Purpose and scope of this Annex

1.1 This Annex supplements DLA Piper’s International Whistleblowing Policy (The International Policy) and applies only to a narrow range of disclosures that fall within the scope of Australian legislation, specifically the Corporations Act 2001 (Corporation Act) and the Taxation Administration Act 1953 (Tax Act). It is intended for disclosures made by or relating to DLA Australia Services Pty Ltd or DLA Piper Australia (the Partnership), where the matter qualifies as a Protected Disclosure un/der Australian law, details of which can be found in paragraph 3.

1.2 Disclosures that do not meet these criteria should be made under the International Policy, click here.

1.3 In Australia, the firm operates as a partnership known as DLA Piper Australia (the Partnership). The Partnership employs all fee earning staff or lawyers with a practising certificate. The Partnership also acquires the services of employees within DLA Piper Australia Services Pty Ltd (ACN 087 440 033) as trustee for the Australia Services Trust (DLA Australia Services) to provide business services to the firm in Australia (i.e. finance).

1.4 All reports or disclosures will be subject to the International Policy and will be afforded the protections available under that policy. However, some Australia-specific reports may also be afforded additional protections under the Corporations Act or the Tax Act, in which case, the provisions of this Annex will apply.

1.5  If you have any questions about how the International Policy or this Annex operates and the circumstances in which the additional special protections under this Annex will apply, please contact the Whistleblower Investigation Officer (whose contact details can be found in Part 1 of Schedule 1 to this annex). The Whistleblower Investigation Officer can provide you with additional information regarding the process for making a disclosure and the protections that might be available to you prior to you making a formal disclosure.

1.6 This Annex is important to DLA Australia Services’ and the Partnership’s risk management and corporate governance framework. It is also intended as a practical tool to help DLA Australia Services and the Partnership to:

• identify, address and deter wrongdoing; and
• ensure that individuals that report wrongdoing can do so safely, securely and with confidence that they will be protected and supported.

2 Qualification for protection

2.1 As already mentioned, a person who raises a concern under this Annex may qualify for special protections available under the Corporations Act or Tax Act (a Protected Disclosure).

2.2 A Protected Disclosure will arise:

• Firstly, where all the following elements are present:
  • the information relates to information classified as a Disclosable Matter (see paragraph 3)
  • the Disclosable Matter is reported by a person classified as an Eligible Whistleblower (see paragraph 5)and
  • the Disclosable Matter is reported to:
    • a person classified as an Eligible Recipient (see paragraph 5.3) or
    • the relevant regulatory authority, which will be either:
      • the Australian Securities Investments Commission (ASIC) or the Australian Prudential Regulation Authority (APRA) for Disclosable Matters under the Corporations Act; or
      •   the Commissioner of Taxation for Disclosable Matters under the Tax Act;
• Secondly, where a disclosure is made to the Commissioner of Taxation, because the Eligible Whistleblower considers that the information may assist the Commissioner to perform their functions or duties under taxation law in relation DLA Australia Services, the Partnership or an associate of DLA Australia Services or the Partnership.

2.3 You are entitled to seek advice or representation from a legal practitioner who is external to DLA Australia Services or the Partnership in relation to the operation of the whistleblowing provisions under the Corporation Act and/or Tax Act. In these circumstances, any communications with your legal practitioner will be confidential and will be protected. If, after speaking with your legal advisor, you elect to make a disclosure under this Annex, that disclosure will only qualify as a Protected Disclosure if it satisfies the criteria outlined in paragraph 2.2 above.

3 Disclosable matters

Under the Corporations Act:

• A Disclosable Matter is a report that relates to misconduct, or an improper state of affairs and circumstances, in relation to DLA Australia Services or a related body corporate, which the Eligible Whistleblower has reasonable grounds to suspect has occurred or is occurring or will occur.
• This can include, but is not limited to, information that indicates that an officer or employee of DLA Australia Services (or one of its related bodies corporate) has engaged, is engaging or will engage in conduct that:
  • is an offence, or 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;
    • the Superannuation Industry (Supervision) Act 1993; or
    • an instrument made under those laws;
      • represents a danger to the public or the financial system; or
      • is prescribed by regulations for the purposes of the Corporations Act.
      • constitutes an offence against any other Commonwealth law that incurs a punishment of up to 12 months or more;

