This document provides an overview of the Whistleblower Policy for the NSW Mineral Council Ltd (NSWMC). As a public company limited by guarantee, the NSWMC is required to have a Whistleblowing Policy.
The NSWMC has implemented this Whistleblower Policy with the aim of establishing a process whereby Directors, staff and service providers may notify incidents of suspected fraud, bribery, corruption or Misconduct or be able to make notifications on ‘Information of Concern’. This Policy endeavours to take reasonable steps to protect the identity of any staff member who reports such an allegation. Confidentiality and anonymity are key elements of the NSWMC Whistleblower program.
Whistleblowing provides the NSWMC with an early warning system. Serious problems, if they go unchecked, are likely to be repeated, could get worse, may be seriously damaging to the NSWMC’s reputation, work may not be undertaken to the required standard or may be undertaken by persons not fit and proper to perform their duties, role, engagement or assignment. There may be legal or regulatory implications and this could also create a workplace where the NSWMC’s ethical standards are not being met. If a Whistleblowing matter is not dealt with appropriately or the Whistleblower is subjected to reprisal or victimisation, this can result in a continuation of Misconduct which could be detrimental to the NSWMC’s operations and the morale of staff members.
The Whistleblower Policy is a mechanism by which Directors, staff and service providers can confidentially and anonymously, if they wish, make a Whistleblowing notification or provide Information of Concern. Where they believe on reasonable grounds that the matter will show evidence of Misconduct, fraud, corruption or an improper state of affairs, they can rely on the protection afforded by the Policy when making a notification. Employees also have the option to approaching the Chief Executive Officer (CEO) or Director Finance and Operations directly if they decide to report suspected Misconduct in relation to bullying, harassment and discrimination.
This policy should be read in conjunction with NSWMC’s other policy documents.
The following definitions apply for the purpose of the Policy
Eligible recipients means the person or persons authorised to receive whistle blowing notifications and are disclosed in Appendix 1.
Misconduct means the matters referred to in Appendix 2(3) including:
● Fraudulent or corrupt activity;
● Conduct which breaches certain Commonwealth legislation
● Inappropriate or illegal conduct of a Director, Manager, employee, contractor, service provider or Auditor;
● Substantial mismanagement of the NSWMC’s resources;
● Misleading or deceptive conduct in providing any of the NSWMC’s services;
● Conduct involving substantial risk to health or safety;
● Conduct involving bullying, harassment or discrimination; and
● Breach of confidentiality obligations.
Information of Concern means information about behaviours, accounting, internal control, compliance, audit and other matters about which there may be a suspicion of Misconduct.
Investigator means the party appointed by the authority recognised in this Policy to investigate the whistleblowing disclosure.
Vexatious means a notification, which is without merit, and solely to harass or discredit another person.
Whistleblower means any person who makes or attempts to make an allegation of Misconduct.
Whistleblower Officer means the person or persons specified in Appendix 1.
Any notifications will be treated in a confidential and sensitive manner.
Any Director, staff or service provider may make an anonymous notification to the Whistleblower Officer. However, it should be noted that anonymous notifications do not always attract statutory protection.
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 in Appendix 1.
All reasonable steps will be taken to protect the identity of any person making a notification. This cannot be guaranteed if the Whistleblower has informed other persons of the fact that they have made such notification or intend to make such notification. Nor can the guarantee of anonymity be guaranteed where the investigation leads to charges being made in court.
This Policy forbids the NSWMC and its personnel from acting in any manner that penalises, victimises or that can be reasonably construed as penalising any person for making a non-vexatious disclosure under this Policy. However Directors, staff and service providers are discouraged from making notifications that are of a trivial, malicious or Vexatious nature.
A Whistleblower who was also involved in the Misconduct, will not receive any protection. However, in the event of voluntary disclosure this may be a mitigating factor when considering the nature of any disciplinary or legal action against the Whistleblower.
This Policy affords privacy protections, natural justice principles and procedural fairness in any investigation, notifications and subsequent actions made in respect of this Policy for the Whistleblower and the person against whom the allegations are made.
For further particulars of Whistleblower protection in respect of disclosures, refer to Appendix 2.
