Whistleblower Policy

Whistleblower Policy Public Interest Disclosures

Navantia Australia is committed to fostering an ethical, transparent culture. In pursuit of this, Navantia Australia values the disclosure of information about suspected wrongdoing in the performance of its duties so that it can be properly assessed and, if necessary, appropriately investigated. Navantia Australia will provide support to an employee or others who make disclosures about matters in the public interest. This policy aims to protect and support those who make disclosures of serious wrongdoing and misconduct and provide a reporting and investigation process.

Purpose

To encourage the reporting of serious wrongdoing and misconduct; and outline how Navantia Australia will deal with reports of serious wrongdoing and misconduct.

Scope

As a service provider under a Commonwealth contract; this policy applies to all Navantia Australia personnel including employees, contractors, consultants and directors. This also applies to relatives, dependants, spouses or dependants of a spouse of any of the above.

1. Policy statement

Navantia Australia is committed to fostering an ethical, transparent culture. In pursuit of this, Navantia Australia values the disclosure of information about suspected wrongdoing in the performance of its duties so that it can be properly assessed and, if necessary, appropriately investigated. Navantia Australia will provide support to an employee or others who make disclosures about matters in the public interest. This policy aims to protect and support those who make disclosures of serious wrongdoing and misconduct and provide a reporting and investigation process.

This Procedure demonstrates Navantia Australia’s commitment to ensuring that all of its business activities are birth ethical and complaint with legislation, internal policies and accepted community/Defence standards, and ensures that practical and effective procedures are implemented which comply with the requirements of the Public Interest Disclosure Act 2010 (PID Act) and section 1.1.1 of the Public Interest Disclosure Standard No. 1/2019. This policy has also been designed to adhere to the provisions of the Corporations Act 2001 and the Taxation Administration Act 1953 with respect to protections for persons who make a qualifying disclosure.

Navantia Australia takes seriously our responsibilities and obligation under s1317AI of the Corporations Act 2001 (Corporations Act) to have a Whistleblower policy that reflects the strengthened Whistleblower protection regime that started on 1 July 2019.

Whistleblowers play a key part of Navantia Australia’s ability to detect misconduct and identify, escalate and address issues.

This policy should be read in conjunction with the following Navantia Australia policies:

  1. Code of Conduct
  2. Gifts and Benefits
  3. Anti bribery, corruption and fraud.

2. Public Interest Disclosure (PID) Management Program

Navantia Australia will:

  • promote the public interest by facilitating public interest disclosures (PIDs) of wrongdoing
  • ensure that PIDs are properly assessed and, where appropriate, properly investigated and dealt with
  • ensure appropriate consideration is given to the interests of persons who are the subject of a PID
  • ensure protection from reprisal is afforded to persons making PIDs
  • ensure fair treatment of employees of Navantia Australia who are mentioned in disclosures that qualify for protection under all applicable legislation.

Navantia Australia’s Managing Director will implement procedures to ensure that:

  • anyone covered under the scope of this policy who makes a PID is given appropriate support
  • PIDs made to Navantia Australia are properly assessed and, where appropriate, properly investigated and dealt with
  • appropriate action is taken in relation to any wrongdoing which is the subject of a PID
  • a management program for PIDs made to Navantia Australia is developed and implemented
  • Navantia Australia personnel, including public officers, who make PIDs are offered protection from reprisal by Navantia Australia or other public officers of Navantia Australia.

Navantia Australia’s Managing Director has overall responsibility for ensuring that Navantia Australia develops, implements and maintains a PID Management Program. The Navantia Australia PID Management Program encompasses:

  • commitment to encouraging the internal reporting of wrongdoing
  • Navantia Australia executive endorsement of the value to Navantia Australia of PIDs and the proper management of PIDs
  • a communication strategy to raise awareness among employees about PIDs and Navantia Australia’s PID procedure
  • a training strategy to give employees access to training about how to make a PID, information on the support available to a discloser, and advice on how PIDs will be managed
  • specialist training and awareness about PIDs for Navantia Australia executive and other staff who may receive or manage PIDs, disclosers or workplace issues relating to PIDs
  • the appointment of a specialist officer/unit to be responsible for issues related to the management of PIDs
  • ensuring effective systems and procedures are in place so that issues and outcomes from PIDs inform improvements to service delivery, business processes and internal controls
  • regular review of the Public Interest Disclosure Procedure and evaluation of the effectiveness of the PID management program.

Navantia Australia’s Whistleblower Policy is an important tool for helping to identify wrongdoing that may not be uncovered unless there is a safe and secure means for disclosing wrongdoing.

Navantia Australia’s Managing Director has designated the following roles and responsibilities for managing PIDs within Navantia Australia:

Role: Responsibilities: Officer:
PID Coordinator (Public Officer)
  • principal contact for PID issues within Navantia Australia
  • document and manage implementation of PID management program
  • review and update PID procedure annually
  • maintain and update internal records of PIDs received
  • report data on PIDs to relevant authorities and oversight bodies
  • assess PIDs received
  • provide acknowledgment of receipt of PID to discloser
  • undertake risk assessments in consultation with disclosers and other relevant officers
  • liaise with other agencies about referral of PIDs
  • allocate Investigator and Support Officer to PID matter
  • providing support to all parties involved in a PID
  • provide regular statistical reporting and results on the PID management program to Navantia Australia Executive.
D-ARQAC

Office of the Managing Director

 

Contact details:

(P) 02 8273 4430

(M) 0447 280 856

 

By Email:

myazbeck@navantia.com.au

 

By Post:

DARQAC

Level 2, 56 Pitt Street

Sydney, NSW 2000

 

In Person:

As Above

Investigator
  • conduct investigation of information in PID in accordance with terms of reference
  • prepare report for delegated decision-maker.
An appropriate internal or external investigator will be appointed for each PID investigated depending upon the type of disclosure and other relevant considerations.
Delegated decision-maker
  • review investigation report and determine whether alleged wrongdoing is substantiated.
An appropriate decision-maker will be appointed for each PID investigated.