3.2 “Personal work-related grievance” disclosures are typically not Disclosable Matters. Under the Corporations Act, a disclosure is not a Disclosable Matter if the information disclosed:

• concerns a grievance about any matter in relation to the discloser’s employment (or former employment) that has personal implications for the discloser;
• does not have significant implications for DLA Australia Services that do not relate to the discloser; and
• does not concern conduct described in paragraph 3.1

3.3 Examples of personal work-related grievances might include:

• a conflict between two employees;
• a decision to transfer or demote an employee;
• a decision regarding an employee’s terms and conditions of employment; or
• a decision to suspend or terminate an employee or contractor.

3.4 If you raise a concern about a personal work-related grievance, although you may not qualify for the special protections outlined in this Annex, you will still be afforded the protections that are explained in the Australian Grievance Resolution Policy.

3.5 However, if you raise a concern that includes a personal work-related grievance, that disclosure may still qualify for protection under this Annex if:

• the disclosure includes information about misconduct of the type referred to in paragraph 3 of this annex (including the examples discussed in paragraph 3.2 of this Annex) (ie a mixed report); or
• the entity has breached employment or other laws punishable by imprisonment for a period of 12 months or more.

3.6 You are also entitled to seek advice or representation from a legal practitioner who is external to DLA Australia Services or the Partnership in relation to the operation of the whistleblowing provisions under the Corporation Act and/or Tax Act. In these circumstances, any communications with your legal practitioner will be confidential and will be protected.

3.7 Under the Tax Act, a disclosure will be a Disclosable Matter if:

• the Eligible Whistleblower has reasonable grounds to suspect that the information indicates misconduct, or an improper state or affairs or circumstances in relation to the tax affairs of DLA Australia Services or the Partnership or an associate of DLA Australia Services or the Partnership; and
• the Eligible Whistleblower considers that the information may assist the Eligible Recipient to perform functions or duties that relate to the tax affairs of DLA Australia Services or the Partnership.

4 “Emergency” and “public interest” disclosures

4.1 In certain limited circumstances relating to a Protected Disclosure under the Corporations Act, an Eligible Whistleblower may make an “emergency” or “public interest” disclosure of information to a member of a Parliament (Commonwealth, State or Territory) or to a journalist.

4.2 DLA Australia Services encourages employees to make use of the whistleblowing procedures set out in this Annex such that it is not necessary to make an Emergency Disclosure or a Public Interest Disclosure. If you intend to make an Emergency or Public Interest Disclosure, DLA Australia Services strongly encourages you to seek independent legal advice so that you understand the criteria for making these types of Protected Disclosures.

4.3 However, DLA Australia Services acknowledges that in some circumstances, it may be necessary for individuals to make such disclosures and will comply with all legislative requirements, as set out in this Annex, in respect of such disclosures.

4.4 Emergency Disclosure means a disclosure where:

• the discloser has previously made a disclosure of that information that qualifies for protection under the Corporations Act; and
• the discloser has reasonable grounds to believe that the information concerns a substantial and imminent danger to the health and safety of one or more persons or to the natural environment; and
• the discloser notified (in writing) the body to which it made the disclosure that:
  • includes sufficient information to identify the previous disclosure; and
  • states that the discloser intends to make an emergency disclosure; and
• disclosure is made to:
  • a member of Parliament (Commonwealth, State or Territory); or
  • a journalist; and
• the extent of the information disclosed in the emergency disclosure is no greater than necessary to inform the recipient in paragraph d of the substantial and imminent danger.

4.5 Public Interest Disclosure means disclosure where:

• the discloser has previously made a disclosure of that information that qualifies for protection under the Corporations Act; and
• at least 90 days have passed since the previous disclosure; and
• the discloser does not have reasonable grounds to believe action is being taken in relation to the disclosure; and
• the discloser has reasonable grounds to believe that making a further disclosure is in the public interest; and
• following 90 days, the discloser notified (in writing) the body to which it made the disclosure that:
  • includes sufficient information to identify the previous disclosure; and
  • states that the discloser intends to make a public interest disclosure; and
• the public interest disclosure is made to:
  • a member of Parliament (Commonwealth, State or Territory); or
  • a journalist; and
• the extent of the information disclosed in the public interest disclosure is no greater than necessary to inform the recipient in paragraph f of the misconduct or the relevant information.