4. Notification Procedures
4.1 How Do You Make a Notification?
The NSWMC maintains internal and Board whistleblowing reporting channels through which suspected Misconduct can be reported. Prior to utilising these whistleblowing channels, parties who wish to make a notification should consider whether it is one which can be addressed satisfactorily by referring the matter through their normal reporting lines to their immediate supervisor or to the CEO)or Director Finance and Operations.
However, if the notification is of a more serious nature, it should be addressed through the Whistleblowing Channels identified in Appendix 1.
Disclosures outlined in Appendix 2 are also subject to protection under this policy.
NSWMC will make the Whistleblower Policy available on its website.
4.2 What is the Content of the Notification?
All whistleblowing reports will be recorded in a secure system maintained with appropriate access restrictions. Disclosures made on suspected bullying, harassment and discrimination will be limited in access to the CEO and Director Finance and Operations only. All other matters will only be accessible by the Whistleblowing Officer.
4.3 Disclosure to external regulatory bodies
While it is the NSWMC's preference for disclosures to be made internally – to give the NSWMC the opportunity to investigate and deal with them – an eligible whistleblower may choose to raise disclosable matters outside of the NSWMC with:
(a) ASIC https://asic.gov.au/
(b) A Commonwealth authority prescribed in the Corporations Regulations.
4.4 Disclosure to a legal practitioner
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 (even in the event that the legal practitioner concludes that a disclosure does not relate to a ‘disclosable matter’).
4.5 Public interest disclosures
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:
(a) The eligible whistleblower must have first made a qualifying disclosure to ASIC or a prescribed
(b) At least 90 days must have passed since the qualifying disclosure was made;
(c) The eligible whistleblower must not have reasonable grounds to believe that action is being, or has
been, taken to address the matters to which the qualifying disclosure related;
(d) The eligible whistleblower must have reasonable grounds to believe that making a public interest
disclosure would be in the public interest;
(e) After 90 days must have passed, the eligible whistleblower must give the body to which the qualifying
disclosure was originally made, a written notification that:
(i) Includes sufficient information to identify the qualifying disclosure; and
(ii) States that the eligible whistleblower intends to make a public interest disclosure; and
(f) The extent of the information disclosed in the public interest disclosure is no greater than to inform the journalist or Member of Parliament of the misconduct or improper state of affairs or circumstances, or other conduct falling within the scope of the whistleblower protection scheme.
4.5. Emergency disclosures
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 discloser complies with the following strict requirements:
(a) The discloser must have first made a qualifying disclosure to ASIC or a prescribed Commonwealth
(b) The discloser must have reasonable grounds to believe that information concerns a substantial and
imminent danger to the health or safety of one or more persons or to the natural environment;
(c) The discloser must have given notice to the body to which the qualifying disclosure was made that
(i) That they intend to make an emergency disclosure; and
(ii) Have included sufficient information to identify the qualifying disclosure; and
(d) The extent of the information disclosed in the emergency disclosure must not be more than is
necessary to inform the journalist or Member of Parliament of the substantial and imminent danger.
5. Investigation Procedures
Investigation of whistleblowing disclosures will follow two pathways:
1) disclosures relating to bullying, harassment and discrimination will be investigated by the CEO;
and 2) all other disclosures will be investigated by the Whistleblower Officer or an alternate authorised
by the Board.
Where whistleblowing disclosures are made through the Board reporting channel, the Board member (who receives the notification) will record the confidential disclosure and share it only with a designated NSWMC representative in accordance with the pathways above. The designated NSWMC representative will manage the investigation and provide the service provider with confidential feedback for the Whistleblower.
All investigations will be conducted as soon as practicable after the matter has been notified. Investigations will be undertaken in such a way to ensure that natural justice, procedural fairness and privacy protections are afforded to the parties involved.
During the investigation the Investigator will maintain appropriate records regarding the progress of the investigation and will maintain contact with the Whistleblower as per the agreed process.
The process of finding out the truth of suspected serious concerns about wrongdoing must be impartial. This means that the investigator will not take sides and will not have a preconceived outcome in mind. Anyone who is the subject of an investigation must be given an opportunity to put forward their position and respond to the allegations made against them. However, they do not have a right to any information about who raised the issue.
