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2013-2014-2015
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
AGED CARE AMENDMENT
(INDEPENDENT COMPLAINTS ARRANGEMENTS) BILL 2015
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Assistant Minister for Social Services, Senator the Hon Mitch Fifield)
AGED CARE AMENDMENT
(INDEPENDENT COMPLAINTS ARRANGEMENTS) BILL 2015
OUTLINE
This Bill makes amendments to the Aged Care Act 1997 (the Aged Care Act)
to reflect the implementation of the 2015 Budget measure, Aged Care - Independent
Aged Care Complaints Arrangements, under which responsibility for aged care
complaints will be transferred from the Secretary of the Department of Social
Services (the Secretary) to the Aged Care Commissioner.
The Complaints Principles 2014 (the Complaints Principles), which are made under
section 96-1 of the Aged Care Act, provide a scheme for the management and
resolution of complaints and other concerns about aged care services. Matters
which may be dealt with by the Complaints Principles are set out in the Aged Care
Act.
Under the Complaints Principles, a person may make a complaint to the Secretary
about an issue or issues concerning an approved provider's responsibilities under
the Aged Care Act or any of the Principles made under section 96-1 of the Aged
Care Act. The Complaints Principles give the Secretary powers to manage those
complaints.
Part 6.6 of the Aged Care Act provides for an Aged Care Commissioner, with
functions set out in the Aged Care Act and the Complaints Principles. Currently,
the Aged Care Commissioner has powers to examine certain decisions made under
the Complaints Principles. The Aged Care Commissioner also has powers to
examine complaints about the Secretary's processes for handling matters under the
Complaints Principles and certain processes of the Australian Aged Care Quality
Agency.
This Bill will amend Part 6.6 of the Aged Care Act to enable the Aged Care
Commissioner to manage and resolve complaints under the Complaints Principles,
in place of the Commissioner's current capacity as a mechanism of review.
The current review functions undertaken by the Aged Care Commissioner will be
removed. It also changes the title of the Aged Care Commissioner to the Aged Care
Complaints Commissioner, to reflect the fact that the Commissioner's functions
relate to aged care complaints. This Bill will also make consequential amendments
to the Australian Aged Care Quality Agency Act 2013 to reflect the change in title.
This measure will increase the independence of aged care complaints handling by
separating responsibility for the management of aged care complaints from the
Department of Social Services' aged care policy and regulatory functions.
It is expected this initiative will be implemented from 1 January 2016.
Financial impact statement
The measure will have a financial impact of $2.8 million in savings over four years.
1
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The statement of compatibility with human rights appears at the end of this
explanatory memorandum.
2
AGED CARE AMENDMENT
(INDEPENDENT COMPLAINTS ARRANGEMENTS) BILL 2015
NOTES ON CLAUSES
Abbreviations used in this explanatory memorandum
Aged Care Act means the Aged Care Act 1997
Complaints Principles means the Complaints Principles 2014, made under
section 96-1 of the Aged Care Act
Quality Agency Act means the Australian Aged Care Quality Agency
Act 2013
Clause 1 sets out how the new Act is to be cited - that is, as the Aged Care
Amendment (Independent Complaints Arrangements) Act 2015.
Clause 2 provides for the whole of the new Act to commence on a single day to be
fixed by Proclamation, or, if Proclamation does not occur within six months, on the
day after the end of the six-month period.
Clause 3 provides that legislation specified in a Schedule to the Act is amended or
repealed as set out in that Schedule.
1
Schedule 1 - Amendments
Summary
This Schedule makes amendments to the Aged Care Act to transfer responsibility for
aged care complaints from the Secretary of the Department of Social Services to the
Aged Care Commissioner. The Schedule also changes the title of the Aged Care
Commissioner to the Aged Care Complaints Commissioner.
Background
The Complaints Principles, which are made under section 96-1 of the Aged Care
Act, provide a scheme for the management and resolution of complaints and other
concerns about aged care services. Matters which may be dealt with by the
Complaints Principles are set out in the Aged Care Act.