 

The above demonstrates adherence to our requirements under our PID Management Program and demonstrates compliance with Section 28 of the Public Interest Disclosure Act 2010 and Standard 1.3: Management Program for PIDs contained within Public Interest Disclosure Standard No. 1/2019.

Navantia Australia undertakes the following methods for making this policy available to all officers and employees (where applicable);

  1. Holding staff briefing sessions and/or smaller team meetings
  2. Posting the policy on the staff intranet or other communication platform
  3. Posting information on staff noticeboards
  4. Setting out the policy in the employee handbook
  5. Incorporating the policy in employee induction information packs and training for new starters.

3. Why make a PID?

Navantia Australia personnel who are prepared to speak up about misconduct, wastage of public funds, suspected unlawful activity or danger to health, safety or the environment can be the most important sources of information to identify and address problems in Navantia Australia administration. Navantia Australia supports the disclosure of information about wrongdoing because:

  • implementing systems for reporting and dealing with wrongdoing contributes to the integrity of Navantia Australia
  • the outcomes of PIDs can include improvements to systems that prevent fraud and other economic loss to Navantia Australia
  • Defence and the community’s trust in public administration is strengthened by having strong processes in place for reporting wrongdoing
  • Navantia Australia intends to demonstrate compliance with Sections 36 – 43 and 65 of the Public Interest Disclosure Act and 1.1.6 of Public Interest Disclosure Standard No. 1/2019.

When making a PID the discloser receives the protections provided under the PID Act, including:

  • confidentiality – the discloser’s name and other identifying information will be protected to the fullest extent possible
  • protection against reprisal – the discloser is protected from unfair treatment by Navantia Australia and employees of Navantia Australia as a result of making the PID
  • immunity from liability – the discloser cannot be prosecuted for disclosing the information, but is not exempt from action if they have engaged in wrongdoing
  • protection from defamation – the discloser has a defence against an accusation of defamation by any subject officer.

The above is explained in further detail in this Policy.

4. What is a PID?

Under the PID Act, any person can make a disclosure about a:

  • substantial and specific danger to the health or safety of a person with a disability
  • the commission of an offence, or contravention of a condition imposed under a provision of legislation mentioned in Schedule 2 of the PID Act, if the offence or contravention would be a substantial and specific danger to the environment
  • reprisal because of a belief that a person has made, or intends to make a disclosure.

In addition, Navantia Australia personnel officers can make a disclosure about the following matters:

  • corrupt conduct
  • maladministration that adversely affects a person’s interests in a substantial and specific way
  • a substantial misuse of public resources or risk of occurrence
  • a substantial and specific danger to public health or safety
  • substantial and specific danger to the environment.
  • a discloser can have either a ‘reasonable belief’ that wrongdoing has occurred, or provide evidence which tends to show the wrongdoing has occurred
  • perverting the cause of justice
  • contravening a Commonwealth, State or Territory Law
  • fabrication, falsification, plagiarism or deception or other misconduct in relation to analysis or advice
  • acting in behaviours outside of Navantia Australia’s Code of Conduct.

A disclosure amounts to a PID and is covered by the PID Act even if the:

  • discloser reports the information as part of their duties – such as an auditor reporting a fraud or a WHSE officer reporting a safety breach
  • disclosure is made anonymously – the discloser is not required to give their name or any identifying information
  • discloser has not identified the material as a PID – it is up to Navantia Australia to assess information received and decide if it is a PID
  • disclosure is unsubstantiated following investigation – the discloser is protected when the information they provide is assessed as a PID, whether or not it is subsequently investigated or found to be substantiated.

5.  Disclosable Matters

Disclosable matters involve information that the discloser has reasonable grounds to suspect concerns misconduct, or an improper state of affairs or circumstances, in relation to Navantia Australia.

The term ‘misconduct’ is defined in this policy to include ‘fraud, negligence, default, breach of trust and breach of duty’. The phrase ‘improper state of affairs or circumstances’ is not defined and is intentionally broad. For example, ‘misconduct or an improper state of affairs or circumstances’ may not involve unlawful conduct in relation to Navantia Australia or a related body corporate of Navantia Australia, but may indicate a systemic issue that the relevant regulator should know about to properly perform its functions. It may also relate to business behaviour and practices that may cause consumer harm.

The term ‘reasonable grounds to suspect’ is based on the objective reasonableness of the reasons for the discloser’s suspicion. It ensures that a discloser’s motive for making a disclosure, or their personal opinion of the person(s) involved, does not prevent them from qualifying for protection. In practice, a mere allegation with no supporting information is not likely to be considered as having ‘reasonable grounds to suspect’. However, a discloser does not need to prove their allegations.

