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2004-2005-2006-2007
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AGED CARE AMENDMENT (SECURITY AND PROTECTION) BILL 2007
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator the Hon Santo Santoro, Minister for Ageing)
AGED CARE AMENDMENT (SECURITY AND PROTECTION) BILL 2007
OUTLINE
The purpose of the Bill is to amend the Aged Care Act 1997 (the Act) to:
· establish a scheme for compulsory reporting of abuse. The Bill establishes a requirement
for approved providers to:
report to the police and to the Secretary to the Department of Health and Ageing,
incidents involving alleged or suspected reportable assaults. The report must be made
within 24 hours of the allegation or the approved provider starting to suspect a
reportable assault. A reportable assault is defined in the Bill, and includes unlawful
sexual contact, unreasonable use of force, or assault specified in Accountability
Principles made under the Act (and constituting an offence against a law of the
Commonwealth or a State or Territory);
take reasonable measures to ensure staff members report any suspicions or allegations
of reportable assaults to the approved provider (or one of the approved provider's key
personnel, or a person authorised by the approved provider to receive reports), the
police or the Secretary; and
take reasonable measures for protecting the identity of any person who makes a report
of a reportable assault.
Failure to have the necessary systems and protocols in place, and failure to report such
incidents, may lead to compliance action and the possible imposition of sanctions.
· underpin these new compulsory reporting arrangements with protections for approved
providers and their staff who make disclosures about reportable assaults. Recognising
that people will be more likely to report incidents of assault where they do not fear
reprisal from their employer or other staff, protections for people who make certain
disclosures have been included in this Bill;
· enable the establishment of complaints investigation arrangements through new
Investigation Principles; and
· establish the new role of Aged Care Commissioner, to replace the existing Commissioner
for Complaints. The new Commissioner will independently examine certain actions
taken by the Department of Health and Ageing in relation to the investigation of
complaints and about the conduct of the Aged Care Standards and Accreditation Agency
and its assessors. The Aged Care Commissioner will also have the capacity to undertake
"own motion" examinations of certain matters.
FINANCIAL IMPACT STATEMENT
The new initiatives that are implemented through this Bill are part of a $90.2 million (over
four years) package of reforms aimed at further safeguarding older people in Australian
Government-subsidised aged care from sexual and serious physical assault.
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AGED CARE AMENDMENT (SECURITY AND PROTECTION BILL) 2007
NOTES ON CLAUSES
Clause 1 - Short title
This clause provides that the Act may be cited as the Aged Care Amendment (Security and
Protection) Act 2007.
Clause 2 - Commencement
This clause provides that the Act commences on 1 April 2007. This means that approved
providers will be expected to start complying with the new responsibilities imposed by this
legislation (including new responsibilities to compulsorily report certain assaults) from 1
April 2007.
Clause 3 - Schedules
This clause provides that each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the relevant Schedule. Any other item operates according to its terms.
Schedule 1 - Investigations
Aged Care Act 1997
Item 1
Section 56-4 sets out an approved provider's responsibilities in relation to internal complaints
resolution mechanisms. In accordance with this section, all approved providers will continue
to be expected to establish and maintain internal complaints resolution mechanisms.
However, paragraph 56-4(1)(e) currently requires approved providers to comply with any
determinations made by a Complaints Resolution Committee or Determination Review Panel.
As these bodies will be replaced as part of the new system for the investigation of complaints,
this paragraph requires amendment.
This item therefore repeals paragraph 56-4(1)(e) and substitutes it with a new paragraph that
requires approved providers to comply with any requirement made of the approved provider
under the Investigation Principles.
A note at the end of the item clarifies that the repeal and substitution of paragraph 56-4(1)(e)
does not affect an obligation an approved provider had under that paragraph before its repeal
to comply with a determination of a complaint by a committee. In other words, if a
determination has been issued by a committee prior to 1 April 2007, then an approved
provider will still be required to comply with the determination after 1 April 2007 (the
commencement of the new provisions).
Item 2
Section 84-1 describes what is contained in Chapter 6 (Administration) of the Act. This item
repeals the existing description of the Chapter and replaces it with a new description which
includes the new parts that have been added to the chapter through the amendments described
in Schedule 1.