Where Misconduct is confirmed through investigation, the NSWMC will undertake appropriate corrective actions, in accordance with NSWMC policies and legal and regulatory obligations. The Whistleblower will be provided appropriate feedback on the state of the investigation, findings and corrective actions.
The NSWMC has a duty of care to protect staff from discrimination and harassment in the workplace. In relation to a Whistleblower, this includes:
● ensuring a proper and adequate investigation is undertaken of serious matters raised as well as any allegations made against the Whistleblower;
● providing a system of pro-active assistance and protection for the Whistleblower, that includes taking active steps to prevent victimisation or harassment;
● giving support and guidance to the Whistleblower (the nature of such support and guidance will be determined by the Whistleblower Officer in consultation with the Whistleblower, according to the circumstances and the specific needs of the Whistleblower);
● reassuring the Whistleblower that they have done the right thing; and
● keeping the Whistleblower informed of any action taken in respect of the matter raised.
The purpose of this Whistleblower policy is to encourage a speak-up culture under which allegations of misconduct can be raised in a safe and confident manner. However, if a person is found to have made a report solely on Vexatious grounds, the circumstances giving rise to the Vexatious report will be investigated by a party nominated as stated in section 2. This party will be requested to make a recommendation for the nature of any action that will be taken, if any, against the party who lodged the complaint. The action taken may be a reprimand, suspension or, in extreme cases, dismissal. Such action will be determined by the parties who appointed the investigator, after taking into account the recommendations issued by the investigator.
WHISTLEBLOWING REPORTING LINES
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.
Under the whistleblowing legislation any member of senior management is an Eligible recipient. Having regards to the size of the NSWMC, NSWMC suggests that disclosures should be made to the Whistleblower officer or the CEO.
A copy of the internal Whistleblower Notification Form is attached to this policy and available on NSWMC Google Drive.
Ms Christina Langby Telephone: 0409 665 680 Email: firstname.lastname@example.org
Chief Executive Officer
Mr Stephen Galilee Telephone: 02 9274 1429 Email: email@example.com
NSW Minerals Board Members
The NSWMC Board members are Eligible recipients of Whistleblower notifications.
Mr Tony McPaul Regis Resources Email: firstname.lastname@example.org
Mr Mick Buffier Glencore Email: Mick.Buffier@glencore.com
Mr Paul Flynn Whitehaven Coal Email: email@example.com
Mr Lawrie Conway Evolution Mining Email: Lawrie.Conway@evolutionmining.com.au
Mr Reinhold SchmidtYancoal Australia Limited Email: firstname.lastname@example.org
Ms Katie Brassil Centennial Coal Email: email@example.com
Ms Justine Fisher Clean TeQ Holdings Limited Email: firstname.lastname@example.org
DISCLOSURES QUALIFYING FOR PROTECTION OF WHISTLEBLOWER
A whistleblowing disclosure qualifies for protection where:
1) the Whistleblower is a current or former:
a) officer of the NSWMC;
b) employee of the NSWMC;
c) service provider (or employee of) to the NSWMC; or
d) a relative or dependent of any of the above; and
2) the disclosure is made to:
a) a person authorised under this Policy including the Whistleblowing Officer and Chief
b) a director, secretary or Chief Executive of the NSWMC;
c) the auditor (or member of an audit team conducting the audit) of the NSWMC; or
d) a regulator of the NSWMC; and
3) the disclosure is made on reasonable grounds concerning suspected Misconduct, an improper
state of affairs, or circumstances in relation to the NSWMC that indicates:
a) an offence under the Corporations Act, the ASIC Act, the Banking Act, the Data Collection Act, the Insurance Act, the Life Insurance Act, the National Consumer Credit Protection Act, or the Superannuation Industry (Supervision) Act, or regulations made under those laws; b) an offence against any other Commonwealth law that is punishable by imprisonment
for a period of 12 months or more;
c) a matter representing danger to the public or the financial system; or
d) a matter prescribed by legislation; or
4) the disclosure is made to a legal practitioner for the purposes of obtaining legal advice or
representation in relation to whistleblowing of a personal work-related grievance.