Andrew Bartlett (Queensland, Australian Democrats) Share this | Hansard source

I move amendment R(1) on sheet 4875 revised that was circulated in the name of Senator Allison:

R(1) Page 20, (after line 11), at the end of the bill, add:

Schedule 8—Protection of information

Aged Care Act 1997

1 After section 86-8

Insert:

86-8A Whistleblowing disclosure that qualifies for protection

        (1)    Despite any other provision of this Act, a person may disclose protected information in accordance with this section.

        (2)    If a person makes a disclosure that qualifies for protection under this Part:

             (a)    the person is not subject to any civil or criminal liability for making the disclosure; and

             (b)    no contractual or other remedy may be enforced, and no contractual or other right may be exercised, against the person on the basis of the disclosure.

Note: This subsection does not provide that the person is not subject to any civil or criminal liability for conduct of the person that is revealed by the disclosure.

        (3)    Without limiting subsection (2):

             (a)    the person has qualified privilege (see subsection (4)) in respect of the disclosure; and

             (b)    a contract to which the person is a party may not be terminated on the basis that the disclosure constitutes a breach of the contract.

        (4)    For the purpose of paragraph (3)(a), qualified privilege, in respect of the disclosure, means that the person:

             (a)    has qualified privilege in proceedings for defamation; and

             (b)    is not, in the absence of malice on the person’s part, liable to an action for defamation at the suit of a person;

in respect of the disclosure.

        (5)    For the purpose of paragraph (4)(b), malice includes ill-will to the person concerned or any other improper motive.

        (6)    This section does not limit or affect any right, privilege or immunity that a person has, apart from this section, as a defendant in proceedings, or an action, for defamation.

86-8B Protection for whistleblowers

For the avoidance of doubt, section 16 of the Public Service Act 1999 applies to an Australian Public Service employee performing functions in accordance with this Act.

86-8C Disclosures qualifying for protection under this Part

A disclosure of information by a person (the discloser) qualifies for protection under this Part if:

             (a)    the discloser is:

                   (i)    an officer of a company or aged care service provider; or

                  (ii)    an employee of a company or aged care service provider; or

                 (iii)    a person who has a contract for the supply of services or goods to a company or aged care service provider; or

                 (iv)    an employee of a person who has a contract for the supply of services or goods to a company or aged care service provider; and

             (b)    the disclosure is made to:

                   (i)    ASIC; or

                  (ii)    the company’s auditor or a member of an audit team conducting an audit of the company or aged care service provider; or

                 (iii)    a director, secretary or senior manager of the company or aged care service provider; or

                 (iv)    a person authorised by the company or aged care service provider to receive disclosures of that kind; or

                  (v)    the Aged Care Standards and Accreditation Agency; and

                 (vi)    the Aged Care Complaints Revolution scheme.

             (c)    the discloser informs the person to whom the disclosure is made of the discloser’s name before making the disclosure; and

             (d)    the discloser has reasonable grounds to suspect that the information indicates that:

                   (i)    the company or aged care service provider has, or may have, contravened a provision of the Corporations legislation or the Aged Care Act 1997; or

                  (ii)    an officer or employee of the company or aged care service provider has, or may have, contravened a provision of the Corporations legislation or the Aged Care Act 1997; and

(e)the discloser makes the disclosure in good faith.

This amendment relates to the area of protection of information and whistleblower disclosures. Close observers would note that the amendment is in many ways identical to amendments that have been moved to other legislation. It is simply a standard amendment the Democrats are attempting to use to try and improve whistleblower provisions in federal legislation. The arguments have been made a number of times before, and the amendment would be appropriate for the Aged Care Amendment (2005 Measures No. 1) Bill 2005.