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Section 84-1 What this Chapter is about
Section 84-1 describes the matters that are dealt with in this Chapter, namely:
· reconsideration and administrative review of decisions (see Part 6.1). This Part is not
affected by the amendments in this Bill;
· protection of information (see Part 6.2). A minor amendment is being made to section
86-9 within this Part (refer item 3);
· record-keeping obligations of approved providers (see Part 6.3). This Part is not affected
by the amendments in this Bill;
· powers of officers in relation to monitoring compliance and offences (see Part 6.4). This
Part is not affected by the amendments in this Bill;
· investigations of matters relating to this Act or the Principles made under section 96-1
(see Part 6.4A). Part 6.4A is a new Part describing investigations. This Part is being
inserted into the Act through item 4 of this Bill;
· recovery of overpayments by the Commonwealth (see Part 6.5). This Part is not affected
by the amendments in this Bill; and
· the Aged Care Commissioner, whose functions include examining certain matters relating
to investigations (see Part 6.6). This is a proposed new Part of the Act (refer item 5 of
this Bill).
Item 3
This item repeals subsection 86-9(3). Subsection 86-9(3) currently provides that the
Secretary may make information about the outcome of a complaint relating to an aged care
service available to the complainant. This subsection is being removed because all of the
provisions relating to information that is provided to the Department by informants (including
complaints) will be addressed in the new Investigation Principles that will be made under the
Act.
The Investigation Principles will include detailed information about the means by which
informants will receive feedback about complaints or other information provided to the
Department for investigation. Disclosure of personal information to informants as required
or permitted by the Investigation Principles will not be an offence under section 86-2 because
it will fall within the exemptions specified in paragraph 86-2(2)(a).
Item 4
This item inserts a new Part after Part 6.4.
Part 6.4A - Investigations
Division 94A - Investigation Principles
Section 94A-1 Investigation Principles
Subsection (1) provides that the Investigation Principles (made by the Minister under section
96-1) may make provision relating to the investigation of matters (including complaints)
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relating to this Act or the Principles made under section 96-1, including provision relating to
one or more of the following:
· which matters are to be investigated;
· how investigations are to be conducted;
· considerations in making decisions relating to investigations; and
· procedures for reconsideration or examination of decisions relating to investigations.
Subsection (2) provides that the Investigation Principles may also make provision relating to
actions that may be taken by the Department if it is found in an investigation that an approved
provider has not complied with its responsibilities under Part 4.1 (Quality of Care), 4.2 (User
Rights) or 4.3 (Accountability). For example, it is proposed that the Investigation Principles
will enable the Department to give an approved provider a `Notice of Required Action'
requiring the approved provider to remedy the breach of the approved provider's
responsibilities under the legislation.
Subsection (3) provides that the Investigation Principles may make provision of a transitional
or saving nature relating to complaints that were made in accordance with the Committee
Principles as they existed immediately before the commencement of these new provisions
(that is, complaints that were made prior to 1 April 2007).
Subsection (4) provides that, to avoid doubt, this Part and the Investigation Principles do not
affect any of the following:
· paragraph 56-4(1)(d) (about giving people authorised to investigate complaints access to
an aged care service as specified in the User Rights Principles);
· the User Rights Principles;
· Part 4.4 (Consequences of non compliance);
· the Sanctions Principles; and
· the other Parts of this Chapter (except Part 6.6).
Item 5
This item inserts a new Part at the end of Chapter 6 (Part 6.6 - Aged Care Commissioner).
Part 6.6 - Aged Care Commissioner
Division 95A - Aged Care Commissioner
Section 95A-1 Aged Care Commissioner
This section establishes the Aged Care Commissioner and provides that the functions of the
Aged Care Commissioner are:
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· to examine certain decisions made by the Secretary under the Investigation Principles. It
is proposed that the Investigation Principles will detail which decisions of the Secretary a
person may request the Aged Care Commissioner to examine. Following an examination,
the Commissioner may make recommendations to the Secretary arising from the
examination;
· to examine complaints made to the Aged Care Commissioner about the Secretary's
processes for handling matters under the Investigation Principles, and make
recommendations to the Secretary arising from the examination;
· to examine, on the Aged Care Commissioner's own initiative, the Secretary's processes
for handling matters under the Investigation Principles, and make recommendations to the
Secretary arising from the examination;
· to examine complaints made to the Aged Care Commissioner about: the conduct of an
accreditation body (currently the Aged Care Standards and Accreditation Agency)
relating to its responsibilities under the Accreditation Grant Principles; or the conduct of a
person carrying out an audit, or making a support contact, under those Principles. The
Aged Care Commissioner may also make recommendations to the accreditation body,
arising from the examination. The functions of the Aged Care Commissioner expressly
exclude examination of a complaint about the merits of a decision under those Principles.