Navantia Australia’s PID Policy covers disclosable matters such as:

  1. illegal conduct, such as theft, dealing in, or use of illicit drugs, violence or threatened violence, and criminal damage against property
  2. fraud, money laundering or misappropriation of funds
  3. offering or accepting a bribe
  4. financial irregularities
  5. failure to comply with, or breach of, legal or regulatory requirements
  6. engaging in, or threatening to engage in, detrimental conduct against a person who has made a disclosure or is believed or suspected to have made, or be planning to make, a disclosure.

Disclosable matters include conduct that may not involve a contravention of a particular law however information that indicates a significant risk to public safety or the stability of, or confidence in, the financial system is also a disclosable matter, even if it does not involve a breach of a particular law.

6. Personal and Work-Related Grievances?

Disclosures that relate solely to personal work-related grievances, and that do not relate to detriment or threat of detriment to the discloser, do not qualify for protection under this policy.

Personal work-related grievances are those that relate to the discloser’s current or former employment and have, or tend to have, implications for the discloser personally, but do not:

  1. have any other significant implications for Navantia Australia (or another entity)
  2. relate to any conduct, or alleged conduct, about a disclosable matter.

Personal and Work-related grievances include:

  1. an interpersonal conflict between the discloser and another employee
  2. a decision that does not involve a breach of workplace laws
  3. a decision about the engagement, transfer or promotion of the discloser
  4. a decision about the terms and conditions of engagement of the discloser
  5. a decision to suspend or terminate the engagement of the discloser, or otherwise to discipline the discloser.

However, this policy recognises that a personal work-related grievance may still qualify for protection if:

1. It includes information about misconduct, or information about misconduct includes or is accompanied by a personal work-related grievance

2. Navantia Australia has breached employment or other laws punishable by imprisonment for a period of 12 months or more, engaged in conduct that represents a danger to the public, or the disclosure relates to information that suggests misconduct beyond the discloser’s personal circumstances

3. The discloser suffers from, or is threatened with, detriment for making a disclosure

4. The discloser seeks legal advice or legal representation about the operation of the Whistleblower protections under applicable legislation.

7.  Who can a PID be disclosed to? 

A PID must be made to the ‘proper authority’ to receive disclosures of the type being made.

Disclosers are encouraged to make a disclosure to an appropriate officer of Navantia Australia first. If the matter is not resolved, or the discloser is concerned about confidentiality, the disclosure may be made to another appropriate agency.

Any person or Navantia Australia personnel (including employees) can make a disclosure to:

  • Navantia Australia DARQAC (contact details listed in Section 2 PID Management Program)
  • any person in a supervisory or management position
  • the Human Resources unit
  • Navantia Australia Managing Director.

A disclosure can also be made to a journalist if the following conditions have been met:

  • a valid PID was initially made to a proper authority, and
  • the proper authority:
    • decided not to investigate or deal with the disclosure
    • investigated the disclosure but did not recommend taking any action
    • failed to notify the discloser within six months of making the disclosure whether or not the disclosure was to be investigated or otherwise dealt with.

A person who makes a disclosure to a journalist in these circumstances is protected under the PID Act. However, disclosers should be aware that journalists are not bound under the confidentiality provisions of section 65 of the PID Act.

8. How to make a PID    

A discloser can make a PID in any way, including anonymously, either verbally or in writing. To assist in the assessment, and any subsequent investigation of a PID, disclosers are requested to:

  • provide contact details (this could be an email address that is created for the purpose of making the disclosure or a telephone number)
  • provide as much information as possible about the suspected wrongdoing, including:
    • who was involved
    • what happened
    • when it happened
    • where it happened
    • whether there were any witnesses, and if so who they are
    • any evidence that supports the PID, and where the evidence is located
    • any further information that could help investigate the PID
  • provide this information in writing.

This is to establish Navantia Australia’s compliance with Sections 17 and 65, of the Public Interest Disclosure Act 2010 and Section 1.1.4 of Public Interest Disclosure Standard No. 1/2019.

Public Interest Disclosures can also be made to the PID@Navantia.com.au inbox which is accessible only by the PID Officer, if the discloser is not comfortable reporting to their manager, supervisor or Navantia Australia contact. This option will be available to all Navantia Australia personnel in all Navantia Australia geographies and jurisdictions.

9. Deciding on whether a matter is a PID      

If there is any doubt as to whether a matter is a PID, further information may be obtained to inform the decision. If doubt still remains, the matter will be considered and managed as a PID.

Mere disagreements over policy do not meet the threshold for a PID under the PID Act.

It is an offence under the PID Act to intentionally give false or misleading information intending it be acted on as a PID. Employees may be subject to disciplinary action for intentionally giving false or misleading information in a PID, or during an investigation into a PID.

Where a discloser states they are making a PID, but it is assessed that the matter is not a PID, Navantia Australia will advise the discloser:

  • that their information has been received but was not assessed as a PID
  • the reasons for the decision
  • the review rights available if the discloser is dissatisfied with the decision and how to request review
  • any action Navantia Australia proposes to take in relation to the matter
  • any other options the discloser has in relation to the matter.

10. Assessing a PID  

The disclosure will be assessed in accordance with the PID Act, the PID standards, Navantia Australia’s Public Interest Disclosure Procedure and any other relevant procedure(s).

