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2010 - 2011 - 2012 - 2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AUSTRALIAN AGED CARE QUALITY AGENCY
(TRANSITIONAL PROVISIONS) BILL 2013
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Mental Health and Ageing,
the Hon Mark Butler MP)
AUSTRALIAN AGED CARE QUALITY AGENCY (TRANSITIONAL
PROVISIONS) BILL 2013
OUTLINE
The purpose of the Australian Aged Care Quality Agency (Transitional Provisions)
Bill 2013 (the Bill) is to transfer the assets and liabilities of the Aged Care Standards
and Accreditation Agency Limited (ACSAA Limited) to the Commonwealth while
providing for the seamless continuation of the operations currently conducted by
ACSAA Limited.
ACSAA Limited is a public company limited by guarantee and subject to the
Commonwealth Authorities and Companies Act 1997. The Commonwealth is the sole
member of ACSAA Limited. It is proposed that a new prescribed agency under the
Financial Management and Accountability Act 1997, the Australian Aged Care
Quality Agency (the Quality Agency), will be established by the Australian Aged
Care Quality Agency Act 2013 (once enacted) and will replace ACSAA Limited from
1 January 2014.
The new body will be the sole agency that providers of aged care, approved under the
Aged Care Act 1997, will deal with in relation to the quality assurance of the aged
care services that they deliver, whether those services are delivered through a
residential aged care service or in the person's own home.
The Quality Agency will commence functions relating to residential aged care
services from 1 January 2014, and will commence functions relating to home care
services from 1 July 2014. Prior to 1 July 2014, functions relating to home care
services will continue to be performed by the Department of Health and Ageing.
The Bill:
transfers the assets and liabilities of ACSAA Limited to the Commonwealth at the
same time as the Australian Aged Care Quality Agency Act 2013 commences on
1 January 2014;
provides that any reference to ACSAA Limited in an instrument that relates to
such assets or liabilities that is in force immediately before the commencement
day, has effect at and after the commencement day as if it were a reference to the
Commonwealth;
substitutes the Commonwealth for ACSAA Limited as a party to any legal
proceedings that are pending immediately before the commencement day;
provides for the transfer of custody of records or documents of ACSAA Limited
to the Commonwealth;
deems applications made to ACSAA Limited that have not been decided before
the commencement day to be applications made to the Quality Agency;
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provides for the transfer of office holders and staff from ACSAA Limited to the
Commonwealth; and
makes general provision for other transitional matters.
Financial Impact Statement
The Bill gives effects to parts of the Living Longer Living Better package of reforms
under which the Government will provide $3.7 billion over 5 years from 2012-13.
The Quality Agency will be partially budget funded and partially funded through the
Quality Agency charging fees for services. This is consistent with the current funding
arrangements for ACSAA Limited.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
Australian Aged Care Quality Agency (Transitional Provisions) Bill 2013
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
The Australian Aged Care Quality Agency (Transitional Provisions) Bill 2013 sets out
the arrangements for the transfer of assets and liabilities from the Aged Care
Standards and Accreditation Agency Limited to the Commonwealth. The functions of
the current body will be carried out by the Australian Aged Care Quality Agency to be
established on 1 January 2014 by the Australian Aged Care Quality Agency Act 2013
(once enacted).
Human Rights Implications
This Bill engages the human right to protection against arbitrary interference with
privacy as set out in Article 17 of the International Covenant on Civil and Political
Rights.
Item 5 of Schedule 1 to the Bill provides for the transfer of custody of certain records
or documents of ACSAA Limited to the Commonwealth. Such records or documents,
including personnel records, may contain personal information about individuals that
was collected by ACSAA Limited for the purpose of carrying out its functions as the
accreditation body under the Aged Care Act 1997.
Item 5 of Schedule 1 limits the range of records or documents that are to be
transferred to those records or documents that relate to an asset or liability of ACSAA
Limited that, by force of item 2 of Schedule 1 (when enacted), becomes an asset or
liability of the Commonwealth. This ensures that only such information, including
personal information, as is necessary to enable the Commonwealth to take over the
functions of ACSAA Limited is required to be transferred.
Any personal information that is transferred from ACSAA Limited to the
Commonwealth will continue to be protected by the secrecy provisions in Division 86
of the Aged Care Act 1997 and will also be protected by the equivalent provisions in
Part 7 of the Australian Aged Care Quality Agency Act 2013 (once enacted). These
provisions include a penalty of imprisonment for two years for the offence of making
a record of, disclosing or otherwise using protected information except for permitted
uses.
