Whistleblowing is when someone reports – discloses – an issue within an organisation to an external body or person. For example, to a regulator, the media, the general public or the government. Whistleblower protections mean that people who disclose information are protected from harm or threats.
Whistleblowing is an important part of identifying actions that go against the Act. Protecting whistleblowers helps build a more transparent and accountable aged care system.
The Statement of Rights states that older people have the right to make a complaint or report an issue without fear of being punished or treated unfairly. The Act has stronger whistleblower protections to support this right. These protections also apply to family, friends and aged care workers. When someone follows certain rules to make a complaint or share information, they are protected under the Act.
When people are protected
The person who makes a report is called the discloser. The person or organisation they make the report to is called the recipient. There are certain rules that a discloser must follow to be protected.
To be protected, a discloser must reasonably suspect that a provider or person hasn’t been or isn’t following the Act. They can make the report to any of these recipients:
- the Commissioner, Complaints Commissioner, or staff at the Commission
- the System Governor or an official of the department
- a registered provider, responsible person, or aged care worker
- a police officer
- an independent aged care advocate.
If the report meets the requirements for protection, it’s called a qualifying disclosure.
The Act requires that all providers have a general complaints and feedback management system. This helps makes sure that older people, their family and carers, and workers have a way to raise their concerns and have them addressed. Providers also need to have a specific whistleblowing system and policy in place to make sure disclosers are protected. Providers have to make sure that responsible persons, aged care workers and any associated service providers follow this.
How people are protected
When someone makes a qualifying disclosure, they get certain whistleblowing protections. These protections help create an environment where people can feel more comfortable raising concerns. There are different ways the Act protects whistleblowers.
Legal protection
Disclosers get immunity from liability. This means they are protected from legal penalties such as fines, prison and having a criminal record for making a qualifying disclosure. It also means they are protected from administrative liability such as disciplinary action, internal sanctions or performance management. Someone also can’t have their contract ended for whistleblowing.
However, the discloser is still legally responsible for any of their own behaviour. This means they do not get immunity for anything they have done which may be revealed as part of their disclosure.
Anonymity
The discloser and any other person they mention in the disclosure can be anonymous if they ask to and it’s reasonable to achieve. This means no one will know who they are.
Protection from unfair treatment
The discloser must not be treated unfairly – victimised – for making a report. This can include anything that causes harm or damage to someone, or even threatening to cause harm, such as:
- discriminating against them
- firing them from their job
- taking away their services
- not giving them information they need.
A person or provider who treats a discloser unfairly may have to pay a fine or be subject to a court order. For example, an injunction that stops them from taking certain actions.
Confidentiality
The discloser’s identity is kept confidential. Fines apply for not keeping the discloser’s identity confidential, except in certain situations explained below.
Exceptions to confidentiality
There are a limited number of situations when a recipient is allowed to share a discloser’s identity with certain people or organisations.
They can share a discloser’s identity:
- with the Commissioner, Complaints Commissioner or a Commission staff member
- with the System Governor or an official of the department
- with the Inspector-General of Aged Care
- with a police officer
- with a legal practitioner
- with a court, tribunal or Royal Commission
- with the discloser’s consent
- if the discloser chooses to have the issue managed as a complaint or feedback under the Act
- if the information the discloser provides was legally available to the public before they reported the issue
- if it is necessary to stop or reduce the risk of serious threats to someone’s health, safety or wellbeing.
Whistleblowing protections in practice
Case study: Emma, a registered nurse at a residential aged care home, notices repeated neglect of residents in one wing of the home. Older people are not being given their medications at the right times, hygiene standards are poor and staff are discouraged from reporting issues.
Action: Emma suspects the provider is not following the Aged Care Act, based on seeing repeated neglect, with a workplace culture that discourages speaking up. She makes a disclosure to the Commission, choosing to remain anonymous.
Protections: Emma has reasonable grounds to believe the provider isn’t following the Act and she reported the issue to an eligible recipient (the Commission). This means she is protected from being sued, fined, or disciplined for making the disclosure. Her identity is protected and can’t be revealed to the provider.
Outcome: Emma can keep working without fear of punishment or threats for what she’s reported. The Commissioner can use their regulatory powers to respond to the issue and make sure that the residents in the care home are getting quality care that’s in line with the Act.