Under the Complaints Principles, a person may make a complaint to the Secretary
about an issue or issues concerning an approved provider's responsibilities under
the Aged Care Act or any of the Principles made under section 96-1 of the Aged
Care Act. The Complaints Principles give the Secretary powers to manage those
complaints.
Both consumers and providers of aged care seek independence in complaints
management. There is a concern about potential bias where an industry subsidiser
is also the regulator, and then also handles complaints about that industry,
as currently occurs in the Department of Social Services. The independence of the
complaints scheme was recommended in the 2009 Walton Review of the previous
Complaints Investigation Scheme.
The amendments made by this Schedule will increase the independence of aged
care complaints handling by separating responsibility for the management of aged
care complaints from the Department of Social Services' aged care policy and
regulatory functions.
Explanation of the changes
Part 1 - Amendments
Amendments to the Aged Care Act
Item 1: Paragraph 56-4(1)(d)
Section 56-4 of the Aged Care Act outlines the responsibility of approved providers
to establish a complaints resolution mechanism for an aged care service. Currently,
paragraph 56-4(1)(d) provides that an approved provider must allow people
authorised by the Secretary to investigate and assist in the resolution of complaints
to have such access to the service as is specified in subordinate legislation.
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Schedule 1 - Amendments
This item amends paragraph 56-4(1)(d) to clarify that an approved provider must
allow an authorised complaints officer to have access to an aged care service to be
able to investigate and assist in the resolution of complaints. Authorised complaints
officers are appointed by the Aged Care Complaints Commissioner under the new
section 94B-1 inserted by item 11 below. As the Aged Care Complaints
Commissioner will have responsibility for aged care complaints, it is appropriate for
authorised complaints officers who are appointed by the Aged Care Complaints
Commissioner to have the power to access a service under this paragraph.
Item 2: After paragraph 63-1(1)(b)
Subsection 63-1(1) of the Aged Care Act outlines the accountabilities of approved
providers for aged care provided through an aged care service. This item inserts a
new paragraph 63-1(1)(ba) specifying that an approved provider must cooperate with
any person who is exercising powers under the new Division 94B (see item 11
below) in relation to the service.
Items 3 and 4: Section 84-1
Section 84-1 outlines what matters are covered by Chapter 6 of the Aged Care Act.
Item 3 amends this section to provide that Chapter 6 deals with the management
and resolution of complaints and other concerns about the provision of aged care
services, and powers of authorised complaints officers. This change is
consequential on the addition of new Division 94B, which sets out the powers of
authorised complaints officers.
Item 4 amends this section to refer to the new functions of the Aged Care
Complaints Commissioner, which will include functions relating to complaints and
other concerns conferred on the Commissioner by the Complaints Principles.
Item 5: Section 86-3
Section 86-3 of the Aged Care Act sets out situations in which a disclosure of
protected information is authorised. Currently, section 86-3 only authorises the
Secretary to disclose protected information in specified situations. This item
re-numbers the existing section as subsection (1). This change is required due to
the insertion by item 6 below of a new subsection that refers to the Aged Care
Complaints Commissioner.