Conclusion
This Bill is compatible with human rights because, to the extent that it limits the
human right to protection against arbitrary interference with privacy, those limitations
are reasonable, necessary and proportionate.
The Hon Mark Butler MP, Minister for Mental Health and Ageing
AUSTRALIAN AGED CARE QUALITY AGENCY (TRANSITIONAL
PROVISIONS) BILL 2013
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NOTES ON CLAUSES
Clause 1 - Short title
This is a formal provision which provides that the Bill, once enacted, may be referred
to as the Australian Aged Care Quality Agency (Transitional Provisions) Act 2013.
Clause 2 - Commencement
This clause provides that the Act commences at the same time as the Australian Aged
Care Quality Agency Bill 2013, which is expected to be 1 January 2014.
Clause 3 - Schedule(s)
This clause provides that every item in a Schedule to the Act (once enacted) has effect
according to its terms.
Schedule 1 - Transitional provisions
Part 1 - Preliminary
Item 1
This item sets out definitions of terms that are relied on in other provisions throughout
the Bill. Some important definitions that warrant explanation include the following:
asset includes intangible assets such as licences and intellectual property as well
as tangible assets such as motor vehicles and office equipment; and
liability includes duties and obligations, including those duties and obligations
relating to the performance of the accreditation function and the registration
function, as well as staff entitlements and debts.
Part 2 - Transfer of assets and liabilities
Division 1 - Transfer from ACSAA Limited to the Commonwealth
Item 2
This item provides that on 1 January 2014, the assets and liabilities of ACSAA
Limited cease to be assets and liabilities of ACSAA Limited and become assets and
liabilities of the Commonwealth without the need for any conveyance, transfer or
assignment.
Division 2 - Instruments, legal proceedings and records
Item 3
This item applies to any instruments that refer to ACSAA Limited and are in force
immediately before 1 January 2014.
If the instrument relates to an asset or liability that is transferred to the
Commonwealth under Item 2, then the instrument should be taken to refer to the
Commonwealth from 1 January 2014. The purpose of this provision is to ensure that
existing instruments such as contracts continue to operate as intended after the
transition.
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Subitem 3(3) puts it beyond doubt that instruments to which this item applies can still
be varied or terminated after 1 January 2014.
Item 4
This item provides that if ACSAA Limited is involved in any legal proceedings
immediately before 1 January 2014, then the Commonwealth will take ACSAA
Limited's place from 1 January 2014.
This provision is designed to ensure that any existing litigation is not affected by the
transition from ACSAA Limited to the Quality Agency.
Item 5
This item deals with the transfer of certain records or documents from ACSAA
Limited to the Commonwealth. Records or documents that relate to an asset or
liability will transfer to the Commonwealth on 1 January 2014 along with that asset or
liability.
Division 3 - General provisions
Item 6
This item enables any land that transfers to the Commonwealth as a result of the
operation of item 2 to be registered.
The procedure is as follows:
the Minister signs a certificate identifying the land and stating that it has become
vested in the Commonwealth under Part 2 of Schedule 1;
the certificate is lodged with a land registration official (as defined in item 1 of
Schedule 1); and
the land registration official may deal with and give effect to the certificate, and
may register the matter in the usual way.
A certificate made under subitem 6(1) is not a legislative instrument. This is because
it is not legislative in character and therefore not within the meaning of section 5 of
the Legislative Instruments Act 2003. Subitem 6(3) confirms this and is included to
assist readers.
Item 7
This item provides for assets other than land which transfer to the Commonwealth as
a result of the operation of item 2 to be registered.
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The procedure is as follows:
the Minister signs a certificate identifying the asset and stating that it has become
vested in the Commonwealth under Part 2 of Schedule 1;
the certificate is lodged with an assets official (as defined in item 1 of
Schedule 1); and
the assets official may deal with and give effect to the certificate, and may
register the matter in the usual way.
A certificate under subitem 7(1) is not a legislative instrument. This is because it is
not legislative in character and therefore not within the meaning of section 5 of the
Legislative Instruments Act 2003. Subitem 7(3) confirms this and is included to assist
readers.
Item 8
This item is required to ensure that State and Territory taxes such as stamp duty do
not apply to the transfer of assets and liabilities as a result of the operation of item 2.
For example, no stamp duty will be payable on the transfer of land.
If necessary, the Minister may certify in writing that a particular transfer under the
Act is an exempt matter and therefore exempt from stamp duty and other state and
territory taxes.
A certificate under subitem 8(3) is not a legislative instrument. This is because it is
not legislative in character and therefore not within the meaning of section 5 of the
Legislative Instruments Act 2003. Subitem 8(4) confirms this and is included to assist
readers.