This recognises that such decisions are subject to review by the Administrative Appeals
Tribunal and the Federal Court;
· to examine, on the Aged Care Commissioner's own initiative: the conduct of an
accreditation body relating to its responsibilities under the Accreditation Grant Principles;
and the conduct of persons carrying out audits, or making support contacts, under those
Principles. The Aged Care Commissioner will be focusing on the conduct of the
accreditation body and its staff and not on the merits of any particular decision made by
the accreditation body under the Accreditation Grant Principles. The Aged Care
Commissioner may make recommendations to the accreditation body based on the Aged
Care Commissioner's examination of its conduct;
· to advise the Minister, at the Minister's request, about matters relating to any of the Aged
Care Commissioner's functions; and
· the functions (if any) specified in the Investigation Principles. This power provides some
flexibility to broaden the functions of the Aged Care Commissioner yet also ensures that
there is appropriate Parliamentary scrutiny of any proposed additional functions of the
Commissioner.
Section 95A-2 Appointment
This section provides that the Aged Care Commissioner is to be appointed by the Minister by
written instrument either on a full-time or part-time basis. The Aged Care Commissioner
holds office for the period specified in the instrument of appointment. The term of an
appointment must not exceed 3 years. However, a person may be re-appointed for further
terms (as provided for by the Acts Interpretation Act 1901).
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Section 95A-3 Acting appointments
Subsection (1) provides that the Minister may appoint a person to act as the Aged Care
Commissioner:
· when there is a vacancy in the office of the Aged Care Commissioner (whether or not an
appointment has previously been made to the office); or
· when the Aged Care Commissioner is absent from duty, or from Australia, or is unable to
perform the duties of the office.
Subsection (2) clarifies that anything done by or in relation to a person purporting to act
under an appointment is not invalid merely because:
· the occasion for the appointment had not arisen; or
· there was a defect or irregularity in connection with the appointment; or
· the appointment had ceased to have effect; or
· the occasion to act had not arisen or had ceased.
Section 95A-4 Remuneration
This section provides that, subject to the Remuneration Tribunal Act 1973, the Aged Care
Commissioner is to be paid the remuneration that is determined by the Remuneration
Tribunal. If no determination exists, the Aged Care Commissioner is to be paid the
remuneration that is prescribed by the Investigation Principles.
The Aged Care Commissioner is also to be paid the allowances that are prescribed by the
Investigation Principles.
Section 95A-5 Leave of absence
This section provides that if the Aged Care Commissioner is appointed on a full time basis,
he or she has the recreation leave entitlements that are determined by the Remuneration
Tribunal. The Minister may grant the Commissioner leave of absence, other than recreation
leave, on the terms and conditions as to remuneration or otherwise that the Minister
determines.
If the Aged Care Commissioner is appointed on a part time basis, the Minister may grant
leave of absence to the Aged Care Commissioner on the terms and conditions that the
Minister determines.
Section 95A-6 Other terms and conditions
This section provides that any other terms and conditions of the Aged Care Commissioner
(that is, any other terms and conditions that are not mentioned in this Part of the Act) are
determined by the Minister.
Section 95A-7 Restrictions on outside employment
This section provides that if the Aged Care Commissioner is appointed on a full time basis,
he or she must not engage in paid employment outside the duties of the Aged Care
Commissioner's office without the Minister's approval.
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If the Aged Care Commissioner is appointed on a part time basis, he or she must not engage
in any paid employment that conflicts or may conflict with the proper performance of his or
her duties.
Section 95A-8 Disclosure of interests
This section provides that the Aged Care Commissioner must give written notice to the
Minister of all interests, pecuniary or otherwise, that the Commissioner has, or acquires, that
could conflict with the proper performance of the Commissioner's functions.
Section 95A-9 Resignation
This section provides that the Aged Care Commissioner may resign his or her appointment by
giving the Minister a written resignation.
Section 95A-10 Termination of appointment
This section provides that the Minister may terminate the appointment of the Aged Care
Commissioner for misbehaviour or physical or mental incapacity.