4.6 Note: for the purpose of this Annex and the Corporations Act, a “journalist” is a person who is professionally working for a newspaper, magazine, radio or television broadcasting service, or commercial electronic services (including a service provided through the internet) which are operated similar to a newspaper, magazine, or radio or television broadcast.

Eligible whistleblower

5.1 For a report to be a Protected Disclosure it must be made by an Eligible Whistleblower under the Corporations Act and Tax Act

5.2 An Eligible Whistleblower is someone who is (or has been) any of the following:

• an officer (including a director or company secretary – hereon defined as officer) of DLA Australia Services;
• employee of DLA Australia Services;
• an individual who supplies services or goods to DLA Australia Services (paid or unpaid) (or an employee of that individual);
• an individual who is an associate of DLA Australia Services, such as a shareholder;
• a relative or dependent of an individual above (including, but not limited to, a spouse, parent, child, grandchild, or sibling); or
• an individual prescribed as such by the relevant regulations to the Corporations Act or Tax Act as the case may be.

5.3 Eligible Recipient

5.4 Under the Corporations Act, an Eligible Recipient is any of the following:

• an officer or senior manager of DLA Australia Services or any of DLA Australia Services’ related body corporates;
• an auditor or a member of an audit team conducting an audit of DLA Australia Services or any of DLA Australia Services’ related body corporates;
• an actuary of DLA Australia Services or a related body corporate;
• any other person authorised by the Company to receive eligible disclosures under the Corporations Act. At DLA Australia Services, the authorised people are those listed in Part 1 of Schedule 1 to this Annex and includes the Whistleblower Investigation Officer and the Alternative Whistleblower Investigation Officer; or
• a person or body prescribed in the regulations to the Corporations Act.

5.5 Under the Tax Act, an Eligible Recipient is any of the following:

• an officer or senior manager of DLA Australia Services;
• any employee or officer who has functions or duties that relate to the entity’s tax affairs;
• a partner in the Partnership;
• an auditor, or a member of an audit team conducting an audit of DLA Australia Services or the Partnership;
• a registered tax agent or BAS agent who provides tax agent or BAS services to DLA Australia Services or the Partnership;
• a person authorised by DLA Australia Services or the Partnership to receive eligible disclosures. The authorised people for DLA Australia Services or the Partnership are those listed in Part 1 of Schedule 1 to this Annex and includes the Whistleblower Investigation Officer and the Alternative Whistleblower Investigation Officer; or
• a person or body prescribed in the regulations to the Tax Act.

6 Reporting wrongdoing

6.1 DLA Australia Services and the Partnership (as applicable) encourages you to report concerns internally in accordance with the process below. You are however, able to report concerns externally (see paragraph 6.13 below) and still qualify for the special protections.

6.2 A report can be made on an anonymous or named basis and will qualify for protection if all other criteria is met.

6.3 As already noted, a report can still qualify for the special protections even if it turns out to be incorrect.

Internal

6.4 For a report to be a Protected Disclosure it must be made to an Eligible Recipient.

6.5 While all Eligible Recipients are able to receive Protected Disclosures, DLA Australia Services and the Partnership would like to identify and address any wrongdoing as early as possible. Therefore, in order to ensure that your concern is handled in the most effective and efficient manner, DLA Australia Services and the Partnership encourages you to raise your concern with through the SafeCall platform or the Whistleblower Investigation Officer in the first instance.

6.6 Part 1 of Schedule 1 to this Annex sets out the contact details for the Whistleblower Investigation Officer.

6.7 You can raise your concern with the Whistleblower Investigation Officer in a number of ways, including by:

• Face-to-face meeting held via video link (when attendees are in different locations).
• the Safecall Speak Up whistleblowing service. This service has been configured to ensure your report or disclosure is dealt with appropriately and in compliance with all applicable law and regulation. It is the firm’s preferred route.
• email, marked “strictly private and confidential” in the subject line; or
• telephone call.