Item 6: At the end of section 86-3
This item amends section 86-3 by adding a new subsection 86-3(2), which sets out
the circumstances in which the Aged Care Complaints Commissioner is authorised
to disclose protected information. The paragraphs in this new subsection mirror
some of the existing provisions in section 86-3. The intention of this item is to confer
powers on the Aged Care Complaints Commissioner to disclose protected
information to certain persons as part of their functions. The authorised situations
are as follows:
(a) to persons and for such purposes as determined by the Aged Care
Complaints Commissioner where the Aged Care Complaints Commissioner
certifies it is necessary in the public interest; and
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Schedule 1 - Amendments
(b) to a person who, in the opinion of the Aged Care Complaints Commissioner,
is expressly or impliedly authorised by the person to whom the information
relates. This will allow the Aged Care Complaints Commissioner to give
information to people authorised to act on behalf of a care recipient or
complainant; and
(c) in order to prevent or lessen a serious risk to the safety, health or well-being
of a care recipient. The intention of this item is to enable the Aged Care
Complaints Commissioner to release information to organisations such as the
police, the Quality Agency, the fire brigade, Aged Care Assessment Teams,
advocacy services, guardianship bodies and State welfare authorities where
urgent action is required; and
(d) to a body responsible for standards of professional conduct. The intention of
this item is to ensure that, where the Aged Care Complaints Commissioner
believes, on reasonable grounds, that a person's conduct breaches the
standards of professional conduct, the appropriate body can be notified in
order to protect care recipients' well-being; and
(e) to the appropriate agency or agencies for the enforcement of the criminal law
or a law imposing pecuniary penalty or for the protection of the public
revenue; and
(f) to a person of a kind and for the purposes specified in the Information
Principles. The Information Principles are made under section 96-1 of the
Aged Care Act.
Subsection 86-3(3) is included to assist readers. It confirms that disclosures of
protected information made under section 86-3 are not legislative instruments,
because disclosures are not legislative in character. This section is not intended to
be a substantive exemption from the Legislative Instruments Act 2003; rather, it is
merely declaratory of the law.
Item 7: Section 86-5 (heading)
This item amends the heading to section 86-5 to remove the reference to 'protected
information disclosed by the Secretary', and replace it with references to 'information
disclosed under section 86-3 or 86-4'. This change is required due to the insertion
by item 6 above of new subsection 86-3(2), which refers to the Aged Care
Complaints Commissioner.
Item 8: Part 6.4A (heading)
This item repeals the current heading to Part 6.4A and substitutes a new heading
that refers to authorised complaints officers. This change is consequential to the
amendments made in item 11 below creating authorised complaints officers.
Item 9: Before Division 94A
This item inserts a new Division 94AA, which provides an overview of Part 6.4A and
sets out a table of Divisions. Part 6.4A sets out matters that may be dealt with by the
Complaints Principles, and sets out the powers of authorised complaints officers.
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Schedule 1 - Amendments
Item 10: After paragraph 94A-1(2)(f)
This item amends subsection 94A-1(2) to insert a new paragraph (g), which provides
that the Complaints Principles may include provisions authorising the provision of
information relating to complaints and concerns to the Secretary of the Department
or to the CEO of the Quality Agency. The intention of this item is to facilitate the
passage of information between the Aged Care Complaints Commissioner,
the Secretary and the Quality Agency.
Item 11: At the end of Part 6.4A
This item adds a new Division 94B, which creates the role of authorised complaints
officers.
Currently, delegates of the Secretary investigating complaints made under the
Complaints Principles exercise some of the powers of authorised officers under
Part 6.4 of the Aged Care Act. Those staff will need to retain certain powers when
responsibility for aged care complaints transfers from the Secretary to the Aged Care
Complaints Commissioner.
This Division creates the role of authorised complaints officers who hold similar
powers to some of the monitoring powers held by authorised officers under Part 6.4
of the Aged Care Act.
New section 94B-1: Authorised complaints officers
Subsection (1) gives the Aged Care Complaints Commissioner power to appoint
officers of the Department to be authorised complaints officers for the purposes of
this Division. The authorisation of an officer must be in writing.
Subsections (2), (3) and (4) provide that the Aged Care Complaints Commissioner
must issue an identity card to each authorised complaints officer, which specifies the
name and appointment of the person and has a recent photograph of the person
attached.
Subsection (5) requires authorised complaints officers to return their identity cards to
the Aged Care Complaints Commissioner when they cease to be an authorised
complaints officer.
New section 94B-2: Meaning of complaints powers
New section 94B-2 details complaints powers that may be exercised by authorised
complaints officers under this Division.
Subsection (1) sets out the powers that constitute complaints powers. These are
similar to the monitoring powers under Division 90 of the Aged Care Act, but have
been structured to limit complaints powers to only those powers currently exercised
by authorised officers investigating complaints made under the Complaints
Principles.