The Minister must terminate the appointment of the Aged Care Commissioner if the Aged
Care Commissioner:
· becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or
insolvent debtors, compounds with his or her creditors or makes an assignment of his or
her remuneration for the benefit of his or her creditors; or
· is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12
months; or
· is appointed on a full time basis and engages, except with the Minister's approval, in paid
employment outside the duties of his or her office, or is appointed on a part time basis and
engages in paid employment that conflicts or could conflict with the proper performance
of the duties of his or her office; or
· fails, without reasonable excuse, to comply with section 95A-8. Section 95A-8 requires
that the Commissioner must give written notice to the Minister of all interests, pecuniary
or otherwise, that the Commissioner has or acquires that could conflict with the proper
performance of the Commissioner's functions.
Section 95A-11 Delegations of Aged Care Commissioner's functions
This section provides that the Aged Care Commissioner may delegate in writing all or any of
his or her functions to an APS employee in the Department.
Consideration was given to limiting the power to delegate to certain functions or to certain
people (for example, members of the Senior Executive Service). However it was not
considered that this is appropriate for the following reasons. Each of the functions of the
Commissioner will involve tasks that are high-level (and appropriately carried out by the
Commissioner) and tasks that are of a minor administrative nature. An example of an
administrative task may be, for example, notifying a complainant about the outcome of a
complaint or organising meetings between complainants and approved providers as part of
the examination of an issue. These types of tasks should be able to be delegated by the Aged
Care Commissioner.
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In summary, a wide range of sub-functions (which will be further described in the new
Investigation Principles which will set out some of the processes of the Aged Care
Commissioner) will need to be delegated within the office of the Aged Care Commissioner.
In order to ensure that the Aged Care Commissioner has due regard to the nature of the tasks
to be delegated, and the appropriateness of the person to whom the delegation is proposed to
be made, an express provision has been included in the Act requiring the Aged Care
Commissioner to have regard to the function to be performed by the delegate and the
responsibilities of the APS employee to whom the function is delegated. This is consistent
with the existing subsection 96-2(2) of the Act, which also requires the Secretary to consider
these matters when delegating powers in accordance with section 96-2(1) of the Act.
Subsection 95A-11(3) provides that a delegate who is performing functions delegated by the
Aged Care Commissioner must comply with any directions of the Aged Care Commissioner.
Section 95A-12 Annual report
This section provides that the Aged Care Commissioner must, as soon as practicable after the
end of each financial year, prepare and give to the Minister, for presentation to the
Parliament, a report on the Aged Care Commissioner's operations during that year.
Section 34C of the Acts Interpretation Act 1901 contains extra rules about annual reports.
For example, section 34C of the Acts Interpretation Act 1901 provides that:
· where an Act requires a person to furnish a periodic report to a Minister, but does not
specify a period within which the report is to be so furnished, that person shall furnish the
report to the Minister as soon as practicable after the end of the particular period to which
the report relates and, in any event, within 6 months after the end of that particular period;
· where an Act requires a person to furnish a periodic report to a Minister for presentation
to the Parliament, but does not specify a period within which the report is to be so
presented, that Minister shall cause a copy of the periodic report to be laid before each
House of the Parliament within 15 sitting days of that House after the day on which he
receives the report; and
· if it is not possible to meet the time requirements, a person may apply to the Minister for
an extension of the period, and the Minister may grant an extension.
Subsection (2) of proposed new section 95A-12 provides that the Aged Care Commissioner
must include in the report:
· the number of decisions made by the Secretary under the Investigation Principles that the
Aged Care Commissioner examined during the financial year;
· the number of complaints about the following matters (examinable complaints) that were
made to the Aged Care Commissioner during the financial year:
- administrative processes adopted by the Secretary in relation to the handling of
matters under the Investigation Principles;
- the conduct of an accreditation body relating to its responsibilities under the
Accreditation Grant Principles;
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- the conduct of a person carrying out an audit or support contact under those
Principles;
· the number of examinable complaints that the Aged Care Commissioner started to
examine during the financial year;
· the number of examinable complaints that the Aged Care Commissioner finished
examining during the financial year;
· a summary of the nature of the examinations made by the Aged Care Commissioner
during the financial year of examinable complaints;
· the number of examinations made by the Aged Care Commissioner on his or her own
initiative during the financial year;
· a summary of the nature of examinations made by the Aged Care Commissioner on his or
her own initiative during the financial year;
· the number of requests for advice the Minister made to the Aged Care Commissioner
during the financial year;
· a summary of the nature of those requests;
· a summary of the nature of advice given by the Aged Care Commissioner to the Minister
during the financial year in response to requests by the Minister; and
· any other information required by the Investigation Principles to be included in the report.