6.8 In your communication with the Whistleblower Investigation Officer, please advise whether you would like your identity to remain confidential. If you are reporting on an anonymous basis, please give consideration as to how the Whistleblower Investigation Officer might be able to contact you in the future (for example, you might decided to provide an unlisted telephone number but not your name).

6.9 Once the Whistleblower Investigation Officer has had an opportunity to consider your report, the Whistleblower Investigation Officer will advise you whether your report qualifies as a Protected Disclosure. If appropriate, the Whistleblower Investigation Officer will also advise you of likely next steps (for example, whether there will be an investigation) and an estimate of the anticipated timeline.

6.10 If you do not consider that it is appropriate for you to raise your concern with the Whistleblower Investigation Officer (eg if there is a conflict of interest), you may report your concern to the Alternative Whistleblower Investigation Officer (either anonymously or using your name, and via the same methods discussed at paragraphs 6.7 and 6.8 above). In these circumstances, the Alternative Whistleblower Officer will perform the functions of the Whistleblower Investigation Officer (including those referred to in paragraph 6.9 above).

6.11 Part 1 of Schedule 1 to this Annex sets out the contact details for the Alternative Whistleblower Investigation Officer.

6.12 If you raise your concern with one of the other Eligible Recipients, where it is appropriate to do so, they will ask that you raise your concern with the Whistleblower Investigation Officer (remembering that your concern can be raised on an anonymous basis). This is because, in most cases and so long as there is no conflict of interest, it will be the Whistleblower Investigation Officer who will be responsible for considering the concern, determining whether it is a Protected Disclosure and what steps should be taken to investigate it. In these circumstances, unless you provide the Eligible Recipient with consent to reveal your identity, they will keep your identity confidential.

External

6.13 As alerted to previously, Protected Disclosures may also be made to parties outside of DLA Australia Services or the Partnership.

6.14 Disclosable Matters:

• under the Corporations Act, may be reported by Eligible Whistleblowers to either ASIC or APRA; and
• under the Tax Act, may be reported by Eligible Whistleblowers to the Commissioner of Taxation.

6.15 Those external parties, and how a disclosure may be made to them, are outlined in further detail in of Part 1 of Schedule 1 to this Annex.

6.16 In limited circumstances, an Eligible Whistleblower who makes a Protected Disclosure under the Corporations Act may also have the right to raise their concern with a Member of Parliament (Federal, State or Territory) or a journalist. This is explained in further detail in section 4 to this Annex. Please read this carefully and if necessary, seek independent legal advice so that you understand the criteria for making these types of Protected Disclosures.

7 Investigating Protected Disclosures

7.1 Where a Protected Disclosure is made internally, DLA Australia Services or the Partnership (as applicable) will consider the report and, if appropriate, conduct an objective investigation have regard to the nature and circumstances of the reportable conduct.

Fair Treatment of those to whom the Disclosure Relates

7.2 DLA Australia Services and the Partnership (as applicable) will ensure fair treatment of employees who are referred to in Protected Disclosures that qualify for protection, including any employees to whom such disclosures relate, by:

• ensuring any investigations are free from bias, appropriately resourced and made in a timely fashion; and
• allowing people who are named in disclosures an opportunity to respond to allegations against them at an appropriate time during any investigation.

7.3 The Investigation Process

While the particulars of each investigation will vary depending on the nature of the disclosure, a synopsis of the overall investigation process is as follows:

