In December 2023 the Department of Health and Aged Care released the exposure draft of the Bill for the new Aged Care Act, which is expected to be finalised in 2025.
The new Act will implement fundamental changes to the current Aged Care Act 1997 and the Aged Care Quality and Safety Commission Act 2018.
One of these changes includes new whistleblower protection requirements for aged care providers. Unlike the Aged Care Act, the new legislation will include specific provisions on Whistleblower Protection under the Information Management Chapter – including a requirement that all registered providers maintain a Whistleblower policy.
We’ve provided below an overview of the key Whistleblower Protection requirements under this legislation to help Aged Care providers prepare for their new obligations.
What is Whistleblowing?
Whistleblowing is the intentional disclosure of information about wrongdoing or misconduct in an organisation, to the organisation itself, regulatory bodies, law enforcement or the media. Misconduct refers to illegal, improper or unethical conduct which is in breach of legislation, regulation or is generally fraudulent.
A Whistleblower Protection program protects workers who wish to speak up about wrongdoings or misconduct.
What Qualifies as a Whistleblower Disclosure?
A disclosure qualifies for protection when the individual has reasonable grounds to believe their disclosure indicates an entity has contravened with the law. Under the proposed new Act, this disclosure can be made orally or in writing by an individual associated with the organisation to any of the following:
- A member of staff of the Aged Care Quality and Safety Commission (ACQSC);
- The Secretary (or any other official) of the Department of Health and Aged Care;
- The Australian Prudential Regulatory Authority (APRA);
- The Australian Securities and Investment Commission (ASIC);
- A police officer;
- An officer, senior manager or auditor of the organisation; or
- A person that the organisation has authorised to receive a disclosure (this can include a person external to the organisation).
What Protections does a Whistleblower have?
- The individual is not subject to any civil, criminal or administrative liability for making their disclosure;
- No contract or remedy may be enforced and no contractual or other right can be exercised against the individual on the basis of their disclosure; and
- A contract that the individual is a party to cannot be terminated on the basis that their disclosure constitutes a breach of that contract.
So what does this mean for Aged Care Providers?
It is the aged care provider’s responsibility to implement a robust Whistleblower Protection policy for their organisation. This should include:
- Nominating a qualified/ experienced Whistleblower Protection Officer;
- Informing their staff of their rights to make protected whistleblower disclosures;
- Ensuring aged care workers who make a disclosure are not victimised, and that their identity is kept confidential; and
- Providing support and positive action for whistleblowers (for example, reallocation or a leave of absence while the matter is under investigation).
Most of these requirements are already mandatory under the Corporations Act 2001, while some details are also covered under Division 54 – Quality Care of the Aged Care Act 1997. Therefore, providers should already have some form of Whistleblower Protection policy in place. However, it is important to ensure these policies meet the more in depth requirements of the new Aged Care Act.
How SPP Can Help Your Organisation
To assist providers in preparing for these Whistleblower Protection requirements in the new Aged Care Act, we have these Whistleblower Protection resources:
- Policy: Whistleblower Protection for public companies;
- Policy: Whistleblower Protection for small organisations; and
- Information Sheet: Whistleblower Protection.
All of the above resources can be found in our Reading Room by searching the keyword “whistleblower”.
Want to get a head start on Whistleblower compliance?
Sign up to SPP to access our Whistleblower resources!