Item 6
This section amends the table in subsection 96-1(1) (which lists all of the Principles made
under the Act) by inserting a reference to Investigation Principles. The effect of this is that
the Minister may make the proposed new Investigation Principles. Proposed new Part 6.4A
sets out more detail about what is proposed to be included in the Investigation Principles
(refer item 4).
While the new Investigation Principles will largely replace the existing Committee Principles,
the Committee Principles are not being repealed at this time because it may be necessary to
retain parts of these Principles to deal with complaints made prior to the commencement of
the new Investigation Principles on 1 April 2007. It is not intended that any complaints
received after 1 April 2007 would be dealt with under the Committee Principles.
Item 7
This item amends subsection 96-2(1) (which describes the Secretary's power to delegate) to
enable the Secretary to delegate powers to the Aged Care Commissioner.
The heading of section 96-2 is also changed from "Delegations" to "Delegations of
Secretary's powers and functions". This distinguishes this section from the new section
(section 95A-11) that deals with delegations by the Aged Care Commissioner of his or her
functions.
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Item 8
This item repeals subsection 96-3(2) of the Act. This subsection describes the matters that
may be included in Committee Principles in relation to the resolution of complaints. As
complaints will no longer be dealt with under the Committee Principles after 1 April 2007 (as
complaints will be dealt with under the new Investigation Principles), the subsection has been
repealed.
Item 9
Clause 1 of Schedule 1 sets out the definitions used in the Act. This item inserts a new
definition of Aged Care Commissioner in that Schedule. Aged Care Commissioner means
the Aged Care Commissioner holding office under the new Part 6.6.
Schedule 2 - Reporting assaults
Aged Care Act 1997
Item 1
This item inserts a new section after section 63-1 (section 63-1AA).
Section 63-1AA Responsibilities relating to alleged and suspected assaults
This section sets out the responsibilities of an approved provider of residential care in relation
to an allegation or suspicion of a "reportable assault".
In summary, a "reportable assault" is defined in subsection (9) to mean unlawful sexual
contact, unreasonable use of force, or assault specified in the Accountability Principles (and
constituting an offence against a law of the Commonwealth or a State or Territory), that is
inflicted on a person receiving Commonwealth funded residential aged care services.
Section 63-1AA requires the approved provider to:
· Report reportable assaults - In summary, if the approved provider receives an allegation
of, or starts to suspect on reasonable grounds, a reportable assault, the approved provider
is responsible for reporting the allegation or suspicion as soon as reasonably practicable,
and in any case within 24 hours. The report must be made to a police officer (with
responsibility relating to an area including the place where the assault is alleged or
suspected to have occurred) and to the Secretary to the Department of Health and Ageing.
The only exception to this requirement (when an approved provider has the discretion not
to report) is in the circumstances (if any) specified in the Accountability Principles.
However, in these circumstances, the approved provider is responsible for complying
with any alternative requirements detailed in those Principles. The capacity to describe
certain circumstances in the Principles, where reporting to police and the Department is
not mandated, is intended to deal with very specific and sensitive circumstances such as
minor assaults perpetrated by residents with a diagnosed mental impairment (such as
dementia).
The aged care sector has advised that minor assaults by such residents (for example
pushing and hitting) are not uncommon and in such cases the focus should be on
behaviour management and not police and Departmental involvement which can be
traumatic for all involved.
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Recognising these concerns, provision has been made for the Principles to describe
alternative arrangements for these very specific circumstances where the focus should be
on effective behaviour management. This approach enables cases involving residents with
a mental impairment to be clinically managed by the approved provider where this is the
most appropriate response.
These alternative arrangements, to be specified in the Principles, will be subject to
Parliamentary scrutiny (as Principles are legislative instruments made under section 96-1
of the Act).
