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29 Mar 2022
Senator Gerard Rennick and Tony Nikolic have written to us about our Public Interest Disclosure (Whistleblower) Policy. We are sharing our response to clarify the facts and our position.
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21 March 2022
Mr Tony Nikolic and Senator Gerard Rennick
Via Ahpra Whistleblower Portal
Dear Mr Nikolic and Senator Rennick
I refer to the letter of 2 March 2022 on the letterhead of Ashley, Francina, Leonard and Associates signed by Mr Nikolic and Senator Rennick.
I write to you as an Ahpra Public Interest Disclosure Officer in response to that letter and your concerns about Ahpra’s Public Interest (Whistleblower) Disclosure Policy (Whistleblower Policy).
You have raised your concerns through the Ahpra Whistleblower portal and accordingly, I have assessed the information contained in your letter in accordance with the Whistleblower Policy. I have determined that the information disclosed does not meet the definition of a public interest disclosure as it does not tend to show improper conduct.
As a result, the issues raised in your letter will not be investigated as a public interest disclosure.
Despite the information provided in your letter not constituting a public interest disclosure, I have addressed some of your specific concerns below.
Ahpra and the National Boards perform functions in each Australian State and Territory and each of those States and Territories have public interest disclosure legislation in place. Ahpra and the National Boards are committed to complying with applicable public interest disclosure legislation in each State and Territory.
Ahpra and the National Boards do not determine on a case by case basis whether to comply with public interest disclosure legislation in a particular State or Territory. The public interest disclosure legislation varies between each State and Territory and so the entities to which each piece of legislation applies also varies – in some States and Territories the legislation applies to Ahpra and the National Boards and those bodies therefore comply with the legislation.
In other States and Territories, the legislation excludes Ahpra and the National Boards. While Ahpra and the National Boards are therefore not required to comply with that public interest disclosure legislation, the Whistleblower Policy ensures that those bodies comply with the general concepts of the legislation.
You state in your letter that you believe the Part 9.4AAA whistleblower provisions of the Corporations Act 2001 (Act) apply to Ahpra.
The whistleblower provisions set out in Part 9.4AAA of the Act apply to regulated entities. Regulated entities are defined in section 1317AAB of the Act.
While Ahpra is a public entity, it is not a company or other entity defined as a regulated entity pursuant to section 1317AAB of the Act. Accordingly, the Part 9.4AAA whistleblower provisions of the Act do not apply.
You have also raised concerns about Ahpra and the National Boards’ position statement in relation to registered health practitioners and students and COVID-19 vaccination published 9 March 2021 (Position Statement)
The Position Statement does not preclude health practitioners from expressing scientifically backed health and safety concerns or their conscientious objections. The Position Statement encourages health practitioners to use their professional judgement and the best available evidence when providing information about health issues such as COVID-19 and vaccination.
Relevantly, the Position Statement states: “National Boards expect all health practitioners to use their professional judgement and the best available evidence in practice. This includes when providing information to the public about public health issues such as COVID19 and vaccination… Any promotion of anti-vaccination statements or health advice which contradicts the best available scientific evidence or seeks to actively undermine the national immunization campaign (including via social media) is not supported by National Boards and may be in breach of the codes of conduct and subject to investigation and possible regulatory action.” Further, in relation to conscientious objection the Position Statement provides: “… a practitioner’s personal beliefs may form the basis of a conscientious objection to particular treatments.”
Accordingly, the Position Statement does not prohibit, restrict or unduly influence health practitioners from making any statements in relation to concerns regarding the safety or efficacy of COVID-19 vaccinations. It simply requires that those statements be based in science and rely upon the best available evidence.
Review of the Whistleblower Policy
You have requested that the Whistleblower Policy be revoked, and a new policy drafted in light of the concerns raised in your letter.
Ahpra is committed to maintaining contemporary, legally effective policies and procedures. Accordingly, we regularly review our policies and procedures to ensure they are compliant with the law and best practice.
The Whistleblower Policy is subject to review and revision on a regular basis and I am satisfied that it is compliant with relevant laws.
As you will see from the Whistleblower Policy, Ahpra makes all reasonable efforts to protect the confidentiality of information relating to a public interest disclosure. Generally, that includes not publishing information received in a public interest disclosure or any response to such a disclosure.
In this case however, I note that Senator Rennick has already published the letter which was submitted through Ahpra’s Whistleblower Portal. Noting that Senator Rennick has therefore waived confidentiality and that the letter does not in any event amount to a public interest disclosure, Ahpra proposes to re-publish your letter and Ahpra’s response to it.
Should you have any objection to this course, please advise me of the basis of your objection prior to close of business on 25 March 2022.
Yours sincerely,
Dr Jamie Orchard
General Counsel
Letter from Tony Nikolic and Gerard Rennick