These include powers to:
(i) search premises;
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Schedule 1 - Amendments
(ii) take photographs (including a video recording), or make sketches, of the
premises or any substance or thing at the premises;
(iii) inspect, examine and take samples of any substance or thing on or in the
premises;
(iv) inspect any document or record kept on the premises;
(v) take extracts from, or make copies of, any document or record on the
premises;
(vi) take onto the premises any equipment or material reasonably necessary for
the purpose of exercising any power under subsection 94B-2(1).
Subsection (2) specifies that, where an authorised complaints officer believes,
on reasonable grounds that there is an item on the premises that may afford
evidence of the commission of an offence under the Aged Care Act, the officer may
inform the Secretary or an authorised officer and secure the item until an authorised
officer is able to obtain a warrant to seize it.
The intention of this subsection is to allow authorised complaints officers to inform
the Secretary or an authorised officer of possible offences under the Aged Care Act
so the Secretary or authorised officer can investigate.
Complaints powers also include the powers of authorised complaints officers as set
out in subsections (3) and (4) as described below.
Subsection (3) provides that an authorised complaints officer has power to operate
equipment at the premises to see whether the equipment, or a disk, tape or other
storage device associated with the equipment, contains information that is relevant
to assessing whether the approved provider:
has met their responsibilities under Chapter 4 of the Aged Care Act; or
has kept records as required under Part 6.3 of the Aged Care Act.
Subsection (4) specifies that, where the authorised complaints officer has operated
equipment and finds that the equipment, or a disk, tape or other storage device,
contains information as described in subsection (3), the complaints powers include:
(a) putting the information into the form of a document and copying it; or
(b) where the information can be transferred to a disk, tape or other storage
device, using other equipment or facilities to copy the information to another
storage device and removing it from the premises. The storage device onto
which the information is copied can be either brought to the premises by the
authorised complaints officer, or, if it is already at the premises, it can be used
with the written consent of the occupier of the premises.
New section 94B-3: Power to enter premises with occupier's consent to exercise
complaints powers
The intention of this new section is to provide authorised complaints officers with
powers similar to some of those exercised by authorised officers under section 91-1
of the Aged Care Act.
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Schedule 1 - Amendments
Subsection (1) specifies that an authorised complaints officer may enter:
(i) an aged care service at any time of the day or night; or
(ii) any other premises (including residential premises) at any time between 9 am
and 5 pm on a business day (that is, a day that is not a Saturday, Sunday or
public holiday in the place concerned);
with the occupier's consent to exercise complaints powers for the purposes set out in
subsection (2).
Subsection (2) sets out limits on when an authorised complaints officer can enter
premises with the occupier's consent. The authorised complaints officer must not
enter unless the officer does so in relation to a matter that is connected with the
Aged Care Complaints Commissioner's functions, and to the extent reasonably
necessary for certain purposes. These purposes are:
(i) assessing an approved provider's compliance with its responsibilities under
Chapter 4 of the Aged Care Act; or
(ii) assessing whether records have been kept as required under Part 6.3 of the
Aged Care Act.
Subsection (3) specifies that an authorised complaints officer must not enter
premises unless the occupier has consented to the entry. If an occupier has
consented to the entry, the consent may be withdrawn at any time. Where consent
is withdrawn (for example, by asking the officer to leave), the authorised complaints
officer must leave the premises.
Subsection (4) provides that, before the authorised complaints officer obtains the
occupier's consent to enter the premises, the officer must inform the occupier that he
or she may refuse to give consent and that, if consent is given, it can be withdrawn
at any time.
For entry of an authorised complaints officer to be lawful, the consent given by the
occupier must be voluntary.
The note mentions a qualification to this subsection. It points out that approved
providers have a responsibility to cooperate with a person who is exercising powers
under this Division. An approved provider who does not comply with a request made
under subsection (1) may not be complying with that responsibility. This failure can
result in a sanction being imposed under Part 4.4 of the Aged Care Act, but this note
is not intended to suggest that sanctions would automatically be imposed in all
circumstances where consent is refused. Before sanctions would be considered,
there are a number of procedural fairness steps under Part 4.4 of the Aged Care Act
which give the approved provider opportunities to respond to concerns before
sanctions would be imposed.
