Stronger whistleblowing laws and the new Aged Care Act

The Aged Care Act 2004 (Cth) (Act) commences 1 July this year. The Act promotes the rights of those who access aged care services funded by the Australian Government and includes changes centred around the needs of patients. The reform comes as a result of concerns about various unsatisfactory examples of substandard care raised before the Royal Commission into Aged Care Quality and Safety, established in 2018.

One of the many recommendations was ‘Recommendation 99 — protection for whistleblowers’. The need to enhance whistleblower protection was articulated by Commissioner Lynelle Briggs AO, who stated:

“It is a sad fact that many older people, their families and care workers are reluctant to speak up about the quality and safety of care because of the fear of reprisal from providers or their staff members.”

Accordingly, Part 5 of Chapter 7 of the Act provides for whistleblower protections covering:

• the definition of what constitutes a whistleblower;
• when a disclosure is protected;
• the obligations of aged care providers and staff to manage anonymity and confidentiality;
• prohibiting victimisation; and
• court powers.

The Act also provides for other laws governing whistleblower protections to run concurrently, such as the protections in the Corporations Act 2001 (Cth) (Corporations Act).

How does a person qualify for protection?

Under section 547 of the Act, any individual described as a ‘discloser’ can qualify for whistleblower protection even when a disclosure is made anonymously.

To qualify for protection, the requirements are:

• The disclosure is made to a person defined in section 547 of the Act, namely:
  • an aged care commissioner or a member of the staff of the Commission;
  • a ‘System Governor’, (ie the Secretary of the Department of Health and Aged Care) or an official of the Department;
  • a registered aged care provider;
  • a responsible person of the registered provider;
  • an aged care worker of a registered provider;
  • a police officer; or
  • an independent aged care advocate.
• Disclosure is made orally or in writing.
• The person has ‘reasonable grounds’ to suspect that the information indicates that the entity may have contravened the Act.

The measure of what is reasonable will need to be tested by the courts. The typical approach has been that the discloser subjectively possesses grounds to suspect the relevant things and that those grounds are objectively reasonable.

Some criticisms by legal advocates include that whistleblower protections only extend to breaches of the Act, suggesting that categories of what is capable of protection ought to extend further.

What are the protections?

Section 548 of the Act provides protections for whistleblowers making a disclosure from the following actions taken against them:

• legal liability — civil, criminal and administrative;
• disciplinary action from an employer (including termination from an employment agreement); or
• contractual remedy.

Whistleblower protection does not extend to any liability for the whistleblower’s misconduct that might be revealed by the disclosure.

The Act also contains offences for the victimisation of whistleblowers, including actual detriment and threatening to cause detriment. The Act allows a Court to impose penalties, including civil penalties or compensation for damages.

Entity obligations

All entities (person, business, partnership, etc.) are obliged to:

• preserve the anonymity of whistleblowers or other parties named in a disclosure; and
• keep a disclosure and its contents confidential.

Exceptions to these obligations include revealing information to the extent necessary to deal with an alleged contravention of the Act.

Aged care providers face additional obligations aimed at protecting staff:

• compliance with offence provisions is a breach; and
• protection of the whistleblower’s identity.

Disclosure under other mechanisms

The Act under section 554 states:

“This Part does not exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Part.”

This provision of the Act allows for other protections for whistleblowers to run concurrently with this Act.

Section 554 of the Act is powerful as it extends the scope of protection available to whistleblowers in aged care to include protections under other frameworks, such as the Corporations Act.

The Corporations Act provides protections for whistleblowers under specific circumstances. Importantly, it allows for public interest disclosures to be made to a journalist (as defined) or a member of parliament when certain requirements are met. This is not a right under the Act. It is therefore important that if an aged care provider is incorporated, its board and senior management realise that they must comply with not only the obligations to protect whistleblowers under the Act, but also a different regime of whistleblower protections under the Corporations Act.

Recommendations for employers

The Act commences on 1 July 2025, introducing a raft of reforms for aged care providers to grapple with. In respect of the new whistleblowing provisions under the Act, aged care providers in their capacity as employers must consider taking the following steps:

Staff training

Employers must ensure any individual engaged to provide aged care services on their premises or otherwise (including independent contractors, agency staff and volunteers), who is an ‘aged care worker’, is fully trained to understand their personal obligations as receivers of a disclosure under the Act.

Training should include:

• the handling of a disclosure, specifically confidentiality and anonymity requirements;
• how to identify when a disclosure has been made (some disclosures may seem innocuous or hard to identify as disclosures);
• providing training as part of the induction process for any contractors or agency staff; and
• repeat training at appropriate intervals to ensure compliance and understanding.

This is not an exhaustive list. It is important for the employer to think laterally about how best to train and educate all of its ‘aged care workers’, whether they are direct employees, independent contractors or labour hire staff.

The Act places further requirements on aged care providers (as defined) to ensure compliance with this part of the Act. As the employer is liable for any contraventions, it is vital that employers adequately train staff to reduce the risk of breaching the Act.

Update whistleblower policies

Employer whistleblower policies and procedures should be updated to reflect the changes to legislation.

Contact us

If you have any questions about how these new provisions will work after 1 July 2025, please contact a member of our Workplace Relations team.