• the disclosure should be made to the Whistleblower Investigation Officer in the first instance;
• the Whistleblower Investigation Officer will undertake a preliminary review of the allegations raised in the disclosure as soon as reasonably possible after its receipt. This may include collecting further material in order to consider the allegations;
• after this preliminary review, the Whistleblower Investigation Officer will decide whether the disclosure is a Protected Disclosure and whether an in-depth investigation is required. If so, the Whistleblower Investigation Officer will determine:
  • the nature and scope of the investigation;
  • the person(s) within and/or outside DLA Australia Services or the Partnership that should lead the investigation;
  • the nature of any technical, financial or legal advice that may be required to support the investigation; and
  • the anticipated timeframe for the investigation.
• at this stage, unless the disclosing person has elected to remain anonymous and/or it is not appropriate to do so, the Whistleblower Investigation Officer will advise that individual of the decision as to whether:
  • the disclosure is a Protected Disclosure; and
  • a further investigation will be carried out;
• all material collected or received for the purpose of the investigation must be stored in a secure, confidential location, which is accessible only to the persons (and, if applicable, their advisers – subject to confidentiality requirements) that are conducted/conducted the investigation;
• subject to confidentiality requirements:
  • the Whistleblower Investigation Officer will maintain a register with details of any disclosure that has been made under this Annex. If an in-depth investigation is carried out, the Whistleblower Register will also record details of the progress of any investigation and the outcome; and
  • DLA Australia Services and the Partnership will periodically update its executives and board members (or partners as applicable) on this Annex and any reports made under it. When making these reports it will ensure that it does not breach its obligations of confidentiality.

Should a Protected Disclosure relate to allegations about the Whistleblower Investigation Officer, the Alternative Whistleblower Investigation Officer will carry out the steps referred to in this section – and the Whistleblower Investigation Officer will not be involved in conducting or receiving reports of any investigation of the concerns

7.4 All investigations will be conducted in a timely manner. Throughout the investigation, where appropriate, DLA Australia Services or the Partnership (as applicable) will provide feedback to the Eligible Whistleblower who has made the Protected Disclosure regarding the investigation’s progress and/or outcome (subject to considerations relating to the privacy against those whom allegations are made, and being conscious of not prejudicing the investigation or other matters arising from a report being made).

8 Whistleblower Protections

8.1 DLA Australia Services and the Partnership is committed to providing support and protection in response to genuine reports of wrongdoing and will not tolerate any retaliations, or threats of retaliation.

Protecting your identity

8.2 There is no requirement for a Whistleblower to identify themselves in order to qualify for protection.

8.3 If you choose to identify yourself to an Eligible Recipient but otherwise want your identity to remain confidential, your identity (or information that is likely to lead to identity being known) will not be disclosed. This is subject on to certain specific exceptions below:

The identity of a person that has made a Protected Disclosure (ie the Eligible Whistleblower) will remain confidential unless it is revealed to:

• ASIC or APRA (in relation to disclosures protected under the Corporations Act);
• the Commissioner of Taxation (in relation to disclosures under the Tax Act);
• a member of the AFP;
• a legal practitioner for the purposes of obtaining legal advice or representation; or
• with the consent of the discloser.

8.4 There is no requirement for an Eligible Whistleblower to identify themselves in order for that whistleblower’s disclosure to qualify as a Protected Disclosure.

8.5 If an Eligible Whistleblower wishes to remain anonymous, DLA Australia Services or the Partnership (as applicable) will, in practice, take all reasonable steps to protect their confidentiality including, but not limited to, the following:

• the whistleblower will be referred to in a gender-neutral context;
• where possible, the whistleblower will be contacted to help identify certain aspects of the disclosure that could inadvertently identify them;
• all paper and electronic documents and other materials relating to disclosures under this Annex will be stored securely; and
• access to all information relating to a disclosure under this Annex will be limited to those directly involved in managing and investigating the disclosure.

8.6 A discloser’s identity may be revealed to a court where it is necessary to:

• give effect to the Tax Act or Corporations Act;
• in the interests of justice to do so.

8.7 Under no circumstances does this Annex allow for or condone the disclosure of the actual identity of a whistleblower who has made a Protected Disclosure other than as set out above (and it would be illegal to do otherwise). However, for the purposes of an investigation, information that is likely to or may lead to the identification of the whistleblower (but is not their identity) may be disclosed if it is reasonably necessary for the purpose of the investigation concerning the subject matter of the Protected Disclosure. DLA Australia Services or the Partnership (as applicable) will take all reasonable steps to reduce the risk that the whistleblower will be identified as a result of that disclosure of information.

8.8 DLA Australia Services or the Partnership (as applicable) is able to disclose the subject matter of the Protected Disclosure without the Eligible Whistleblower’s consent as appropriate.

8.9 Any release of information in breach of this Annex will be regarded as a serious matter and may result in disciplinary action. There also may be serious consequences under the Corporations Act or Tax Act.