Once the matter has been assessed as a PID, Navantia Australia will advise the discloser:

  • that their information has been received and assessed as a PID
  • the action to be taken by Navantia Australia in relation to the disclosure, which could include referring the matter to an external agency, or investigating the likely timeframe involved
  • the name and contact details of the Navantia Australia support officer they can contact for updates or advice of the discloser’s obligations regarding confidentiality
  • the protections the discloser has under the PID Act
  • the commitment of Navantia Australia to keep appropriate records and maintain confidentiality, except where permitted under the PID Act
  • how updates regarding intended actions and outcomes will be provided to the discloser
  • contact details for Navantia Australia’s Employee Assistance Program.

If the PID has been made anonymously and the discloser has not provided any contact details, Navantia Australia will not be able to acknowledge the PID or provide any updates.

11. Referring a PID  

If Navantia Australia decides there is another proper authority that is better able to deal with the PID, the PID may be referred to that agency. This may be because:

  1. the PID concerns wrongdoing by that agency or an employee of that agency
  2. that agency has the power to investigate or remedy the matter.

Before referring the PID to another agency, Navantia Australia will conduct a risk assessment, and will not proceed with the referral if there is an unacceptable risk of reprisal.

It may also be necessary to refer the PID to another agency because of a legislative obligation, for example, to refer a matter to the Commonwealth Ombudsman, Department of Defence, Crimes Act 1900 etc.

The confidentiality obligations of the PID Act permit appropriate officers of Navantia Australia to communicate with another agency about the referral of a PID. Officers will exercise discretion in their contacts with any other agency.

The discloser will be advised of the action taken by Navantia Australia.

It is important to note that the above demonstrate Navantia Australia’s compliance with Sections 15, 31, 32 and 65 of the Public Interest Disclosure Act 2010, Section 1.1.5 of Public Interest Disclosure Standard No. 1/2019 and Section 2.1.5 of Public Interest Disclosure Standard No. 2/2019.

12. Risk assessment and protection from reprisal  

Disclosers should not suffer any form of detriment as a result of making a PID. Upon receiving a PID, Navantia Australia commits to conduct a risk assessment to assess the likelihood of the discloser (or witnesses or affected third parties) suffering reprisal action as a result of having made the disclosure. This assessment will take into account the actual and reasonably perceived risk of the discloser (or witnesses or affected third parties) suffering detriment, and will include consultation with the discloser.

A risk assessment will be undertaken if the discloser is anonymous on the basis of information available in the PID. The risk assessment will also take into account the risk to persons who may be suspected of making the PID.

Consistent with the assessed level of risk, Navantia Australia will develop and implement a risk management plan and arrange any reasonably necessary support or protection for the discloser (or witnesses or affected third parties).

Navantia Australia will regularly reassess the risk of reprisal while the PID is being managed, in consultation with the discloser, and review the risk management plan if required.

In the event of reprisal action being alleged or suspected, Navantia Australia will:

  1. attend to the safety of the discloser (or witnesses or affected third parties) as a matter of priority
  2. review its risk assessment, risk management plan and any protective measures needed to mitigate any further risk of reprisal
  3. manage any allegation of a reprisal as a PID in its own right.

Specifically, Navantia Australia will take the following steps to assessing and controlling the risk to detriment.

  1. Risk identification: Assessing whether anyone may have a motive to cause detriment.

Information could be gathered from a discloser about:

    • the risk of their identity becoming known
    • who they fear might cause detriment to them
    • whether there are any existing conflicts or problems in the work place.

2. Whether there have already been threats to cause detriment. Risk analysis and evaluation: Analysing and evaluating the likelihood of each risk and evaluating the severity of the consequences.

3. Risk control: Developing and implementing strategies to prevent or contain the risks.

    Specifically, for anonymous disclosures Navantia Australia will assess whether the discloser’s identity can be readily identified or may become apparent during an investigation.

4. Risk monitoring: Monitoring and reassessing the risk of detriment where required.

    Navantia Australia will monitor with vigilance as the risk of detriment may increase or change as an investigation progresses, and even after an investigation is finalised.

13. Declining to take action on a PID    

Under the PID Act (in compliance with Section 30), Navantia Australia may decide not to investigate or deal with a PID in various circumstances, including:

  • the information disclosed has already been investigated or dealt with by another process
  • the information disclosed should be dealt with by another process
  • the age of the information makes it impractical to investigate
  • the information disclosed is too trivial and dealing with it would substantially and unreasonably divert Navantia Australia from the performance of its functions
  • another agency with jurisdiction to investigate the information has informed Navantia Australia that an investigation is not warranted.

If a decision is made not to investigate or deal with a PID, Navantia Australia will give the discloser written reasons for that decision.

If the discloser is dissatisfied with the decision or the process by which the PID was managed, they can request a review by writing to Managing Director of Navantia Australia within 14 days of receiving the written reasons for decision. This will ensure conformance to Section 30 of the PID Act.

14. Communication with disclosers 

Under the PID Act, Navantia Australia must give reasonable information to a discloser.

Navantia Australia will acknowledge receipt of the PID in writing as soon as practicable. The discloser will be provided with information that meets the requirements of the PID Act and the standards issued by relevant governance and compliance obligations, including:

  • the action that will be taken in response to the PID
  • the protections under the PID Act
  • confidentiality obligations of the discloser and Navantia Australia
  • support arrangements.

