Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to 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.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Aged Care, Disabilities and Carers) Share this | Link to this | Hansard source

The Labor Party will be supporting this amendment. This amendment goes to the protection of whistleblowers—those people who have a view that something that they have seen is untoward or inappropriate. The Labor Party, along with coalition members of the Senate Community Affairs References Committee, recommended in its report—which, I say again, was tabled 10 months ago—that the government undertake an analysis of the suitability of whistleblower protection. This amendment puts into action protection of employment for people who expose something that they think is untoward.

We heard during the last few weeks that one of the horrific events, the abuse of an elderly person, was apparently witnessed by a person and that that person did not report it. It is almost indescribable how offensive that is, but you have to ask why that person did not respond in the absolutely predictable human way and report to somebody that they had witnessed something inappropriate.

This amendment in itself will not prevent such events, unless that person was worried about their job or the potential for a defamation action to follow. What we really need to do in those circumstances is to look to the culture of the facility that allows that to occur. This amendment does go some way to protecting people who disclose that they have seen something untoward that should be reported. The other concern that I have is that the media have reported that someone who did blow the whistle about another event—someone who did report to the person in charge of the facility that they had witnessed something untoward—was sacked. That was one of those cases of shooting the messenger.

This is a sound amendment. Hopefully, the government will support it and, if they do not, I encourage them to explain why it is an inappropriate measure at this point. If the minister is saying that this is not an appropriate measure, what is the minister going to do about ensuring that people who come forward with honestly held concerns will be protected in the transfer of that information from either defamation or loss of their position with the aged care facility? The minister knows that this has happened. The Senate Community Affairs References Committee report also made a recommendation that asked the government what it was going to do about retribution and intimidation. We had strong evidence through the committee process that these things are occurring not only to staff of residential aged care facilities but also to residents and their families.

It is incumbent upon this government to take the committee’s 51 recommendations seriously. It was a unanimous report and those recommendations were made in good faith. We now have the situation where the government is piecemeal picking them off—slowly, slowly—because it has been forced to by these extraordinary and abhorrent revelations that we have heard about over the last month. Let’s do something in a systematic way. Let’s get the response to our report. Let’s find out what the government intends to do. Let’s get on with the job of restoring confidence in residential aged care because it has been sorely threatened by what we have heard over the last month. The Labor Party will be supporting this amendment and we look forward to the government’s support as well.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

Senator McLucas was right when she said that there have been cases where people have observed some heinous events in terms of abuse within aged care facilities and that those cases have caused a lot of public concern over recent months. She is right when she said that examples have recently been reported in the media. In fact, I was the person who made public one such example. I made it very public in a major speech I made to the Aged Care Queensland conference. I did that because I wanted to place the industry on notice; that these things were happening within the industry. Senator McLucas and others would appreciate that that attracted a lot of media attention. I wanted people within the industry to appreciate that that particular issue had come to my attention, and the last thing I wanted to do was to keep the knowledge to myself. By being very open and totally up-front, I think we can all contribute to reinforcing the very strong culture of disclosure and mandatory reporting that already exists within the industry.

The vast majority of people who observe abuse of any sort within an aged care facility report it. I am glad that Senator McLucas, towards the end of her remarks, pulled back from saying that there was a crisis of confidence within the industry or particularly within the minds of residents and relatives. She talked about not wanting to threaten the confidence of people who are involved in the industry, and I commend her for that. By using the words ‘not wanting to threaten the confidence’, she acknowledges what I have been at great pains to do in this place and outside this place—that is, to tell the public that it is my belief that the vast majority of residents and their relatives, the carers, the providers and anybody else involved in the industry believe that the vast majority of people operating in the industry and, in particular, caring for our elderly people in aged care facilities are caring for them in a way that is exemplary. As a result of that, there is much confidence in the industry. As a result of that very dedicated effort and commitment to looking after our aged and frail residents, there is a strong level of confidence. I am never going to stop saying that.

I acknowledge that some bad things have happened, and never at any stage have I sought to hide any knowledge of bad things that have happened—I have sought to answer questions as truthfully as I can, given my level of knowledge at the time I am asked the questions. However, there are some very strong privacy issues involved. The aged care legislation and other acts that impact on the Aged Care Act 1997 have some very strong privacy provisions ingrained in them that prevent the government and other people from impinging in a dramatic way on the privacy of people that are being looked after in our aged care facilities.

I certainly assure the Senate that, whenever I can, I will be totally honest—and that will be in the vast majority of cases subject to, as I said, privacy provisions. The Senate has my assurance that I will always be up-front. I think we need to adopt that approach. If any government, any minister or anybody within the sector seeks to hide wrongdoing, I think that is when confidence will be severely affected. I can assure Senator McLucas that I will be totally up-front with her.