The provision also makes it clear that the new obligations on approved providers to report
(or the discretion not to report if the circumstances described in the Principles exist) do
not in any way affect any obligation the approved provider has under another State or
Territory law to report a reportable assault (or an allegation or suspicion of a reportable
assault). Similarly, the new requirements do not prevent an approved provider from
reporting any assault (regardless of whether it is defined as a reportable assault under this
Act) to the police or the Department.
· Require staff members to report reportable assaults - Staff members are defined in
subsection (9) to mean an individual who is employed, hired, retained or contracted by
the approved provider (whether directly or through an employment or recruiting agency)
to provide care or other services. The approved provider is responsible for taking
reasonable measures to require each of its staff members (who suspects on reasonable
grounds that a reportable assault has occurred) to report the suspicion as soon as
reasonably practicable to one or more of the following people, as chosen by the staff
member:
- the approved provider;
- one of the approved provider's key personnel;
- another person authorised by the approved provider to receive reports of suspected
reportable assaults;
- a police officer with responsibility relating to an area including the place where the
assault is suspected to have occurred; or
- the Secretary.
The provision makes it clear that the staff member can report to any of these people (and
may choose to report to more than one person). In particular, staff members are given
the option of reporting directly to the police or the Secretary to the Department of Health
and Ageing. This may occur where, for example, a staff member does not feel
comfortable reporting alleged incidents to their employer.
· Ensure staff member informants are not victimised - The approved provider is
responsible for ensuring, as far as reasonably practicable, compliance with the following
provisions in relation to a staff member of the approved provider who makes a protected
disclosure;
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- 96-8(2)(b) - This paragraph requires that no contractual or other remedies are
enforced or exercised against a person on the basis of a disclosure. The approved
provider must ensure, as far as reasonably practicable, that any staff member who
makes a disclosure does not have contractual remedies enforced or exercised
against them because they made a protected disclosure;
- 96-8(3)(b) - This paragraph provides that if a person who makes a disclosure is a
party to a contract then that contract may not be terminated on the basis that the
disclosure constitutes a breach of contract. The approved provider must ensure, as
far as reasonably practicable, that any contract with a staff member who makes a
disclosure is not terminated on the grounds that the staff member made the
protected disclosure;
- 96-8(6) - This subsection provides that a person must not cause detriment to
another person because they have made a protected disclosure. The responsibility
to ensure staff member informants are not victimised requires compliance not only
by the approved provider but extends to the approved provider ensuring as far as
reasonably practicable that there is also compliance by others, such as other staff
members of the approved provider and other parties with whom the approved
provider contracts (for example, an employment agency); and
- 96-8(7) - This subsection requires that a person must not threaten another person
because they made a protected disclosure. As for each of the other provisions, the
approved provider must ensure, as far as reasonably practicable, that any staff
member who makes a disclosure does not suffer threats because they made a
protected disclosure.
· Protect informants' identities - If a person reports a suspected reportable assault to the
approved provider, the provider is responsible for taking reasonable measures to ensure
that the fact that the person was the maker of the report is not disclosed, except to one or
more of the following:
- a police officer with responsibility relating to an area including the place where the
assault is suspected to have occurred;
- the Secretary;
- a person, authority or court to which the approved provider is required by a law of
the Commonwealth or a State or Territory to disclose the fact; or
- the approved provider's key personnel.
If a person reports a suspected reportable assault to someone (the report recipient) who is
one of the approved provider's key personnel (or staff member authorised by the provider
to receive reports of suspected reportable assaults), the provider is responsible for taking
reasonable measures to ensure that the report recipient does not disclose the fact that the
person was the maker of the report, except to the people specified above.
Item 2
This item inserts a new section after section 96-7 (new section 96-8).
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Section 96-8 Protection for reporting reportable assaults
This section sets out:
· the disclosures that qualify for protection (subsection 96-8(1));
· the immunities for disclosure (subsections 96-8(2) - (5)); and
· the prohibitions on victimisation for disclosure (subsections 96-8(6) and (7)).
The section has been based on the protected disclosure provisions contained within the
Corporations Act 2001 and the Workplace Relations Act 1996.
