Australian parliament recently passed reforms to protections for whistleblowers in the NDIS Act, but some say more is needed. Photograph: Ababsolutum/Getty ImagesView image in fullscreenAustralian parliament recently passed reforms to protections for whistleblowers in the NDIS Act, but some say more is needed. Photograph: Ababsolutum/Getty ImagesSusan was forced out of a disability support job after speaking out. Are NDIS whistleblower laws still too weak? Human rights lawyers say NDIS workers and their clients remain at risk despite newly bolstered whistleblower protections
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When Susan* came across wrongdoing at her disability support provider, she faced a choice.
Say nothing, and allow her highly vulnerable clients to be put at serious risk.
Or blow the whistle and risk a career that she loved.
“I guess my overwhelming philosophy was if I do the right thing, it will all work out in the end,” she said.
Read moreThe disability support provider Susan worked for had issued a directive that she immediately cease key services that were required to meet participants’ complex communication and disability support needs.
The directive was issued as part of an effort by the provider to cut costs to meet impossible margins under the national disability insurance scheme funding.
The danger of such an approach was obvious. Many of her clients had severe psycho-social disability and did not use technology.
Susan said the changes, by putting her clients at risk of harm, were a breach of the NDIS code of conduct and quality and safeguard requirements.
“You may be the only person that goes to their house and knocks on their door and checks on them,” she said. “That then puts those people at risk of perhaps being found deceased or significant self-harm. Or in the case of people who can become a harm to others when they’re unwell, it might put other people in the community at risk if those early warning signs aren’t picked up.”
Susan decided to speak out, making complaints internally.
But any faith in the whistleblower protections afforded to those working for NDIS providers was short-lived.
She was discouraged from raising the issue, then scapegoated, and eventually forced out.
Worst of all, the laws that governed the NDIS made it impossible for her to go to the one body which might have been able to act: the NDIS Quality and Safeguards Commission.
For the past decade of the NDIS, it has been a common story.
Until parliament belatedly passed reforms this month, the protections for whistleblowers contained in the NDIS Act have remained outdated and weak.
Experts say that the weaknesses of the whistleblower protections have allowed misconduct, fraud and wrongdoing to flourish in the 12 years since it began.
“The other people that were concerned about what was happening just resigned,” Susan said. “They just resigned, they walked away, they went into another role in other organisations. Maybe they’re a little bit smarter than me.”
The system that has existed for a decade gave no protection to former workers of disability providers who wanted to blow the whistle, for example. It also robbed them of anonymity by requiring that a person “inform the person to whom the disclosure is made of the discloser’s name before making the disclosure”.
It also imposed a rule that, to be legally protected, whistleblowers must have been acting in “good faith” when blowing the whistle.
The “good faith” test meant that a subjective assessment of the whistleblower’s motives could rob them of any protection, an outdated approach at odds with all other public sector whistleblower regimes.
The Human Rights Law Centre whistleblower project, a service designed to advise and support whistleblowers, said whistleblowers in the NDIS were too often left unprotected by an outdated and weak regime of protections, that has lagged well behind those available to others.
Read moreThe federal government this month agreed to changes to improve protections available to whistleblowers in the scheme, including extending legal protections to former employees of disability providers, allowing anonymous disclosures and repealing the “good faith” requirement.
Susan said it was like “closing the barn door after the horse has bolted”.
The Human Rights Law Centre lawyer Madeleine Howle said the whistleblower protections, while improved, were still inadequate.
“This must be the start of the journey towards more comprehensive reform,” she said.
“Even with these reforms, NDIS protections remain piecemeal and out of date. That silences the voices of workers, participants and advocates.
“We urge the Albanese government to undertake comprehensive whistleblowing reform and establish a Whistleblower Protection Authority to ensure transparency and accountability in Australia.”
A spokesperson for the NDIS minister, Jenny McAllister, said the recent reforms delivered “fundamental protections” for whistleblowers to safely report concerns about unsafe or unlawful practices.
“People involved in the NDIS who see something illegal or unsafe will now have the protection they need to say something,” the spokesperson said.
“These practices often only come to light because someone comes forward at great personal or financial risk.”