Senator McLucas asked me to talk about the amendment and she asked some very reasonable questions: if you are not supporting it, why aren’t you supporting it and what are you doing? I now wish to address those reasonable questions in a formal way. We have before us an amendment from the Democrats which seeks to make changes to division 86 of the Aged Care Act 1997. That particular division deals with protected information. The amendment attempts to provide whistleblowers with broad-ranging protection. However, these particular measures are piecemeal and, with respect, I think they are ill-considered in the context of the broader aged care system that these bills specifically provide for. It is generally considered that an effective whistleblower regime should, at the very minimum, address four main issues: what information may be disclosed under the legislation, who may make disclosures, to whom disclosures may be made and, lastly, the process for dealing with a disclosure once one has been made.

I am concerned that on each of these points the Democrats amendment appears to again, with respect, miss the mark. In terms of the information that may be disclosed, this amendment is cast extremely widely and the technical advice that I have is that it allows any protected information as defined in the Aged Care Act 1997 to be disclosed. This includes personal information or opinion, whether true or not, about any individual, including residents. This raises a number of concerns, not least of which is the fact that a person could disclose highly personal information about a resident, including information such as medical records and financial information, to a very wide range of individuals and organisations. The individuals to whom disclosure may be made include any company auditor, regardless of whether they have any connection at all with an aged care service, and any person who has been authorised by an aged care service to receive disclosures.

In an extreme example, this could mean that personal medical information about a resident could be disclosed to the local media merely because the aged care service authorised the media outlet to receive this information. I acknowledge that it is an extreme example, but I think sometimes extreme examples, by their very clear definition, are good examples to put forward.

Under the Aged Care Act, protected information may be disclosed to a court, yet even in this case there must be the consent of the person to whom the information relates. No equivalent protection exists in the Democrats amendment, and that is certainly one of its major deficiencies. The amendment also fails to describe what is to be done when a disclosure has been made. For example, the legislation enables disclosures to be made to company auditors, yet company auditors have no power or responsibility to investigate possible breaches of the Aged Care Act. Overall, the amendment appears to expose residents to the risk of their personal information being disclosed, yet, even if a disclosure is made in good faith in an attempt to address a problem, there is no mechanism or process to deal with any such problem.

In contrast, as honourable senators have alluded to in this debate, I have already announced that the government is constructing a package of reforms to further strengthen our already robust aged care system. At the Prime Minister’s invitation, I will shortly seek cabinet agreement to measures to reduce the incidence of abuse of elderly people within our aged care facilities. I have already, as Senator McLucas and other senators in this place know, widely consulted the stakeholders, including some of the people who have suffered the abuse and their families, providers of aged care services and the Aged Care Advisory Committee. I will also soon be consulting with my state and territory counterparts. That meeting is arranged for 10 April, and so far all states and territories, with the exception of Tasmania and the Northern Territory, have indicated that they will be attending. I certainly can assure Senator McLucas and Senator Bartlett on behalf of the Democrats that I will be placing the issue of whistleblowers legislation well and truly on the agenda for some discussion, and we will see what comes out of that.

As I previously publicly announced, my key expert advisory committee has expressed general support for a range of measures. At this point I want to address briefly what seems to be emerging as the main criticism from senators opposite about the structure or the membership of that committee. The big point that is being made is that somehow that committee is not as good as it could be because advocacy groups are not represented. I want to stress very deliberately again today what I have stressed at aged care organisational conferences and in other forums that I have addressed. That is that, I respectfully suggest to all senators in this place, every member on that committee—whether they be a representative of the providers, nurses unions, doctors, pharmacists or carers—is an advocate, and I use that word very deliberately, for the welfare of the aged and the frail within our aged care facilities. Senator McLucas and other senators, when they criticise the make-up of that committee because of that perceived lack of expertise from formal representation of advocacy groups, are saying that they should be represented. But I am saying to Senator McLucas that I think they are all advocates for the aged and frail within our aged care facilities.

The question that I think can legitimately be asked—and, if it has not been asked of me, I will now ask it of myself and answer it—is: how do we get the opinion of the organised advocacy groups within the system, within the current deliberations, on the solutions or some of the measures that should come out of the process that we have undertaken? I have spoken to three of the leaders of the representative groups. I have not spoken extensively to them but I have invited them to provide me with their extensive and formal contributions, and they have done that. There are many pages in combination, and they make many very good points, in my view. A lot of the points that they make are in fact the points that are overwhelmingly coming through not only from the community generally but also from the advisory committee that I convened a few weeks ago.

There are some suggested refinements, some of which I think would be quite useful. At this stage that is only my personal opinion; I still have not gone to cabinet. But some of them will be in the mix and will be considered. I can assure the Senate that over the next three weeks I will be travelling to the cities where these advocacy groups are based and I will personally be making time to meet with them for an hour or so, which will enable them to also provide me with more direct input. I do stress that I personally have received, at my invitation after speaking with the chief advocates, comprehensive formal representations, the content of which is generally very good and is being considered.

I hope that people accept that and do not try to somehow not besmirch but water down the quality and the good reputation of the committee that advises the minister. I am not suggesting that any individual has been attacked as being incompetent or not worthy of being a representative of a particular part of the aged care sector. But I do not want the suggestion that, because there is no formal representative on the committee for the three or four advocacy groups that take an interest in this area of aged care policy, somehow the members of the committee are not advocates, individually or as a whole, for the interests of residents within our aged care facilities or somehow the committee is not as high quality as it could be.

