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This is a Bill, not an Act. For current law, see the Acts databases.
2013-2014-2015
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Aged Care Amendment (Independent
Complaints Arrangements) Bill 2015
No. , 2015
(Social Services)
A Bill for an Act to amend the Aged Care Act 1997,
and for related purposes
No. ,
2015
Aged Care Amendment (Independent Complaints Arrangements) Bill
2015
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments
3
Part 1--Amendments
3
Aged Care Act 1997
3
Australian Aged Care Quality Agency Act 2013
14
Part 2--Transitional provisions
15
No. ,
2015
Aged Care Amendment (Independent Complaints Arrangements) Bill
2015
1
A Bill for an Act to amend the Aged Care Act 1997,
1
and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Aged Care Amendment (Independent
5
Complaints Arrangements) Act 2015.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Aged Care Amendment (Independent Complaints Arrangements) Bill
2015
No. , 2015
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
A single day to be fixed by Proclamation.
However, if the provisions do not commence
within the period of 6 months beginning on
the day this Act receives the Royal Assent,
they commence on the day after the end of
that period.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Amendments Schedule 1
Amendments Part 1
No. ,
2015
Aged Care Amendment (Independent Complaints Arrangements) Bill
2015
3
Schedule 1
--Amendments
1
Part 1
--Amendments
2
Aged Care Act 1997
3
1 Paragraph 56-4(1)(d)
4
Repeal the paragraph, substitute:
5
(d) allow
*
authorised complaints officers to have such access to
6
the service as is specified in the User Rights Principles, for
7
the purpose of those officers investigating and assisting in the
8
resolution of complaints; and
9
2 After paragraph 63-1(1)(b)
10
Insert:
11
(ba) to cooperate with any person who is exercising powers under
12
Division 94B in relation to the service;
13
3 Section 84-1
14
Omit:
15
(e)
the management and resolution of complaints and other
16
concerns about the provision of aged care services (see
17
Part 6.4A);
18
substitute:
19
(e)
the management and resolution of complaints and other
20
concerns about the provision of aged care services, and
21
powers of authorised complaints officers (see
22
Part 6.4A);
23
4 Section 84-1
24
Omit:
25
(g)
the Aged Care Commissioner, whose functions include
26
examining certain matters relating to the management
27
Schedule 1 Amendments
Part 1 Amendments
4
Aged Care Amendment (Independent Complaints Arrangements) Bill
2015
No. , 2015
and resolution of complaints and other concerns about
1
the provision of aged care services (see Part 6.6);
2
substitute:
3
(g)
the Aged Care Complaints Commissioner, whose
4
functions include those relating to complaints and other
5
concerns conferred on the Commissioner by the
6
Complaints Principles (see Part 6.6);
7
5 Section 86-3
8
Omit "The Secretary", substitute "(1) The Secretary".
9
6 At the end of section 86-3
10
Add:
11
(2) The
*
Aged Care Complaints Commissioner may disclose
12
*
protected information:
13
(a) if the Commissioner certifies, in writing, that it is necessary
14
in the public interest to do so in a particular case--to such
15
people and for such purposes as the Commissioner
16
determines; and
17
(b) to a person who is, in the opinion of the Commissioner,
18
expressly or impliedly authorised by the person to whom the
19
information relates to obtain it; and
20
(c) if the Commissioner believes, on reasonable grounds, that
21
disclosure is necessary to prevent or lessen a serious risk to
22
the safety, health or well-being of a care recipient--to such
23
people as the Commissioner determines, for the purpose of
24
preventing or lessening the risk; and
25
(d) if the Commissioner believes, on reasonable grounds, that:
26
(i) a person's conduct breaches the standards of
27
professional conduct of a profession of which the person
28
is a member; and
29
(ii) the person should be reported to a body responsible for
30
standards of conduct in the profession;
31
to that body, for the purposes of maintaining standards of
32
professional conduct in the profession; and
33
Amendments Schedule 1
Amendments Part 1
No. ,
2015
Aged Care Amendment (Independent Complaints Arrangements) Bill
2015
5
(e) if the Commissioner believes, on reasonable grounds, that
1
disclosure of the information is reasonably necessary for:
2
(i) enforcement of the criminal law; or
3
(ii) enforcement of a law imposing a pecuniary penalty; or
4
(iii) protection of the public revenue;
5
to an agency whose functions include that enforcement or
6
protection, for the purposes of that enforcement or protection;
7
and
8
(f) to a person of a kind specified in the Information Principles,
9
for the purposes specified in the Information Principles in
10
relation to people of that kind.