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Schedule 1 - Amendments
Subsection (5) sets out that an authorised complaints officer must not enter premises
under subsection (1) or exercise complaints powers under section 94B-2 if the
occupier has asked the officer to produce his or her identity card and the officer fails
to do so.
New section 94B-4: Power to ask people to answer questions etc.
This new section gives authorised complaints officers similar powers to those under
section 91-2 of the Aged Care Act.
Under subsection (1), an authorised complaints officer who has entered premises
under section 94B-3 may ask a person at the premises to answer questions and
produce any documents or records as requested.
Under subsection (2), the person may refuse to answer questions or produce
documents or records.
The note mentions a qualification to this subsection. It points out that approved
providers have a responsibility to cooperate with a person who is exercising powers
under this Division. An approved provider who does not comply with a request made
under subsection (1) may not be complying with that responsibility. This failure can
result in a sanction being imposed under Part 4.4 of the Aged Care Act, but this note
is not intended to suggest that sanctions would automatically be imposed in all
circumstances where consent is refused. Before sanctions would be considered,
there are a number of procedural fairness steps under Part 4.4 of the Aged Care Act
which give the approved provider opportunities to respond to concerns before
sanctions would be imposed.
Subsection (3) provides that the powers of the authorised complaints officer under
this section are to be exercised subject to the requirements of Australian Privacy
Principles 3 and 5 under the Privacy Act 1988.
New section 94B-5: Occupier of premises to assist authorised complaints officers
This new section gives authorised complaints officers similar powers to those under
section 91-3 of the Aged Care Act.
Subsection (1) provides that an authorised complaints officer who has entered
premises may ask the occupier to provide reasonable assistance in exercising the
officer's powers under section 94B-3.
Subsection (2) specifies that an occupier may refuse to provide assistance
requested.
8
Schedule 1 - Amendments
The note mentions a qualification to this subsection. It points out that approved
providers have a responsibility to cooperate with a person who is exercising powers
under this Division. An approved provider who does not comply with a request made
under subsection (1) may not be complying with that responsibility. This failure can
result in a sanction being imposed under Part 4.4 of the Aged Care Act, but this note
is not intended to suggest that sanctions would automatically be imposed in all
circumstances where consent is refused. Before sanctions would be considered,
there are a number of procedural fairness steps under Part 4.4 of the Aged Care Act
which give the approved provider opportunities to respond to concerns before
sanctions would be imposed.
Items 12, 13 and 14: Part 6.6 (heading), Division 95A (heading) and
Section 95A-1 (heading)
These items repeal the current headings to Part 6.6, Division 95A and section 95A-1,
and substitute new headings that refer to the Aged Care Complaints Commissioner.
These changes are required due to changing the title of the Commissioner.
Item 15: Subsection 95A-1(1)
This item changes the title of the Aged Care Commissioner to the Aged Care
Complaints Commissioner. This change is to reflect the fact that the
Commissioner's functions relate to aged care complaints.
The note clarifies that section 25B of the Acts Interpretation Act 1901 applies to the
change in title of the office of the Commissioner. Section 25B provides that, where
an Act alters the name of an office, such as the Aged Care Commissioner, then the
office continues in existence under the new name so that its identity is not affected.
As such, the office of the Aged Care Commissioner before the commencement of
the new Act is the same as the office of the Aged Care Complaints Commissioner
after the commencement of the new Act. Any references to the Aged Care
Commissioner in any instrument under an Act, or any award, industrial determination
or industrial agreement (such as remuneration determinations by the Remuneration
Tribunal), may be construed as a reference to the Aged Care Complaints
Commissioner.