Item 9
This item provides that a document that appears to be a certificate made or issued
under item 6, 7 or 8 is taken to be genuine unless proven otherwise. This enables
people to rely on such documents unless there is evidence to the contrary.
Division 4 - Applications and requests for reconsideration
Item 10
This item makes provision for dealing with applications to ACSAA Limited that are
undecided immediately before 1 January 2014.
If an approved provider has applied to ACSAA Limited for accreditation or re-
accreditation of a residential care service and ACSAA Limited has not made a
decision before 1 January 2014, the Quality Agency will take over the process. The
approved provider will not be required to submit a new application to the Quality
Agency, as documents relating to the application will be transferred from ACSAA
Limited to the Commonwealth in accordance with item 5. The Quality Agency will
deal with the application under the new Quality Agency Principles.
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Similarly, the Quality Agency will take over any undecided request for
reconsideration of decisions specified in column two of the table in section 2.67 of the
Accreditation Grant Principles. The person will not be required to submit a new
request to the Quality Agency, as documents relating to the request will be transferred
from ACSAA Limited to the Commonwealth in accordance with item 5. The Quality
Agency will deal with the request under the new Quality Agency Principles.
Undecided applications to be registered as a quality assessor, or re-registered for a
further period, will also be dealt with as if the application had been made to the
Quality Agency on 1 January 2014. The person will not be required to submit a new
application to the Quality Agency, as documents relating to the application will be
transferred from ACSAA Limited to the Commonwealth in accordance with item 5.
If ACSAA Limited has made a decision before 1 January 2014 and a person who has
standing to request reconsideration of the decision has not yet exercised that right on
30 December 2013, provided that the request would not have been out of time on that
day, the person may request reconsideration of the decision on or after 1 January 2014
as if the decision had been made by the CEO of the Quality Agency on
1 January 2014.
The Quality Agency Principles will mirror the Accreditation Grant Principles in
respect of applications for accreditation and re-accreditation and provision for
reconsideration and review rights, including the right to apply to the Administrative
Appeals Tribunal for review of a decision following internal reconsideration.
Part 3 - Books, reports, returns etc.
Item 11
This item deals with the application of subsection 601AD(5) of the Corporations Act
2001 in relation to ACSAA Limited's books (within the meaning of that Act) after
1 January 2014. Subsection 601AD(5) provides that the directors of a company
immediately before its deregistration must keep the company's books for 3 years after
the deregistration.
It is expected that ACSAA Limited will be deregistered after 1 January 2014.
This item relieves ACSAA Limited's directors of the obligation imposed by
subsection 601AD(5) and instead imposes the obligation on the Commonwealth.
Item 12
This item requires the CEO of the Quality Agency to prepare or lodge any reports,
returns or other documents that would otherwise have been prepared or lodged by
ACSAA Limited immediately before, on or after 1 January 2014. The Secretary of the
Department of Health and Ageing must provide reasonable assistance to the CEO of
the Quality Agency for the purpose of preparing the report, return or document.
Part 4 - Office holders and staff
Item 13
This item allows the Minister, before the commencement day, to terminate the
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appointment of any Director of ACSAA Limited and to terminate any agreement or
other instrument relating to that appointment. This item also allows the Minister to
make provision in relation to the termination of an appointment, or in relation to the
termination of an agreement or other instrument relating to that appointment.
Subitem 13(2) provides that an instrument made under subitem 13(1) takes effect
immediately before 1 January 2014.
An instrument made under subitem 13(1) is not a legislative instrument. This is
because it is not legislative in character and therefore not within the meaning of
section 5 of the Legislative Instruments Act 2003. Subitem 13(3) confirms this and is
included to assist readers.
Item 14
This item provides that nothing in Schedule 1 will cause the appointment, engagement
or employment of an ACSAA Limited officer to have effect as if it were an
appointment, engagement or employment of the person in relation to the
Commonwealth.
This item makes it clear, for example, that item 3 does not have the effect of requiring
a reference in an instrument relating to the engagement or employment of an
employee of ACSAA Limited to be read as a reference that relates to the
Commonwealth.
The note to subitem 14(1) indicates that employees of ACSAA Limited may become
engaged as Australian Public Service (APS) employees by a determination of the
Public Service Commissioner under section 72 of the Public Service Act 1999.
Section 72 of the Public Service Act 1999 provides for the Public Service
Commissioner, amongst other things, to engage persons, including non-APS
employees, as APS employees in a specified Agency. In this case, the specified
Agency would be the Quality Agency.