11
(3) The following are not legislative instruments:
12
(a) a certification under paragraph (1)(a) or (2)(a);
13
(b) a determination under paragraph (1)(a) or (e) or (2)(a) or (c)
14
(if the determination is in writing).
15
7 Section 86-5 (heading)
16
Repeal the heading, substitute:
17
86-5 Limits on use of information disclosed under section 86-3 or
18
86-4
19
8 Part 6.4A (heading)
20
Repeal the heading, substitute:
21
Part 6.4A--Complaints and authorised complaints
22
officers
23
9 Before Division 94A
24
Insert:
25
Schedule 1 Amendments
Part 1 Amendments
6
Aged Care Amendment (Independent Complaints Arrangements) Bill
2015
No. , 2015
Division 94AA--Introduction
1
94AA-1 What this Part is about
2
The Complaints Principles may provide a scheme for the
3
management and resolution of complaints and other concerns about
4
the provision of aged care services.
5
The Aged Care Complaints Commissioner may appoint authorised
6
complaints officers. Those officers may enter premises with
7
consent and exercise certain powers.
8
Table of Divisions
9
94AA
Introduction
10
94A
Complaints Principles
11
94B
Authorised complaints officers
12
10 After paragraph 94A-1(2)(f)
13
Insert:
14
; (g) authorising the provision of information relating to
15
complaints and concerns to the Secretary or to the
*
CEO of
16
the Quality Agency.
17
11 At the end of Part 6.4A
18
Add:
19
Division 94B--Authorised complaints officers
20
94B-1 Authorised complaints officers
21
Appointment of authorised complaints officers
22
(1) An authorised complaints officer is an officer of the Department
23
appointed by the
*
Aged Care Complaints Commissioner, by
24
written instrument, to be an authorised complaints officer for the
25
purposes of this Division.
26
Amendments Schedule 1
Amendments Part 1
No. ,
2015
Aged Care Amendment (Independent Complaints Arrangements) Bill
2015
7
Identity cards to be issued
1
(2) The
*
Aged Care Complaints Commissioner must cause an identity
2
card to be issued to each person appointed as an
*
authorised
3
complaints officer under subsection (1).
4
(3) The identity card must specify the name and appointment of the
5
person.
6
(4) A recent photograph of the person must be attached to the card.
7
Return of identity cards
8
(5) A person appointed as an
*
authorised complaints officer under
9
subsection (1) must, upon ceasing to be an authorised complaints
10
officer, return to the
*
Aged Care Complaints Commissioner the
11
identity card issued to the person under subsection (2).
12
Penalty: 1 penalty unit.
13
94B-2 Meaning of complaints powers
14
(1) The following powers are complaints powers:
15
(a) any of the following in relation to premises:
16
(i) to search the premises;
17
(ii) to take photographs (including a video recording), or
18
make sketches, of the premises or any substance or
19
thing at the premises;
20
(iii) to inspect, examine and take samples of, any substance
21
or thing on or in the premises;
22
(iv) to inspect any document or record kept at the premises;
23
(v) to take extracts from, or make copies of, any document
24
or record at the premises;
25
(vi) to take onto the premises any equipment or material
26
reasonably necessary for the purpose of exercising a
27
power under subparagraph (i), (ii), (iii), (iv) or (v);
28
(b) in relation to a thing that may afford evidence of the
29
commission of an offence against this Act, the powers in
30
subsection (2);
31
(c) in relation to documents or records at premises, the powers in
32
subsections (3) and (4).