8.10 Any release of information in breach of this Annex will be regarded as a serious matter and may result in disciplinary action together with possible legal consequences (such as fines and, in extreme cases, imprisonment).

Protecting you from legal action

8.11 Eligible Whistleblowers who make a Protected Disclosure are protected as follows:

• they are protected from any civil, criminal or administrative liability (including disciplinary action) for making the disclosure;
• no contractual or other remedy may be enforced and no contractual or other right may be exercised, against the discloser on that basis; and
• the information they have disclosed is not admissible in evidence against the person in criminal proceedings or in proceedings for the imposition of a penalty, other than proceedings in respect of the falsity of the information.

8.12 Whistleblowers will not receive protection for their own misconduct or wrongdoing.

Protecting you from detriment

8.13 Eligible Whistleblowers who make a Protected Disclosure will be protected from detrimental conduct.

8.14 Detrimental conduct might include, for example:

• dismissal;
• a change in duties or a demotion;
• a transfer to another office or location;
• harassment, bullying or intimidation;
• harm or injury;
• reputational damage;
• damage to property; or
• damage to person’s financial position.

8.15 Detrimental conduct is unlikely to include, for example, administration action that is taken to protect an Eligible Whistleblower who has made a Protected Disclosure from detriment (such as enabling them to work from home).

8.16 DLA Australia Services and the Partnership will not tolerate any form of detrimental conduct, which may result in disciplinary action being taken, up to and including termination of employment. There are also separate and serious legal consequences for causing detriment to an Eligible Whistleblower who has made a Protected Disclosure (such as fines and, in extreme cases, imprisonment).

8.17 DLA Australia Services or the Partnership (as applicable) will thoroughly investigate reports of any victimisation or detrimental conduct related in any way to a Protected Disclosure being made. An Eligible Whistleblower who is subjected to detrimental treatment (or a threat to cause detriment) should report this immediately to the Whistleblower Investigation Officer so that DLA Australia Services or the Partnership (as applicable) can provide them with the necessary support

8.18 Eligible Whistleblowers may seek independent legal advice or contact the relevant regulatory body (such as ASIC for Disclosable Matters under the Corporations Act) if they believe they have suffered detriment. However, individuals are encouraged to inform DLA Australia Services  or the Partnership in the first instance.

Compensation and other remedies

8.19 A Whistleblower who makes a Protected Disclosure may also be entitled to court ordered remedies, including:

• compensation for any loss or damage suffered;
• injunctive relief restraining a person from engaging in detrimental conduct, or to prevent the effects of the detrimental conduct;
• an order requiring an apology be given; or
• any other order that the court thinks is appropriate.

Support for whistleblowers

8.20 DLA Australia Services or the Partnership (as applicable) will take appropriate measures to support the wellbeing and protect an Eligible Whistleblower who has made a Protected Disclosure including in circumstances where they may be the victim of detrimental conduct.

8.21 In addition to matters already discussed in this section, this support (where appropriate) may be in the form of:

• assigning a support person to the Eligible Whistleblower who has made the Protected Disclosure. This person will be the Eligible Whistleblower’s point of contact while a matter is investigated and available to the Eligible Whistleblower to discuss any concerns that they may have, and to help arrange additional support where needed;
• considering whether the Eligible Whistleblower who has made the Protected Disclosure should be:
• offered flexible working arrangements,
• permitted paid time off work; and/or
• able to work from an alternative location,
• while a matter is investigated at the discretion of the Whistleblowing officer;
• access to DLA Australia Services’ or the Partnership’s employee assistance program for current employees.

9 Accessing the Annex

9.1 This Annex will be:

• electronically distributed to all current DLA Australia Services and Partnership employees and contractors where appropriate.
• included in the induction information packs that are provided to all new DLA Australia Services and Partnership employees and contractors during their induction;
• shared as part of the email communication that provides access to the whistleblowing training module
• available on request from HR.

9.2 A copy of the Annex will also be available on Pulse, which is readily accessible by all employees of DLA Australia Services and the Partnership. The Annex will also be made available on the Safecall website for DLA Piper Australia.