As I have previously and publicly announced, the key expert advisory committee that I have just been referring to has expressed general support for a range of measures. The measures under active consideration include a uniform system of police checks for workers in the aged care industry, an increase in unannounced spot checks for aged care facilities, a review of the current complaints resolution scheme, and enhanced training for all aged care staff in relation to knowledge and awareness of abuse of the elderly and how to deal with complaints. I do not intend to deal in a piecemeal fashion with the important areas of reform that this debate is prompting us to consider. I intend to be as consultative as I have been. I understand the urgency that exists in the minds of the general community, senators opposite, the media and a whole lot of groups in the community. I will be acting expeditiously and the Senate has that assurance from me.

In terms of the amendment, we will not be accepting it. I have previously had discussions along these lines with Senator Allison. She withdrew a similar amendment a little while back for reasons which I thought she understood. I hope that my additional explanation will be of assistance to the Senate and particularly to the Democrats.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

The Democrats amendment is based on interesting precedents. They include a reference to section 16 of the Public Service Act, which is the weakest public service whistleblowing provision of all in our nine governments. Nevertheless, it does exist and it is better than nothing. The precedents within the amendment draw on the very good initiative of the Treasurer in introducing whistleblower provisions into the Corporations Law—the first time in Australia’s history that whistleblowing provisions have been introduced for the private sector. The subsequent extension of those provisions to the Workplace Relations Act is also reflected in this amendment. So this amendment actually repeats the government’s words in three acts and which are slightly adjusted for this act.

The government is rejecting not just this amendment but, of course, its own concepts which have been established elsewhere. That is unfortunate. The reason for the Democrats amendment is to show up the government for being resistant to full disclosure. We would design a much stronger whistleblowing regime. Members of the Senate would be aware of my extensive private senator’s bill on public disclosures. Nevertheless, we support there being some provision for whistleblowing.

One of the things that have motivated us is that there is an immense institutionalised pressure on employees to keep quiet and not notify circumstances which they are concerned about. I recognise and acknowledge what the minister is saying and the government’s attempts to much improve the environment for disclosure. It is not as bad as it was, with the institutions in which children were put in the last century, when over 500,000 children were in institutions and the staff of those institutions did not disclose the mental, physical, emotional and sexual abuse of those children, which was widespread. Indeed, when children escaped and told the police or were sent to hospital and told doctors and nurses their stories, they were just ignored and sent back to the institutions for another round of sexual or physical abuse by the people who ran those institutions. The modern environment is not quite as bad as that, but you still have to provide the mechanisms and motivations for whistleblowing.

When the government rejects its very own legislative words, which it has established in other pieces of legislation, what I read is not a willingness to maximise disclosure but a resistance to ensure that proper and full disclosure occurs. So I am disappointed that the government has rejected this amendment. I will be urging my colleagues and the Labor opposition to keep pushing at the issue of whistleblowing in this sector, where people are vulnerable, disadvantaged and at risk, and where the nature of their age and circumstances means that they need maximum protection from the staff and authorities. With his obvious keenness to make this portfolio work under his tutelage, I do hope that the minister returns to this issue and in fact does provide for proper whistleblowing provisions within the aged care sector.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

I again wish to acknowledge the concerns expressed by senators, including Senator Murray, which have led to their putting forward and supporting this amendment which seeks to implement whistleblower protection. They are concerns that have come to my knowledge in several situations and about which I have spoken publicly. May I say to Senator Murray in brief response to his words of a minute or so ago that I have in turn outlined the government concerns about the amendment that is before us. That is the technical advice that I have received, Senator Murray, and mainly for that reason we will not be supporting the amendment. But, on a more positive note for the Democrats and the Labor senators opposite, I reiterate the government’s intention to quickly and seriously address the concerns that have led to this amendment being put forward and I reiterate my very strong undertaking there.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

Since the minister says he is acting on advice, perhaps he could inform us whether those advising him were even aware that these are in fact government legislative words coming from government legislation.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

I will again say to Senator Murray that I do accept that the words are based on precedents in other legislation. However, Senator Murray with his great experience in this place would accept, I think, that it is not wise to pick up sections from one regulatory framework and seek to insert them into another quite different legislative scheme. The Aged Care Act is not, I would suggest with respect, analogous to the legislation from which the sections are drawn. Again, while I appreciate that the amendment draws on precedent, I still consider the amendment to be poorly adapted to the Aged Care Act for the reasons which I outlined. Again I note my concerns with the proposed amendment and the technical problems in the context of the Aged Care Act. However, I reiterate that we will be looking at this issue further in consultation with stakeholders and I believe that this will ensure that not just any precedent is used but the right solution is found—and again I am more than happy to make that very strong commitment.

Question negatived.

Bills agreed to.

Bills reported without amendment; report adopted.