Subitem 14(3) provides that, to avoid doubt, if a person ceases to be an employee of
ACSAA Limited and becomes an APS employee because of a determination by the
Public Service Commissioner under section 72 of the Public Service Act 1999, the
person is not entitled to receive any payment or other benefit merely because he or she
ceased to be an employee of ACSAA Limited.
It is intended that the employment of such people will be continuous, regardless of the
fact that they move from being employees of ACSAA Limited to being APS
employees in the Quality Agency. As the employees' employment would be
continuous, payments such as redundancy payments would not be appropriate. The
continuity of the employees' employment is achieved by the operation of item 15.
Item 15
This item applies to people who are employed by ACSAA Limited immediately
before 1 January 2014 who become APS employees in the Quality Agency by virtue
of a determination made by the Public Service Commissioner under section 72 of the
Public Service Act 1999.
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Subitem 15(2) provides for an ACSAA Limited employee to carry over an entitlement
to benefits that the employee accrued while employed by ACSAA Limited. For
example, rather than having accrued annual leave paid out when their employment
with ACSAA Limited ends, this subitem means that staff can retain those entitlements
when they move to the APS and use them when required.
Subitem 15(3) has the effect that an employee's service as an APS employee is
considered continuous with the service the employee accrued with ACSAA Limited.
Where a determination is made by the Public Service Commissioner under section 72
of the Public Service Act 1999, ACSAA Limited employees to whom the
determination applies will become APS employees of the Quality Agency and will be
covered by the Long Service Leave (Commonwealth Employees) Act 1976. The effect
of subitem 15(4) is that each such employee's period of service with ACSAA Limited
is to be considered service as an APS employee and will be taken to be `Government
Service' for the purposes of eligibility for long service leave entitlements under the
Long Service Leave (Commonwealth Employees) Act 1976.
ACSAA Limited employees who become APS employees will also be covered by the
Maternity Leave (Commonwealth Employees) Act 1973. Subitem 15(5) provides that
each employee's period of service with ACSAA Limited is to be considered service as
an APS employee. The effect of this is that the employee is taken to have been a
person to whom the Maternity Leave (Commonwealth Employees) Act 1973 applied
while they were an employee of ACSAA Limited. This is relevant for the purposes of
eligibility for paid maternity leave under the Maternity Leave (Commonwealth
Employees) Act 1973.
Part 5 - Other transitional matters
Item 16
This item is intended to ensure that any acquisition of property that may result from
the operation of Schedule 1 is in accordance with paragraph 51(xxxi) of the
Constitution, which requires that the acquisition of property under a law of the
Commonwealth be on just terms.
It is considered that the operation of Schedule 1 is most unlikely to result in the
acquisition of property other than on just terms. This item has been included as a
precautionary measure only, to deal with the unlikely possibility that it may do so, and
thereby ensure the validity of the provisions concerned.
If the operation of Schedule 1 would result in an acquisition of property on other than
just terms, this item would require the Commonwealth to pay a reasonable amount of
compensation to the person whose property was acquired. Subitem 16(2) provides that
if the Commonwealth and the person cannot agree on the amount of compensation,
the amount may be determined by a court.
Item 17
This item enables the Minister to delegate, in writing, any or all of his or her powers
and functions under Schedule 1 to the Secretary of the Department or an employee
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who is a substantive or acting member of the Senior Executive Service in the
Department.
The exception to this is that the Minister cannot delegate his or her powers and
functions in relation to the termination of office holders of ACSAA Limited (item 13).
Subitem 17(3) provides that in exercising powers or functions under a delegation, the
delegate must comply with any directions of the Minister.
Item 18
Subitem 18(1) enables the Governor-General to make regulations in relation to this
Act (once enacted).
Subitem 18(2) makes it clear that the regulation making power provided by this item
extends to matters of a transitional nature relating to the enactment of the Australian
Aged Care Quality Agency (Transitional Provisions) Bill 2013 or the Australian Aged
Care Quality Agency Bill 2013.
Subitem 18(3) provides that regulations may modify the provisions of the Australian
Aged Care Quality Agency (Transitional Provisions) Bill 2013, once enacted. This
subitem has been included because of the complexity of the transitional matters
associated with the transfer of functions from ACSAA Limited to the Quality Agency.
Its purpose is to provide a means of varying the operation of the Schedule in a timely
way to avoid any results that were not intended, with the aim of preventing any
disruption to the oversight of aged care service quality.
Subitem 18(4) puts it beyond doubt that subitems (2) and (3) do not limit subitem (1).
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