Navantia Australia will maintain contact with the discloser and provide regular updates during the management of the PID. In accordance with the PID Act, after finalising action in response to the PID, the Navantia Australia will advise the discloser in writing of the action taken and the results of the action.

Navantia Australia undertakes to ensure that the discloser will be provided with regular updates, if the discloser can be contacted (including through anonymous channels). The frequency and timeframe may vary depending on the nature of the disclosure however Navantia Australia respects that keeping a discloser informed and updated during various stages of the investigation will provide a discloser with assurance that Navantia Australia is taking their disclosure seriously. Navantia Australia will ensure that anonymity is not compromised when providing regular updates.

This policy reiterates the following in order to note the importance of the following measures and/or mechanisms available for ensuring fair treatment of individuals mentioned in a disclosure (where applicable):

  1. disclosures will be handled confidentially, when it is practical and appropriate in the circumstances
  2. each disclosure will be assessed and may be the subject of an investigation
  3. the objective of an investigation is to determine whether there is enough evidence to substantiate or refute the matters reported
  4. when an investigation needs to be undertaken, the process will be objective, fair and independent
  5. an employee who is the subject of a disclosure will be advised about the subject matter of the disclosure as and when required by principles of natural justice and procedural fairness and prior to any actions being taken—for example, if the disclosure will be the subject of an investigation
  6. an employee who is the subject of a disclosure may contact Navantia Australia’s support services (e.g. counselling, EAP etc).

15. Confidentiality  

While Navantia Australia will make every attempt to protect confidentiality, a discloser’s identity may need to be disclosed to:

  • provide natural justice to subject officers
  • provide natural justice to Navantia Australia personnel
  • respond to a court order, legal directive or court proceedings.

Navantia Australia will ensure that communication with all parties involved will be arranged discreetly to avoid identifying the discloser wherever possible.

Disclosers should be aware that while Navantia Australia will make every attempt to keep their details confidential, it cannot guarantee that others will not try to deduce their identity.

16. Support for Disclosers      

Navantia Australia recognises that providing appropriate support to a discloser is an important feature of effective PID management. Navantia Australia commits to providing such support.

An assessment will be undertaken to identify the support needs of the discloser. Where appropriate, a PID Support Officer will be assigned to the discloser. The PID Support Officer will assist the discloser to access information about PIDs, protections available under the PID Act and the PID management process. The PID Support Officer will proactively contact the discloser to offer support.

Information and support will be provided to the discloser until the matter is finalised.

Making a PID does not prevent reasonable management action. That means that the discloser will be continue to be managed in accordance with normal, fair and reasonable management practices during and after the handling of the PID.

Australian legislation makes it illegal (through a criminal offence and civil penalty) for someone to cause or threaten detriment to Whistleblowers because they believe or suspect that a PID or disclosure has been made, may have been made, or could make a disclosure.

The criminal offence and civil penalty apply even if a complainant has not made a disclosure or report, but the offender causes or threatens detriment to the complainant because they believe or suspect a report may, or have been already made.

17. Legislated Protections Available for Disclosers

In addition to the specific protection disclosed in this document, Navantia Australia commits to ensure that protections under the Corporations Act are available to disclosers who qualify for protection as a Whistleblower.

This policy encourages disclosers to seek independent legal advice on further protection available for Whistleblowers at any time.

Protections available to Whistleblowers are:

1. Identity Protection

It is illegal for a person to identify a discloser, or disclose information that is likely to lead to the identification of the discloser, outside the exceptions listed below. A discloser can lodge a complaint with the Managing Director or PID Coordinator about a breach of confidentiality. A discloser can lodge a complaint with a regulator, such as ASIC, APRA or the ATO, for investigation into breaches of confidentiality.

A person cannot disclose the identity of a discloser or information that is likely to lead to the identification of the discloser (which they have obtained directly or indirectly because the discloser made a disclosure that qualifies for protection).

Exceptions to the above are:

  1. The exception if a person discloses the identity of the discloser:

(a) to ASIC, APRA, or a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979)

(b) to a legal practitioner (for the purposes of obtaining legal advice or legal representation about the Whistleblower provisions in the Corporations Act)

(c) to a person or body prescribed by regulations

(d) with the consent of the discloser.

2.  A person can disclose the information contained in a disclosure with or without the discloser’s consent if:

(a) the information does not include the discloser’s identity

(b) Navantia Australia has taken all reasonable steps to reduce the risk that the discloser will be identified from the information

(c) it is reasonably necessary for investigating the issues raised in the disclosure.

This Policy sets out specific ways in which Navantia Australia will reduce the risk that the discloser will be identified from the information contained in a discloser:

  1. All personal information or reference to the discloser witnessing an event will be redacted:
    • the discloser will be referred to in a gender-neutral context
    • where possible, the discloser will be contacted to help identify certain aspects of their disclosure that could inadvertently identify them
    • disclosures will be handled and investigated by qualified staff.