33
Schedule 1 Amendments
Part 1 Amendments
8
Aged Care Amendment (Independent Complaints Arrangements) Bill
2015
No. , 2015
(2) If an
*
authorised complaints officer, during a search of premises,
1
believes on reasonable grounds that there is at the premises a thing
2
that may afford evidence of the commission of an offence against
3
this Act, the complaints powers include:
4
(a) informing the Secretary or an
*
authorised officer of that
5
belief, and the grounds for that belief; and
6
(b) securing the thing pending the obtaining of a warrant to seize
7
it.
8
Note:
For the granting of warrants authorising seizure, see sections 92-3 and
9
92-4.
10
(3) The complaints powers include operating equipment at the
11
premises to see whether:
12
(a) the equipment; or
13
(b) a disk, tape or other storage device that:
14
(i) is at the premises; and
15
(ii) can be used with or is associated with the equipment;
16
contains information that is relevant to assessing, in respect of an
17
approved provider:
18
(c) whether responsibilities under Chapter 4 have been complied
19
with; or
20
(d) whether records have been kept as required under Part 6.3.
21
(4) If an
*
authorised complaints officer, after operating equipment at
22
the premises, finds that the equipment, or a disk, tape or other
23
storage device at the premises, contains information of that kind,
24
the complaints powers include:
25
(a) operating facilities at the premises to put the information in
26
documentary form and copying the documents so produced;
27
or
28
(b) if the information can be transferred to a disk, tape or other
29
storage device that:
30
(i) is brought to the premises; or
31
(ii) is at the premises and the use of which for the purpose
32
has been agreed in writing by the occupier of the
33
premises;
34
operating the equipment or other facilities to copy the
35
information to the storage device and removing the storage
36
device from the premises.
37
Amendments Schedule 1
Amendments Part 1
No. ,
2015
Aged Care Amendment (Independent Complaints Arrangements) Bill
2015
9
94B-3 Power to enter premises with occupier's consent to exercise
1
complaints powers
2
(1) Subject to subsections (2) to (5), an
*
authorised complaints officer
3
may:
4
(a) enter:
5
(i) the premises of an
*
aged
care service at any time of the
6
day or night; or
7
(ii) any other premises (including residential premises) at
8
any time between 9 am and 5 pm on a business day; and
9
(b) exercise
*
complaints powers.
10
(2) An
*
authorised complaints officer must not act as provided for
11
under subsection (1) unless the officer does so:
12
(a) in relation to a matter that is connected with the functions of
13
the
*
Aged Care Complaints Commissioner; and
14
(b) to the extent reasonably necessary for the purpose of:
15
(i) assessing whether an approved provider is complying
16
with its responsibilities under Chapter 4; or
17
(ii) assessing whether records have been kept as required
18
under Part 6.3.
19
(3) An
*
authorised complaints officer must not enter premises under
20
subsection (1) unless the occupier of the premises has consented to
21
the entry. An occupier of premises may withdraw consent at any
22
time. The officer must leave the premises if the occupier asks the
23
authorised officer to do so.
24
(4) Before obtaining the consent of an occupier, the
*
authorised
25
complaints officer must inform the occupier that he or she may
26
refuse to give consent, or withdraw that consent at any time. An
27
entry by an authorised complaints officer by virtue of the consent
28
of an occupier is not lawful unless the person voluntarily consented
29
to the entry.
30
Note:
Approved providers have a responsibility under paragraph 63-1(1)(ba)
31
to cooperate with a person exercising powers under this Division. An
32
approved provider who:
33
(a) refuses to consent to the entry of an
*
authorised complaints
34
officer; or
35
(b) withdraws consent for an authorised complaints officer to enter
36
premises;
37
Schedule 1 Amendments
Part 1 Amendments
10
Aged Care Amendment (Independent Complaints Arrangements) Bill
2015
No. , 2015
may not be complying with that responsibility. Failure to comply with
1
a responsibility can result in a sanction being imposed under Part 4.4.
