Larissa Waters (Queensland, Australian Greens) Share this | Hansard source

With the Senate failing to support our amendment to insert criminal penalties and the amendment you just voted down to remove chapter 4 from the bill, the Greens can no longer support the passage of this legislation. We are deeply concerned that the parliament is conceding the opportunity for once-in-a-generation reform to the self-interest of for-profit providers at the expense of participants. With the rejection of our amendment to put criminal penalties back into the bill, we have significant concerns about the enforceability of the rights based framework. We've long supported the shift to the rights based framework, but older people, their advocates and their loved ones have been clear that those rights must be unequivocal, clear and enforceable. Aspirational rights do not go anywhere near the heart of the problem in aged care. The operation of Australia's aged-care system as a market means the incentive for providers to profit always trumps the provision of high-quality care. Further, we're worried the bill will usher in a permanent state of expanded means testing and user pays. Instead of treating aged care as health care, we'll turn it into a marketplace. Participants and the government will continue to subsidise for-profit aged-care providers. We cannot risk a two-tiered system that bakes in equality. The elderly are not commodities; they're people. First and foremost, aged care must be universal, and for these reasons we cannot support the passage of the bill. I'll now seek leave to move the last lot of Greens amendments to the bill.

Leave granted.

I move amendments (1) to (5) on sheet 3101 as well as amendments on sheet 3102 to sheet 3104 altogether:

SHEET 3101

(1) Clause 547, page 508 (before line 4), insert:

Internal disclosures

(2) Clause 547, page 508 (line 4), omit "A disclosure", substitute "(1) A disclosure".

(3) Clause 547, page 508 (lines 17 to 19), omit paragraph 547(c), substitute:

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

(i) indicates that an entity may have contravened a provision of this Act; or

(ii) indicates that an entity may have engaged in conduct covered by subsection (2); or

(iii) if an entity is a body corporate—indicates that a related body corporate of the entity may have engaged in conduct covered by subsection (2); or

(iv) concerns misconduct, or an improper state of affairs or circumstances, in relation to an entity.

(4) Clause 547, page 508 (after line 19), at the end of clause 547, add:

(2) This subsection covers the following conduct:

(a) conduct that constitutes an offence against a law of the Commonwealth that is punishable by imprisonment for a period of 12 months or more;

(b) conduct that represents a danger to the public or an individual who accesses the aged care system;

(c) conduct that is prescribed by the rules.

(3) A disclosure covered by subsection (1) is an internal disclosure.

(4) Subsection (1) does not apply to a disclosure of information to the extent the information disclosed concerns a personal work-related grievance of the discloser.

External disclosures

(5) A disclosure of information (an external disclosure) by an individual (the discloser) qualifies for protection under this section if:

(a) the discloser has previously made an internal disclosure of the information; and

(b) the person to whom the internal disclosure was made:

(i) took no action in relation to the internal disclosure; or

(ii) did not complete an investigation in relation to the internal disclosure before the end of the period of 90 days beginning on the day the internal disclosure was made; or

(iii) completed an investigation in relation to the internal disclosure that resulted in no further action being taken; and

(c) the external disclosure is made to one or more of the following:

(i) a member (however described) of the Parliament of the Commonwealth or a State, or of the legislature of a Territory;

(ii) a person who works in a professional capacity as a journalist; and

(d) the discloser reasonably believes that the external disclosure is in the public interest.

Disclosures to support persons

(6) A disclosure of information by an individual (the discloser) qualifies for protection under this section if:

(a) the disclosure is made to one or more of the following:

(i) an officer or employee of a trade union;

(ii) an independent aged care advocate;

(iii) a legal practitioner; and

(b) the disclosure is made for the purposes of seeking support or advice in relation to the information, or another disclosure relating to the information.

(7) A disclosure of information by an individual (the discloser) qualifies for protection under this section if:

(a) the disclosure is made to a medical practitioner or psychologist; and

(b) the disclosure is made for the purposes of seeking or obtaining medical or psychiatric care, treatment or counselling (including psychological counselling).

(5) Clause 550, page 511 (line 3), omit "paragraph 547(c)" substitute "paragraph 547(1)(c)".

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SHEET 3102

(1) Page 509 (after line 3), after clause 548, insert:

548A Claims for protection

(1) If, in civil or criminal proceedings (the primary proceedings) instituted against an individual in a court, the individual makes a claim (relevant to the proceedings) that, because of section 548, the individual is not subject to any civil, criminal or administrative liability for making a disclosure that qualifies for protection under section 547:

(a) the individual bears the onus of adducing or pointing to evidence that suggests a reasonable possibility that the claim is made out; and

(b) if the individual discharges that onus—the party instituting the primary proceedings against the individual bears the onus of proving that the claim is not made out; and

(c) the court must deal with the claim in separate proceedings; and

(d) the court must adjourn the primary proceedings until the claim has been dealt with; and

(e) none of the following:

(i) any admission made by the individual in the separate proceedings;

(ii) any information given by the individual in the separate proceedings;

(iii) any other evidence adduced by the individual in the separate proceedings;

is admissible in evidence against the individual except in proceedings in respect of the falsity of the admission, information or evidence; and

(f) if the individual or another person gives evidence in the separate proceedings in support of the claim—giving that evidence does not amount to a waiver of privilege for the purposes of the primary proceedings or any other proceedings.

(2) To avoid doubt, a right under section 126K of the Evidence Act 1995 not to be compelled to give evidence is a privilege for the purposes of paragraph (1)(f) of this section.

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SHEET 3103

(1) Clause 551, page 511 (after line 24), after subclause (2), insert:

(2A) In proceedings for a civil penalty order against an entity for a contravention of subsection (1):

(a) the person seeking the order bears the onus of adducing or pointing to evidence that suggests a reasonable possibility of the matters in paragraphs (1)(a) and (b); and

(b) if that onus is discharged—the entity bears the onus of proving that the claim is not made out.

(2) Clause 551, page 512 (after line 19), after subclause (5), insert:

(5A) In proceedings for a civil penalty order against an entity for a contravention of subsection (3):

(a) the person seeking the order bears the onus of adducing or pointing to evidence that suggests a reasonable possibility of the matters in paragraphs (3)(a) and (b); and

(b) if that onus is discharged—the entity bears the onus of proving that the claim is not made out.

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SHEET 3104

(1) Page 509 (after line 22), after clause 549, insert:

549A Certain recipients to take steps to protect disclosers

If:

(a) an individual makes a disclosure that qualifies for protection under section 547 to an entity (the recipient); and

(b) the recipient is:

(i) a registered provider; or

(ii) a responsible person of a registered provider;

the recipient must take such steps as are reasonable in the circumstances to protect the individual against any reprisals that have been, or may be, taken in relation to the disclosure.

The Greens are concerned about the strength of the whistleblower provisions contained in the bill. In the absence of a worker voice, it's critical that participants and workers are protected from adverse consequences for whistleblowing. The royal commission shows that people must feel safe to speak up when something is wrong, particularly in a sector like aged care, where it can be a matter of life or death. These amendments go towards strengthening the protections for whistleblowers, and we strongly encourage the Senate to support them.