This Policy sets out specific ways in which Navantia Australia will reduce the risk that the discloser will be identified from the information contained in a discloser by additionally utilising secure record-keeping and information-sharing processes such as:

  1. all paper and electronic documents and other materials relating to disclosures will be stored securely
  2. access to all information relating to a disclosure will be limited to those directly involved in managing and investigating the disclosure
  3. only a restricted number of people who are directly involved in handling and investigating a disclosure will be made aware of a discloser’s identity (subject to the discloser’s consent) or information that is likely to lead to the identification of the discloser
  4. communications and documents relating to the investigation of a disclosure will not to be sent to an email address or to a printer that can be accessed by other staff
  5. each person who is involved in handling and investigating a disclosure will be reminded about the confidentiality requirements, including that an unauthorised disclosure of a discloser’s identity may be a criminal offence.

It is important to note that in practice, people may be able to guess the discloser’s identity if the discloser has previously mentioned to other people that they are considering making a disclosure; the discloser is one of a very small number of people with access to the information; or the disclosure relates to information that a discloser has previously been told privately and in confidence.

2. Protection of Detrimental Acts or Omissions

A person may be causing detriment if they:

a) dismiss you from your employment

b) injure you in your employment

c) alter your position or duties to your disadvantage

d) discriminate between you and other employees of the same employer

e) harass or intimidate you

f) harm or injure you, including causing you psychological harm

g) damage your property

h) damage your reputation

i) damage your business or financial position

j) cause you any other damage.

The offence and penalty require that the detriment be the result of an actual or suspected disclosure.

This Policy sets out specific ways in which Navantia Australia will implement following measures and mechanisms for protecting disclosers from detrimental acts or omissions (where applicable):

a) Assessing the risk of detriment against a discloser and other persons (e.g. other staff who might be suspected to have made a disclosure), will commence as soon as possible after receiving a disclosure

b) Support services (including counselling or other professional or legal services) will be offered that are available to disclosers

c) Strategies to help a discloser minimise and manage stress, time or performance impacts, or other challenges resulting from the disclosure or its investigation will be offered

d) Taking immediate actions for protecting a discloser from risk of detriment. Actions Navantia Australia may take include:

a. allowing the discloser to perform their duties from another location

b. reassign the discloser to another role at the same level

c. make other modifications to the discloser’s workplace or the way they perform their work duties

d. or reassign or relocate other staff involved in the disclosable matter.

e) Training and regular engagement aimed at ensuring Navantia Australia management remain aware of their responsibilities to maintain the confidentiality of a disclosure, address the risks of isolation or harassment, manage conflicts, and ensure fairness when managing the performance of, or taking other management action relating to, a discloser

f) Reminder and automatic notification of procedures on how a discloser can lodge a complaint if they have suffered detriment, and the actions Navantia Australia may take in response to such complaints.

g) Providing for alternative contact details so the complaint can be investigated as a separate matter by an officer who is not involved in dealing with disclosures and ensure the investigation findings are provided to Navantia Australia management or relevant committee and

h) interventions for protecting a discloser if detriment has already occurred— for example Navantia Australia may elect to:

a. investigate and address the detrimental conduct, such as by taking disciplinary action

b. allow the discloser to take extended leave

c. develop a career development plan for the discloser that includes new training and career opportunities

d. or offer compensation or other remedies.

Navantia Australia will investigate allegations that a person caused or threatened detriment to Whistleblowers and will take administrative action that is reasonable for the purpose of protecting a discloser from detriment.

3. Compensation and other Remedies

This policy informs that that a Whistleblower (or any other employee or person) can seek compensation and other remedies through the courts if:

a) they suffer loss, damage or injury because of a disclosure; and

b) Navantia Australia failed to take reasonable precautions and exercise due diligence to prevent the detrimental conduct.

As a Whistleblower you can also pursue other remedies, such as:

  • Navantia Australia reinstating you to your original position or a comparable position
  • the Court issuing an injunction to prevent or stop detrimental conduct
  • the person, company or organisation that caused you detriment or threatened you with detriment apologising to you.

It is important to note that it is your responsibility to bring any such action for compensation. Navantia Australia strongly encourages you, if you believe you are a Whistleblower, to seek independent legal advice about what remedies may be available to you if you suffer loss, damage, or injury.

If you are unsuccessful in your claim for compensation for detriment against a person, company or organisation, you are protected from having to pay their legal costs (unless a court finds your claim to be vexatious or you acted unreasonably).

4. Civil, Criminal and Administrative liability protection

Australian Legislation protects a Whistleblower against certain legal actions related to making the Whistleblower disclosure, including:

  • criminal prosecution (and the disclosure cannot be used against the Whistleblower in a prosecution, unless the disclosure is false)
  • civil litigation (such as for breach of an employment contract, duty of confidentiality, or other contractual obligation), or
  • administrative action (including disciplinary action).

If you are the subject of an action for making a Whistleblower disclosure, you may rely on this protection in your defence.

This protection does not grant immunity to you for any misconduct that you were involved in that is revealed in the disclosure.

18. Investigating a PID  

Navantia Australia commits to ensure that all PIDs will be properly assessed and where relevant or required, properly investigated and dealt with. If a decision is made to investigate a PID, this will be done with consideration for the:

  • principles of natural justice
  • obligation under the PID Act to protect confidential information
  • obligation under the PID Act to protect officers from reprisal
  • interests of subject officers.

If as a result of investigation, the information about wrongdoing provided in the PID is substantiated, appropriate action will be taken.

