv) are trained to identify and report behaviour that causes detriment;
- ensuring that all employees and officers of TSR are made aware of this policy and the right to make a protected disclosure without suffering detriment; and
- enabling eligible whistleblowers to make a complaint to any of the individuals referred to in clause 3 if they believe they have suffered detriment.
6.4 Compliance with protections for eligible whistleblowers
An employee, volunteer or officer of TSR who fails to comply with clause 6.1.2, 6.3.1 or 6.3.2. may be subject to disciplinary action up to and including termination of employment. Such a person may also be in breach of the law, which may result in:
- civil liability to pay compensation, damages and/or a penalty; and/or
- criminal liability to pay penalties and/or a maximum of two years’ imprisonment.
6.4 Availability of compensation
A person may seek compensation and other remedies through the courts if they suffer loss, damage or injury because of detriment arising from a belief or suspicion that any person made or could make a protected disclosure, and TSR failed to take reasonable precautions and exercise due diligence to prevent that detriment.
7. Malicious disclosures
This policy provides employees, volunteers and officers of TSR with an avenue to raise legitimate and serious concerns about disclosable matters. It is unacceptable for TSR employees, volunteers and officers to make malicious and false disclosures, or to knowingly provide false or misleading information regarding a disclosure. The making of a malicious and false disclosure or the provision of knowingly false or misleading information may be subject to disciplinary action up to and including termination of employment.
TSR will carry out training for eligible recipients within TSR on how the respond to protected disclosures.
9. Review and amendment
This policy will be periodically reviewed (and, if necessary, amended) by TSR to ensure it is operating efficiently and complies with applicable legislation.