Updated: January 2024

Contents

1 Introduction

1.1 Policy statement

1.2 Purpose of the policy

1.3 Scope of the policy

1.4 Availability of the policy

2 Policy

2.1 What is a disclosable matter?

2.2 Who is an eligible whistleblower?

2.3 Identification of eligible whistleblowers

2.4 Who is an eligible recipient?

2.5 AFCA authorised contact points for disclosures

2.6 Public interest disclosure

2.7 Emergency disclosure

3 Whistleblower procedures

3.1 What should the individual do first?

3.2 What will the eligible recipient do?

3.3 External whistleblower service

3.4 Preliminary assessment

3.5 Whistleblower investigation

3.6 Addressing proven disclosable matters

3.7 Confidentiality

3.8 Reporting

4 Whistleblower protections

4.1 Whistleblower protections

1 Introduction

1.1 Policy statement

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. Protection of whistleblowers is integral to fostering transparency, promoting integrity and detecting misconduct.

1.2 Purpose of the policy

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.

1.3 Scope of the 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.

To be covered by this policy, it is important that the person making the disclosure has acted in good faith - i.e. disclosure is genuine - and there are reasonable grounds to suspect misconduct, or an improper state of affairs or circumstances.

This policy is not contractual in nature and may be amended by AFCA from time to time.

1.4 Availability of the policy

This policy is available on the AFCA intranet, the AFCA website and on request from the Contact Officer (see section 2.4.1 below).

2 Policy

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.

2.1 What is a disclosable matter?

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:
  • fraud
  • negligence
  • breach of trust or duty
  • default
  • 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 will be referred to AFCA's People and Culture Team for appropriate action in accordance with 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: feedback about our service or any of the following:

2.2 Who is an eligible whistleblower?

Individuals can access the legal rights and protections for whistleblowers in the Corporations Act if you meet the definition of an ‘eligible whistleblower’.  In AFCA’s context, the Act provides that an eligible whistleblower is an individual that must be a current or former:

• employee of AFCA, 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 AFCA, or a related company or organisation. This can be either paid or unpaid, and can include volunteers
• spouse, relative or dependant of one of the people referred to above.

2.3 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.

2.4 Who is an eligible recipient?

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.

2.5 AFCA authorised contact points for disclosures

An eligible whistleblower may report a disclosable matter  through AFCA's external whistleblower service (External Whistleblower Service):

	External Whistleblower Service
Position	Stopline Pty Ltd
Phone	1300 30 45 50
Email	afca@stopline.com.au
Web	Stopline Report
Post	C/o Stopline, locked bag 8, Hawthorn Vic Australia 3122

Where possible, Stopline will explain identity protection options to disclosers and request their explicit consent for various types of information sharing and data storage. Disclosers may choose for their disclosure to be anonymous (their identity remains unknown to all parties) or confidential (their identity is known to Stopline but remains unknown to AFCA). Callers can also choose for their identity to be known by both parties.  If the discloser chooses for their identity to be known only by Stopline, they can act as an intermediary, allowing AFCA to communicate with the discloser about the issue, without learning their identity. Completely anonymous disclosers are provided with a unique number and password. This allows them to get back in touch with Stopline later, for example to provide further information or seek an update.

The eligible whistleblower should keep a file note of any correspondence or discussions (including the date and time) for future reference.

2.6 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.

2.7 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.

3 Whistleblower procedures

AFCA will adopt the following procedures when an individual reports a disclosable matter under this policy.

A summary overview of the process is set out below.

3.1 What should the individual do first?

The potential whistleblower should:

• read this policy and procedure carefully
• seek advice if necessary
• decide, after ensuring that they are eligible, who the eligible recipient of their report 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/s 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.

3.2 What will the eligible recipient do?

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
• maintain proper documentation of the disclosure and subsequent actions taken. This includes keeping confidential records of the disclosure itself, any investigations, and the outcomes.
• conduct a preliminary assessment of whether:
  • the individual is an eligible whistleblower; and
  • the information is a disclosable matter
• seek legal advice, as required, to ensure compliance with specific provisions of the Act
• refer reports of disclosable matters that warrant further investigation to an appropriate 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.

3.3 External whistleblower service

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. Matters can be lodged with the External Whistleblower service by phone, online form or by email.

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 Preliminary assessment

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.

3.4.3 Where further investigation is warranted

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 Whistleblower investigation

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. An external investigator may be an individual or firm that AFCA engages to independently investigate a whistleblower report. 

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. ²

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.

3.5.3 Investigation

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.

3.6 Addressing proven disclosable matters

3.6.1 The decision maker

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.

3.7 Confidentiality

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.

3.8 Reporting

3.8.1 Internal reporting

The Contact Officer, the investigation officer and the decision maker or their delegate 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 or their delegate 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.

3.8.2 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.

4 Whistleblower protections

4.1 Whistleblower protections

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 AFCA Board 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 circumstances³.

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).