If it is assessed that there is a need to investigate a disclosure, Navantia Australia’s Managing Director and/or PID Coordinator will need to determine:

a) the nature and scope of the investigation

b) the person(s) within and/or outside Navantia Australia that should lead the investigation

c) the nature of any technical, financial or legal advice that may be required to support the investigation

d) the timeframe for the investigation.

Where the investigation does not substantiate wrongdoing, Navantia Australia will review systems, policies and procedures to identify whether there are improvements that can be made and consider if staff training is required.

Without the discloser’s consent, Navantia Australia cannot disclose information that is likely to lead to the identification of the discloser as part of its investigation process unless:

a) the information does not include the discloser’s identity

b) Navantia Australia removes information relating to the discloser’s identity or other information that is likely to lead to the identification of the discloser (e.g. the discloser’s name, position title and other identifying details)

c) it is reasonably necessary for investigating the issues raised in the disclosure.

Navantia Australia may not be able to undertake an investigation if it is not able to contact the discloser in such instances where a disclosure is made anonymously and the discloser has refused to provide, or has not provided, a means of contacting them.

In practice, Navantia Australia may:

a) investigate a disclosure by asking the discloser for consent to a limited disclosure (e.g. disclosure to Navantia Australia’s Whistleblower PID Coordinator or equivalent

b) investigate a disclosure by conducting a broad review on the subject matter or the work area disclosed

c) investigate an anonymous disclosure, even if it cannot get in contact with the discloser, if the discloser has provided sufficient information to Navantia Australia and Navantia Australia removes information that is likely to lead to the identification of the discloser.

Navantia Australia’s Whistleblower policy undertakes to:

a) ensure the confidentiality of our disclosure handling and investigation process

b) ensure appropriate records and documentation for each step in the process are maintained

c) ensure transparency in handling and investigating disclosures, including handling and investigating disclosures in a reasonable timeframe relevant to the disclosure.

19. Rights of Subject Officers 

Navantia Australia acknowledges that for officers who are the subject of a PID the experience may be stressful. Navantia Australia will protect their rights by:

  • assuring them that the PID will be dealt with impartially, fairly and reasonably in accordance with the principles of natural justice
  • confirming that the PID is an allegation only until information or evidence obtained through an investigation substantiates the allegation
  • providing them with information about their rights and the progress and outcome of any investigation
  • referring them to the Employee Assistance Program for support.

Information and support will be provided to a subject officer until the matter is finalised.

20. Record Keeping

In accordance with its obligations under the PID Act and relevant legislation in the jurisdiction we operate, Navantia Australia will ensure that:

  • accurate data is collected about the receipt and management of PIDs
  • anonymised data is reported to the relevant authorities and oversight agencies.

Records about disclosures, investigations, and related decisions will be kept secure and accessible only to appropriately authorised people involved in the management of the PID.

21. Definitions

Term Definition
Administrative action

 

(a) means any action about a matter of administration, including, for example:

(i)  a decision and an act; and

(ii) a failure to make a decision or do an act, including a failure to   provide a written statement of reasons for a decision; and

(iii) the formulation of a proposal or intention; and

(iv) the making of a recommendation, including a recommendation made to a Minister; and

(v) an action taken because of a recommendation made to a Minister.

Confidential information (a) includes:

(i) information about the identity, occupation, residential or work address or whereabouts of a person:

(A) who makes a public interest disclosure

(B) against whom a public interest disclosure has been made

(ii) information disclosed by a public interest disclosure

(iii) information about an individual’s personal affairs

(iv) information that, if disclosed, may cause detriment to a person.

(b) does not include information publicly disclosed in a public interest disclosure made to a court, tribunal or other entity that may receive evidence under oath, unless further disclosure of the information is prohibited by law.

Corrupt conduct

 

(1) Corrupt conduct means conduct of a person, regardless of whether the person holds or held an appointment, that:

(a) adversely affects, or could adversely affect, directly or indirectly, the performance of functions or the exercise of powers of:

(i) a unit of public administration

(ii) a person holding an appointment

(b) results, or could result, directly or indirectly, in the performance of functions or the exercise of powers mentioned in paragraph (a) in a way that:

(i) is not honest or is not impartial

(ii) involves a breach of the trust placed in a person holding an appointment, either knowingly or recklessly

(iii) involves a misuse of information or material acquired in or in connection with the performance of functions or the exercise of powers of a person holding an appointment

(c) would, if proved, be:

(i) a criminal offence

(ii) a disciplinary breach providing reasonable grounds for terminating the person’s services, if the person is or were the holder of an appointment.

(2) Corrupt conduct also means conduct of a person, regardless of whether the person holds or held an appointment, that:

(a) impairs, or could impair, public confidence in public administration; and

(b) involves, or could involve, any of the following;

(i) collusive tendering

(ii) fraud relating to an application for a licence, permit or other   authority under an Act with a purpose or object of any of the following (however described)

(A) protecting health or safety of persons

 (B) protecting the environment

(C) protecting or managing the use of the State’s natural, cultural, mining or energy resources.

(iii) dishonestly obtaining, or helping someone to dishonestly obtain, a benefit from the payment or application of public funds or thedisposition of State assets

(iv) evading a State tax, levy or duty or otherwise fraudulently causing a loss of State revenue

 (v) fraudulently obtaining or retaining an appointment; and

(c) would, if proved, be:

(i) a criminal offence; or

(ii) a disciplinary breach providing reasonable grounds for terminating the person’s services, if the person is or were the holder of an appointment.

