Whistleblowing: An enabler of robust governance in aged care

It’s well known that the new Aged Care Act 2024 (Cth) introduces new whistleblower requirements for providers. While the legislation sets out penalties for non-compliance, the real driver for investment in whistleblowing frameworks is not the threat of penalty, nor even the scrutiny of the Aged Care Quality and Safety Commission.  Instead, whistleblowing is best understood as a critical enabler of robust governance.

Beyond Compliance: Whistleblowing as a Governance Tool

It’s tempting to treat whistleblower obligations as a checklist: draft a policy, distribute it, provide training, keep things confidential, investigate, and send out reminders. But this approach misses the point. Whistleblowing, when properly embedded, is a governance mechanism that empowers aged care providers to:

• Surface issues early: giving boards and executives visibility of risks before they escalate.
  
• Drive continuous improvement: using disclosures as a source of insight for systemic change, not just incident response.
  
• Demonstrate governance maturity: the ACQSC and other stakeholders will increasingly use your whistleblower regime as a yardstick for board engagement, transparency and organisational culture.

The Complexity: Integration is Key

The complexity of whistleblowing in aged care arises from its intersection with other governance and compliance systems:

• Multiple legal frameworks: Disclosures may be protected under the Aged Care Act, the Corporations Act, or both. There are also whistleblowing provisions under the NDIS Act (if it applies) and various state based regimes.  Policies must clearly guide staff, contractors and aged care workers (more on that below) through these distinctions.
  
• System integration: Whistleblower disclosures will often overlap with incident management, open disclosure requirements, mandatory reporting requirements, complaints and feedback. Governance frameworks must ensure these systems are connected and leveraged for a response (at both individual and systemic levels) whilst whistleblowing rights are protected.
  
• Non-employee workers: The regime extends to aged care workers.  As aged care providers now know – not all aged care workers are employees and not all employees are aged care workers.  Governance must account for these diverse relationships and risks.  The same applies in relation to contractors (including associated providers).

Board and Leadership Responsibilities

A mature whistleblower regime is board-led and governance-driven. This means:

• Regular board reporting: De-identified whistleblower data should be reviewed at board level and used to inform strategy and risk management.
  
• Continuous review: Policies and processes must be regularly updated in response to feedback, legal changes and lessons learned.
  
• Cultural leadership: Boards and executives must foster a culture where speaking up is safe, valued, and acted upon.

Conclusion

Whistleblowing is a strategic asset for robust governance. When treated as such, it enables aged care providers to identify risks, improve systems, and build a culture of transparency and accountability. The organisations that embrace this complexity and invest in governance will be best placed to meet the expectations of regulators (eg. ASIC and ACQSC), consumers and the community.

For a confidential conversation about the how your whistleblower policy can be improved or to access a range of template documents developed by Lavan specifically for aged care providers under the new Aged Care Act contact Amber Crosthwaite on 0400 143 677 or amber.crosthwaite@lavan.com.au.

Disclaimer

The information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.