2
(5) An
*
authorised complaints officer must not enter premises under
3
subsection (1) or do a thing referred to in section 94B-2 if:
4
(a) the occupier of the premises has asked the officer to produce
5
his or her identity card for inspection by the occupier; and
6
(b) the officer fails to do so.
7
94B-4 Power to ask people to answer questions etc.
8
(1) An
*
authorised complaints officer who has entered premises under
9
section 94B-3 may ask a person at the premises:
10
(a) to answer any questions put by the officer; and
11
(b) to produce any documents or records requested by the
12
officer.
13
(2) A person is not obliged to comply with a request under
14
subsection (1).
15
Note:
Approved providers have a responsibility under paragraph 63-1(1)(ba)
16
to cooperate with a person exercising powers under this Division. An
17
approved provider who does not comply with a request under
18
subsection (1) may not be complying with that responsibility. Failure
19
to comply with a responsibility can result in a sanction being imposed
20
under Part 4.4.
21
(3) The powers of an
*
authorised complaints officer under this section
22
are to be exercised subject to the requirements of Australian
23
Privacy Principles 3 and 5.
24
94B-5 Occupier of premises to assist authorised complaints officers
25
(1) An
*
authorised complaints officer may ask the occupier of any
26
premises entered under section 94B-3 to provide reasonable
27
assistance to the officer, at any time while the officer is entitled to
28
remain on the premises, for the purpose of the exercise of the
29
officer's powers under that section.
30
(2) An occupier may refuse to provide assistance as requested under
31
subsection (1).
32
Note:
Approved providers have a responsibility under paragraph 63-1(1)(ba)
33
to cooperate with a person exercising powers under this Division. An
34
Amendments Schedule 1
Amendments Part 1
No. ,
2015
Aged Care Amendment (Independent Complaints Arrangements) Bill
2015
11
approved provider who does not assist an
*
authorised complaints
1
officer when requested under subsection (1) may not be complying
2
with that responsibility. Failure to comply with a responsibility can
3
result in a sanction being imposed under Part 4.4.
4
12 Part 6.6 (heading)
5
Repeal the heading, substitute:
6
Part 6.6--Aged Care Complaints Commissioner
7
13 Division 95A (heading)
8
Repeal the heading, substitute:
9
Division 95A--Aged Care Complaints Commissioner
10
14 Section 95A-1 (heading)
11
Repeal the heading, substitute:
12
95A-1 Aged Care Complaints Commissioner
13
15 Subsection 95A-1(1)
14
After "Care", insert "Complaints".
15
Note:
This item alters the name of an office. Section 25B of the Acts Interpretation Act 1901
16
provides that the office continues in existence under the new name so that its identity is
17
not affected.
18
16 Subsection 95A-1(2)
19
Repeal the subsection, substitute:
20
Functions of Aged Care Complaints Commissioner
21
(2) The functions of the
*
Aged Care Complaints Commissioner are as
22
follows:
23
(a) the functions relating to complaints and other concerns
24
conferred on the Commissioner by the Complaints Principles
25
(see section 94A-1);
26
(b) to educate people about, and develop resources relating to,
27
best practice in the handling of:
28
Schedule 1 Amendments
Part 1 Amendments
12
Aged Care Amendment (Independent Complaints Arrangements) Bill
2015
No. , 2015
(i) complaints that relate to responsibilities of approved
1
providers under this Act and the Principles made under
2
section 96-1; and
3
(ii) matters arising from such complaints;
4
(c) any other functions conferred on the Commissioner by the
5
Complaints Principles for the purpose of this paragraph;
6
(d) any other functions conferred on the Commissioner by this
7
Act;
8
(e) to advise the Minister, at the Minister's request, about
9
matters relating to any of paragraphs (a), (b), (c) and (d).