Detriment

 

Includes:

(a) personal injury or prejudice to safety

(b) property damage or loss

(c) intimidation or harassment

(d) adverse discrimination, disadvantage or adverse treatment about career, profession, employment, trade or business

(e) financial loss

(f) damage to reputation, including, for example, personal, professional or business reputation.

Disability As defined in section 11 of the Disability Services Act 2006, for the purposes of this procedure:

(1)        A  disability is a person’s condition that:

(a) is attributable to:

(i) an intellectual, psychiatric, cognitive, neurological, sensory or physical impairment; or

(ii) a combination of impairments mentioned in subparagraph (i) and

            (b) results in:

(i) a substantial reduction of the person’s capacity for communication, social interaction, learning, mobility or self-care or management; and

          (ii) the person needing support.

(2) For subsection (1), the impairment may result from an acquired brain injury.

(3) The disability must be permanent or likely to be permanent.

(4) The disability may be, but need not be, of a chronic episodic nature.

Discloser

 

A person who makes a disclosure in accordance with the Public Interest Disclosure Act 2010.
Employee

 

of an entity, includes a person engaged by Navantia Australia under a contract of service.
Investigation For the purposes of this procedure, investigation includes any enquiry undertaken to establish whether the information provided in a PID can be substantiated, including a review or audit.
Journalist

 

a person engaged in the occupation of writing or editing material intended for publication in the print or electronic news media.
Maladministration

 

As defined in schedule 4 of the Public Interest Disclosure Act 2010, maladministration is administrative action that:

 (a) was taken contrary to law

(b) was unreasonable, unjust, oppressive, or improperly discriminatory

(c) was in accordance with a rule of law or a provision of an Act or a practice that is or may be unreasonable, unjust, oppressive, or improperly discriminatory in the particular circumstances

          (d) was taken

(i) for an improper purpose

(ii) on irrelevant grounds

(iii) having regard to irrelevant considerations.

(e) was an action for which reasons should have been given, but were not given

          (f) was based wholly or partly on a mistake of law or fact; or

(g) was wrong.

Misconduct Misconduct for the purposes of this policy is defined as ‘fraud, negligence, default, breach of trust and breach of duty’. The phrase ‘improper state of affairs or circumstances’ is not defined and is intentionally broad. For example, ‘misconduct or an improper state of affairs or circumstances’ may not involve unlawful conduct in relation to Navantia Australia or a related body corporate of Navantia Australia but may indicate a systemic issue that the relevant regulator should know about to properly perform its functions. It may also relate to business behaviour and practices that may cause consumer harm.
Natural justice Natural justice, also referred to as ‘procedural fairness’ applies to any decision that can affect the rights, interests or expectations of individuals in a direct or immediate way. Natural justice is at law a safeguard applying to an individual whose rights or interests are being affected.

The rules of natural justice, which have been developed to ensure that decision-making is fair and reasonable, are:

  • avoid bias
  • give a fair hearing
  • act only on the basis of logically probative evidence.
Organisational support For the purposes of this procedure, organisational support means actions such as, but not limited to:

  • providing moral and emotional support
  • advising disclosers about agency resources available to handle any concerns they have as a result of making their disclosure
  • appointing a mentor, confidante or other support officer to assist the discloser through the process
  • referring the discloser to the agency’s Employee Assistance Program or arranging for other professional counselling
  • generating support for the discloser in their work unit where appropriate
  • ensuring that any suspicions of victimisation or harassment are dealt with
  • maintaining contact with the discloser
  • negotiating with the discloser and their support officer a formal end to their involvement with the support program when it is agreed that they no longer need assistance.
Proper authority

 

A person or organisation that is authorised under the Public Interest Disclosure Act 2010 to receive disclosures.
Public officer

 

A public officer, of a public sector entity, is an employee, member or officer of Navantia Australia.
Reasonable belief A view which is objectively fair or sensible.
Reasonable management action

 

Action taken by a manager in relation to an employee, includes any of the following taken by the manager:

(a) a reasonable appraisal of the employee’s work performance

(b) a reasonable requirement that the employee undertake counselling

(c) a reasonable suspension of the employee from the employment workplace

(d) a reasonable disciplinary action

(e) a reasonable action to transfer or deploy the employee

(f) a reasonable action to end the employee’s employment by way of redundancy or retrenchment

(g) a reasonable action in relation to an action mentioned in paragraphs (a) to (f)

(h) a reasonable action in relation to the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in relation to the employee’s employment.

Reprisal The term ‘reprisal’ is defined under the Public Interest Disclosure Act 2010 as causing, attempting to cause or conspiring to cause detriment to another person in the belief that they or someone else:

  • has made or intends to make a disclosure; or
  • has been or intends to be involved in a proceeding under the disclosure Act against any person.

Reprisal under the Public Interest Disclosure Act 2010 is a criminal offence and investigations may be undertaken by relevant authorities.

Subject officer An officer who is the subject of allegations of wrongdoing made in a disclosure.
Substantial and specific Substantial means ‘of a significant or considerable degree’. It must be more than trivial or minimal and have some weight or importance.

Specific means “precise or particular”. This refers to conduct or detriment that is able to be identified or particularised as opposed to broad or general concerns or criticisms.