The new Aged Care Act (Act) is expected to commence on 1 July 2024. Some of the big changes coming with the Act include the expansion of whistleblower protections for individuals and the introduction of new whistleblower obligations for aged care providers. This article will give a brief outline of the new requirements and what providers should do to get ready.

What are the Current Rules for Whistleblowers?

The current rules for whistleblowers in the Aged Care Act 1997 (Cth) are limited, and only relate to disclosure of reportable incidents for the purpose of the Serious Incident Reporting Scheme (SIRS).

Only the following kinds of individuals are eligible for protection when they make disclosures:

• an approved provider of aged care, their staff, or their key personnel
• a care recipient or their family members, representatives, carers, advocates, or any other person of significance to the care recipient
• a volunteer of the provider.

The disclosure must be made to one of the following individuals and the person disclosing must provide their name (anonymous disclosures are currently not eligible for protection):

• the Quality and Safety Commissioner
• an approved provider, staff member or member of key personnel
• another person authorised by the approved provider to receive reports of reportable incidents
• any other person, if done in accordance with the Quality of Care Principles
• a police officer.

What are the New Rules?

The new rules drastically expand the matters about which individuals may make disclosures and still be protected. They also impose new conditions on providers of aged care to protect individuals when they make disclosures.

Under the new Act, when an individual discloses information that they have concerns about, they must do several things to qualify for protection:

• They must tell one of the groups of people referred to in the new Act.
• They must make their disclosure orally or in writing (this includes submissions made anonymously).
• They must have reasonable grounds to suspect that the person or entity their disclosure relates to has breached a provision of the Act.
  
  

Who Can Whistleblowers Disclose To?

Individuals must make their disclosure to one of the following groups to qualify for protection:

• the Aged Care Commissioner or a member of the staff of the Aged Care Quality and Safety Commission
• the System Governor (being the Secretary of the Department of Health and Aged Care)
• an official of the Department of Health and Aged Care
• a registered provider
• a responsible person of the registered provider
• an aged care worker of a registered provider
• a police officer.

One notable difference between the whistleblower provisions in the new Act and other existing whistleblower legislation, such as the Corporations Act 2001 (Cth) and the Public Interest Disclosures Act 2022 (NSW), is that disclosures made to journalists will not attract protection. At the time of writing, the draft Act is still open for consultation, so things may change by the time it is passed into law.

How are Whistleblowers Protected?

If an individual makes a disclosure qualifying for protection, then the new rules say that certain actions can’t be taken against them for making the disclosure:

• The individual will be shielded from any civil, criminal, or administrative liability for making the disclosure and their employer cannot take disciplinary action against them.
• Individuals will be protected from any contractual remedy or contractual right being enforced against them because of their disclosure, including actions taken by their employer for breach of their employment contract.

What Do the New Rules Say About Providers?

Section 96 of the new Act says that it is a condition of registration that providers must maintain a whistleblower policy and complaints and feedback mechanism. They are also prohibited from victimising or discriminating against a person for making a complaint or giving feedback.

Section 357 of the new Act says that providers cannot disclose:

• information that identifies, or that could be used to identify a whistleblower, or
• any other information that may lead to the whistleblower’s identity being revealed.

This applies to information the provider gained because of the information the whistleblower provided. However, there are exceptions which allow a provider to disclose this identifying information to the following groups:

• the Aged Care Quality and Safety Commissioner, or their staff
• the System Governor (being the Secretary of the Department of Health and Aged Care)
• an official of the Department of Health and Aged Care
• the Inspector-General of Aged Care
• a police officer
• a lawyer, but only for the purpose of obtaining legal advice
• a court or royal commission.

The provider may also disclose this information if the whistleblower consents or if it is necessary to prevent or lesson a serious risk to the safety or another person.

Section 368 of the new Act says that whistleblowers cannot be victimised for making a disclosure, and section 360 imposes a positive obligation on providers to prevent victimisation of their workers and protect their identities if they make a disclosure.

Conclusion

The new Aged Care Act is one of the biggest reforms to the sector in recent memory. Even though the new Act is still in draft form, it is important for providers to begin to familiarise themselves with the proposed rules and what they mean for them. For now, providers should start to review their complaints and feedback mechanisms and understand the need to have a whistleblower policy in place after the new Act commences. While providers should already be striving to protect their workers from victimisation when they raise issues, now is a good time to start to codify these practices into written policies and ensure they maintain strong documentation around their complaints management procedures.

More Information

• Department of Health and Aged Care: Exposure draft – Aged Care Bill 2023
• Department of Health and Aged Care: New Aged Care Act - Whistleblower Protections