Item 16: Subsection 95A-1(2)
This item amends subsection 95A-1(2), which describes the functions of the Aged
Care Commissioner. The Aged Care Commissioner currently has the power to
examine:
certain decisions made under the Complaints Principles;
complaints about the Secretary's processes for handling matters under the
Complaints Principles and the processes of the Quality Agency in accrediting
aged care services and conducting the quality review of home care services;
and
on the Aged Care Commissioner's own initiative, the Secretary's processes
for handling matters under the Complaints Principles, and the processes of
the Quality Agency.
9
Schedule 1 - Amendments
With the transfer of responsibility for the management of aged care complaints from
the Secretary to the Aged Care Complaints Commissioner, the functions of the
Commissioner as set out in the Aged Care Act need to be amended. This item
repeals subsection 95A-1(2) and substitutes new provisions setting out the
Commissioner's functions as follows:
(a) the functions relating to complaints and other concerns conferred on the
Commissioner by the Complaints Principles made under section 96-1. It is
proposed that the Complaints Principles will detail the powers of the Aged
Care Complaints Commissioner to manage and resolve complaints and other
concerns about Commonwealth subsidised aged care services through which
aged care is provided by approved providers;
(b) to educate people (including approved providers) and develop resources
relating to best practice in the handling of complaints and matters arising from
complaints relating to approved providers' responsibilities under the Aged
Care Act and Principles made under that Act;
(c) any other functions conferred on the Aged Care Complaints Commissioner by
the Complaints Principles. This power provides some flexibility to broaden the
functions of the Commissioner if needed, yet also ensures there is appropriate
Parliamentary scrutiny of any proposed additional functions of the
Commissioner;
(d) any other functions conferred on the Aged Care Complaints Commissioner by
the Aged Care Act. This power provides some flexibility to broaden the
functions of the Commissioner in the Aged Care Act if needed; and
(e) to advise the Minister, at the Minister's request, about matters relating to any
of the Aged Care Complaints Commissioner's functions.
The intention of this item is to remove the Aged Care Complaints Commissioner's
functions to examine decisions made by the Secretary under the Complaints
Principles, and to ensure the Complaints Principles may give the Commissioner
functions in relation to complaints and other concerns. The Commissioner will no
longer need functions to examine decisions or processes for handling complaints,
because the Commissioner will now have primary responsibility over the
management and resolution of those complaints under the Complaints Principles.
It will also no longer be appropriate for the Commissioner to consider complaints
about the processes of the Quality Agency. Concerns about those processes can be
raised with the Commonwealth Ombudsman under existing arrangements.
Item 17: Before subsection 95A-1(3)
This item inserts a new subheading into section 95A-1. This heading relates to
subsections 95A-1(3) and (4), which allow the Commissioner to request information
from the Secretary of the Department and the CEO of the Quality Agency for the
purposes of the Commissioner's functions. The substance of subsections 95A-1(3)
and (4) is unchanged.
10
Schedule 1 - Amendments
Items 18, 20, 21, 22, 23, 24, 25, 27 and 28
These items make minor amendments to change references in Division 95A to the
Aged Care Commissioner to the Aged Care Complaints Commissioner. These
changes are required due to the name change of the Commissioner by item 15
above. References are changed in the following provisions of the Aged Care Act:
subsections 95A-1(3) and (4) (item 18);
sections 95A-2, 95A-3, 95A-4, 95A-5, 95A-6, 95A-7, 95A-8, 95A-9 and 95A-10
(item 20);
section 95A-11 (heading) and section 95A-11 (items 21 and 22);
section 95A-11A (heading) and section 95A-11A (items 23 and 24);
subsection 95A-12(1) (item 25); and
subsection 96-2(2) (heading) and subsection 96-2(2) (items 27 and 28).
Item 19: At the end of section 95A-1
This item adds new subsections 95A-1(5) and (6), which allow the Secretary of the
Department and the CEO of the Quality Agency to request information from the
Commissioner for the purposes of their functions. The intention of these subsections
is to mirror the existing subsections 95A-1(3) and (4) so that information can be
passed between the Secretary, the Commissioner and the Quality Agency as
necessary to perform their functions.