In summary, subsection 96-8(1) provides that a disclosure of information by a person (the
discloser) qualifies for protection if:
· the discloser is an approved provider of residential care or a staff member of the approved
provider. "Staff member" is defined in section 63-1AA and includes any person who is
employed, hired, retained or contracted by an approved provider (whether directly or
through an employment or recruitment agency) to provide care or other services; and
· the disclosure is made to:
- a police officer;
- the Secretary to the Department of Health and Ageing; or
- the approved provider, or one of the approved provider's key personnel, or another
person authorised by the approved provider to receive reports of alleged or
suspected reportable assaults; and
· the discloser informs the person to whom the disclosure is made of the discloser's name
before making the disclosure; and
· the discloser has reasonable grounds to suspect that the information indicates that a
reportable assault has occurred; and
· the discloser makes the disclosure in good faith.
If a person makes a disclosure of a reportable assault in the way specified above, the discloser
is:
· protected from any civil or criminal liability for making the disclosure. It is important
to note that the effect of the subsection is not to provide that the person is exempt from
any civil or criminal liability for conduct of the person that is revealed by the disclosure.
For example, if a person themselves assaulted a care recipient and told the Secretary to
the Department of Health and Ageing that they did so, this would not protect the person
from prosecution for the assault. However, the provision does protect people from civil
or criminal liability if such liability was because they made the disclosure (as opposed to
because of the conduct that was the subject of the disclosure). Subsections (3) and (4)
clarify that:
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- without limiting the provision, the person has qualified privilege in proceedings for
defamation relating to the disclosure and is not liable to an action for defamation at
the suit of another person relating to the disclosure; and
- this protection does not affect any other right, privilege or immunity the person has
as a defendant in proceedings, or an action, for defamation.
· protected from someone enforcing a contractual or other remedy against the person on
the basis of the disclosure. Without limiting the operation of this protection, the
provision makes it clear that a contract to which the person is a party may not be
terminated on the basis that the disclosure constitutes a breach of the contract. For
example, if a staff member is a party to a contact of employment that specifies that the
staff member must not discuss issues that arise in a home with anyone outside the home, a
disclosure by the staff member that qualifies for protection under this section would not
give the employer the right to terminate the contract. However, a disclosure to a person
that is not in the list of people to whom a qualified disclosure may be made would
potentially expose the staff member to termination of their employment contract.
· protected from victimisation. A person must not:
- cause detriment (by act or omission) to another person because the other person
makes (or may make) a disclosure that qualifies for protection. If the other person
is a staff member of an approved provider, the provider has a responsibility to
ensure, as far as reasonably practicable, compliance with this requirement.
Sanctions may be imposed on the provider under Part 4.4 if the provider does not
comply with this responsibility; and
- threaten another person (whether expressly, impliedly, conditionally or
unconditionally) because the other person makes a protected disclosure (or may
make such a disclosure).
Without limiting the protections described in the section, if a court is satisfied that an
employee has made a protected disclosure and the employer (be it the approved provider or a
recruitment agency who employs the person on behalf of the approved provider) has
terminated the discloser's contract of employment on the basis of the disclosure, the court
may:
· order that the employee be reinstated in that position or a position at a comparable level;
or
· order the employer to pay the employee an amount instead of reinstating the employee, if
the court considers it appropriate to make the order.
Item 3
This item amends clause 1 of Schedule 1 (which is the Dictionary to the Aged Care Act 1997)
by inserting a definition of reportable assault. The definition in the dictionary provides that
reportable assault has the meaning given by section 63-1AA.
14
reportable assault means unlawful sexual contact, unreasonable use of force, or assault
specified in the Accountability Principles and constituting an offence against a law of
the Commonwealth or a State or Territory, that is inflicted on a person when:
(a) the person is receiving residential care in respect of which the provider is
approved; and
(b) either:
(i) subsidy is payable under Chapter 3 for provision of the care to the
person; or
(ii) the person is approved under Part 2.3 as the recipient of that type of
residential care.
Item 4 Application
This item provides that the amendments made by the Schedule apply in relation to reportable
assaults first alleged or suspected on or after the commencement of this Schedule to have
occurred before, on or after that commencement.
For example, there could be an allegation made on 5 April 2007 in relation to a reportable
assault that is alleged to have occurred in December 2006. In this case, the approved
provider must report the incident within 24 hours of the allegation being made, regardless of
when the assault occurred. The approved provider would also have a responsibility to report
the matter if the approved provider starts to suspect on 5 April 2007 that a reportable assault
has occurred, but is unsure when the actual assault occurred. The approved provider must
report the assault within 24 hours of starting to suspect that a reportable assault occurred.
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