10
17 Before subsection 95A-1(3)
11
Insert:
12
Provision of information to Aged Care Complaints Commissioner
13
18 Subsections 95A-1(3) and (4)
14
After "Care", insert "Complaints".
15
19 At the end of section 95A-1
16
Add:
17
Provision of information by Aged Care Complaints Commissioner
18
(5) If the Secretary requests the
*
Aged Care Complaints Commissioner
19
to give the Secretary information that the Secretary requires for the
20
purposes of the Secretary's functions relating to aged care, the
21
Commissioner must, if the information is available to the
22
Commissioner, give the information to the Secretary.
23
(6) If the
*
CEO of the Quality Agency requests the
*
Aged Care
24
Complaints Commissioner to give the CEO information that the
25
CEO requires for the purposes of the CEO's functions, the
26
Commissioner must, if the information is available to the
27
Commissioner, give the information to the CEO.
28
20 Sections 95A-2, 95A-3, 95A-4, 95A-5, 95A-6, 95A-7, 95A-8,
29
95A-9 and 95A-10
30
After "Care" (wherever occurring), insert "Complaints".
31
Amendments Schedule 1
Amendments Part 1
No. ,
2015
Aged Care Amendment (Independent Complaints Arrangements) Bill
2015
13
21 Section 95A-11 (heading)
1
Repeal the heading, substitute:
2
95A-11 Delegation of Aged Care Complaints Commissioner's
3
functions
4
22 Section 95A-11
5
After "Care" (wherever occurring), insert "Complaints".
6
23 Section 95A-11A (heading)
7
Repeal the heading, substitute:
8
95A-11A Aged Care Complaints Commissioner may give report to
9
Minister at any time
10
24 Section 95A-11A
11
After "Care", insert "Complaints".
12
25 Subsection 95A-12(1)
13
After "Care" (wherever occurring), insert "Complaints".
14
26 Subsection 95A-12(2)
15
Repeal the subsection, substitute:
16
(2) The report must include the information that is required by the
17
Commissioner Principles to be included in the report.
18
27 Subsection 96-2(2) (heading)
19
Repeal the heading, substitute:
20
Aged Care Complaints Commissioner
21
28 Subsection 96-2(2)
22
After "Care", insert "Complaints".
23
29 Clause 1 of Schedule 1 (definition of Aged Care
24
Commissioner)
25
Repeal the definition.
26
Schedule 1 Amendments
Part 1 Amendments
14
Aged Care Amendment (Independent Complaints Arrangements) Bill
2015
No. , 2015
30 Clause 1 of Schedule 1
1
Insert:
2
Aged Care Complaints Commissioner means the Aged Care
3
Complaints Commissioner holding office under Part 6.6.
4
authorised complaints officer has the meaning given by
5
subsection 94B-1(1).
6
complaints powers has the meaning given by section 94B-2.
7
Australian Aged Care Quality Agency Act 2013
8
31 Section 3 (definition of Aged Care Commissioner)
9
Repeal the definition.
10
32 Section 3
11
Insert:
12
Aged Care Complaints Commissioner means the Aged Care
13
Complaints Commissioner holding office under Part 6.6 of the
14
Aged Care Act 1997.
15
33 Paragraph 49(h)
16
After "Care" (wherever occurring), insert "Complaints".
17
Amendments Schedule 1
Transitional provisions Part 2
No. ,
2015
Aged Care Amendment (Independent Complaints Arrangements) Bill
2015
15
Part 2
--Transitional provisions
1
34 Complaints Principles may deal with transitional matters
2
In addition to the matters covered by section 96-1 of the Aged Care Act
3
1997, Complaints Principles made by the Minister under that section
4
may deal with matters of a transitional, application or saving nature
5
relating to the amendments made by this Act.
6