Item 26: Subsection 95A-12(2)
Section 95A-12 currently sets out the matters that must be included in the
Commissioner's annual report. This item repeals the existing subsection (2)
and substitutes a new subsection (2) that provides the report must include any
information required by the Commissioner Principles.
Items 29 and 30: Clause 1 of Schedule 1
These items make changes to definitions in Schedule 1 (the Dictionary) of the Aged
Care Act.
Consistent with the change in title of the Commissioner, items 29 and 30 amend the
definition of Aged Care Commissioner so it now refers to the Aged Care
Complaints Commissioner.
Item 30 also inserts new definitions of authorised complaints officer and
complaints powers into the Dictionary of the Aged Care Act. An authorised
complaints officer has the meaning given by subsection 94B-1(1), and complaints
powers has the meaning given by section 94B-2.
11
Schedule 1 - Amendments
Amendments to the Quality Agency Act
Items 31, 32 and 33: Section 3, Section 3 (definition of Aged Care
Commissioner) and Paragraph 49(h)
Consistent with the change in title of the Aged Care Commissioner to the Aged Care
Complaints Commissioner, these items make consequential amendments to the
Quality Agency Act so references to the Aged Care Commissioner are replaced with
references to the Aged Care Complaints Commissioner.
Part 2 - Transitional provisions
Item 34: Complaints Principles may deal with transitional matters
This item provides that the Complaints Principles may deal with matters of a
transitional nature relating to amendments made by this Bill. For example,
transitional provisions may deal with the management of complaints that are being
dealt with by the Secretary or examined by the Commissioner at the time this Act
commences.
12
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
AGED CARE AMENDMENT
(INDEPENDENT COMPLAINTS ARRANGEMENTS) BILL 2015
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 Aged Care Amendment (Independent Complaints Arrangements) Bill 2015
amends the Aged Care Act 1997 to transfer responsibility for the management and
resolution of complaints and other concerns about aged care services provided by
approved providers (managed administratively through the Aged Care Complaints
Scheme) from the Secretary of the Department of Social Services to the Aged Care
Commissioner.
The Bill describes the removal of the existing review functions of the Aged Care
Commissioner in relation to certain decisions made by the Secretary under the
Complaints Principles. The Bill also describes the removal of the Commissioner's
review functions in relation to the Secretary's processes for handling complaints
under the Complaints Principles, and certain processes of the Australian Aged Care
Quality Agency. The Bill also changes the title of the Aged Care Commissioner to
the Aged Care Complaints Commissioner.
Human rights implications
The Bill engages the following human rights:
the right to an adequate standard of living;
the right to the enjoyment of the highest attainable standard of physical and
mental health; and
the right to protection from exploitation, violence and abuse.
Standards of living and health
The Bill engages the right to an adequate standard of living and the right to the
enjoyment of the highest attainable standard of physical and mental health,
as contained in article 11(1) and article 12(1) of the International Covenant on
Economic, Social and Cultural Rights, and article 28 and article 25 of the Convention
on the Rights of Persons with Disabilities (CRPD).
1
Statement of compatibility with human rights
Protection from exploitation, violence and abuse
The Bill engages the right to protection from exploitation, violence and abuse,
as contained in article 20(2) of the International Covenant on Civil and Political
Rights, article 19(1) of the Convention on the Rights of the Child and article 16(1)
of the CRPD.
The transfer of responsibility for complaints management to a statutory office-holder
independent of the department which performs the role of subsidiser and regulator
enhances human rights by ensuring there is no perceived 'conflict of interest' in the
handling of complaints, and further protects consumers from exploitation, violence
and abuse.
Further protections for consumers arise as complaints about the handling of
complaints can be referred to the Commonwealth Ombudsman.
Conclusion
The Bill is compatible with human rights as it promotes the human rights to an
adequate standard of living, the highest attainable standard of physical and mental
health and protection from exploitation, violence and abuse.
[Circulated by the authority of the Assisant Minister for Social Services,
Senator the Hon Mitch Fifield]
2