Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
AGED CARE AND OTHER LEGISLATION AMENDMENT (ROYAL
COMMISSION RESPONSE NO.2) Bill 2021
ADDENDUM TO THE REVISED EXPLANATORY MEMORANDUM
This addendum responds to concerns raised by the Senate Standing Committee for the
Scrutiny of Bills in Scrutiny Digest No. 17 of 2021, dated 24 November 2021.
(Circulated by authority of the Minister for Senior Australians and Aged Care Services,
Senator the Hon Richard Colbeck)
AGED CARE AND OTHER LEGISLATION AMENDMENT (ROYAL
COMMISSION RESPONSE NO. 2) Bill 2021
NOTES ON CLAUSES
Insert new paragraphs at the end of Item 51 - Subsection 96-2(14), Schedule 1 -
Residential aged care funding:
Part 2.3 of the Act deals with approval of a person as a recipient of one or more of residential
care, home care, and flexible care. Under section 22-4 of the Act, before deciding whether to
approve a person under Part 2.3, the Secretary must ensure the care needs of the person have
been assessed.
The assessment, and the subsequent decision about whether a person is eligible to be
approved as a recipient of care, is a highly specialised task requiring health professional
expertise. Since the commencement of the Act, this task has appropriately been performed,
under delegation, by the personnel of Aged Care Assessment Teams (ACAT) within Aged
Care Assessment Organisations. Delegates are health sector employees of state or territory
governments. This continues an arrangement that pre-dates the Act itself.
The delegation is currently set out in the Aged Care Act (Secretary) Delegation (No.3) 2021,
which limits the subsection 96-2(14) delegation to a Medical Practitioner, Registered Nurse,
Social Worker, Occupational Therapist, Physiotherapist, Other Health Professional or
Psychologist employed by a listed ACAT.
The assessment tools and procedures that delegates rely on are developed by the Department
of Health. Delegates undertake role-specific training when commencing in the role and
subsequent annual refresher training.
Insert new paragraphs after the third paragraph under Item 4 - After section 7, Schedule 2 -
Screening of aged care workers, and governing persons, of approved providers:
In making a determination under new section 7A, the Minister must have the agreement of
the state or territory that has passed the law being specified. It is necessary and appropriate to
provide that determinations made under new section 7A not be subject to disallowance.
Further, if a determination made under new section 7A were open to disallowance, there
would be a risk of having no legislative basis in place to give effect to aged care worker
screening, including providing for the results of worker screening checks conducted under a
particular state or territory's legislation to be included in the Aged Care Screening Database.
Among other things, if such a determination were disallowed, this would severely limit the
Commissioner's ability to ensure compliance with new paragraph 63-1(1)(la) of the Act.
As anticipated by new paragraph 63-1(1)(la), the Accountability Principles 2014 will be
amended to include requirements relating to the screening of aged care workers and
governing persons. It is intended that these requirements will include screening in accordance
with any 'aged care screening laws'. Should a determination under new section 7A be
disallowed, there would be no legislative basis under the Accountability Principles for
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requiring approved providers operating in a particular state or territory jurisdiction to ensure
their aged care workers and governing persons had been screened in accordance with the
applicable state or territory legislation. This could negatively impact the safety, health and
wellbeing of care recipients.
Insert new paragraphs at the end of Item 9 - After section 18, Schedule 3 - Code of
conduct and banning orders:
The Code will be based on the NDIS Code of Conduct, with modifications to ensure it is
relevant to the aged care sector. Bringing the Code into effect through subordinate legislation
is consistent with the approach taken in the NDIS, whereby the NDIS Code of Conduct is
specified in the National Disability Insurance Scheme (Code of Conduct) Rules 2018.
The Code is being developed in consultation with stakeholders. Stakeholder input will be
sought into the content and operation of the draft Code. A consultation paper was released on
16 November 2021, and targeted stakeholder forums are being held. There will be
opportunities for aged care providers, aged care workers and consumers, as well as
stakeholders from the broader care and support sector, to contribute. Submissions close on 10
December 2021. It is therefore expected that the final draft Code will reflect a broad
consensus view of the types of matters that should be included.
This Bill provides that the Aged Care Quality and Safety Commission (ACQSC) Rules 2018
(Rules) may establish a scheme for dealing with information given to the Commissioner
relating to a failure by an approved provider, or an aged care worker or governing person of
an approved provider, to comply with the Code. This approach is consistent with the
approach taken in relation to equivalent functions and powers of the Commissioner under the
ACQSC Act, including with respect to the procedural aspects of the Commissioner's
complaints functions (see, for example, Part 2 of the Rules).
It is appropriate that the scheme for dealing with suspected breaches of the Code is dealt with
in subordinate legislation as the arrangements will expand upon the operational detail of
processes and procedures to deal with suspected breaches of the Code. While the
implementation of the Code is in its initial stages, it is also appropriate to include these
matters in delegated legislation to ensure there is the ability to promptly respond to
unforeseen implementation issues and sector feedback and ensure there are timely responses
to matters affecting the safety, health and wellbeing of care recipients.
Insert new paragraphs after the fourth paragraph under Section 74GC, Item 25 - At the end of
Part 8A, Schedule 3 - Code of conduct and banning orders:
The ability to impose conditions allows a more targeted regulatory response to ensure the
most appropriate measures are in place to safeguard the health, safety and wellbeing or care
recipients. The decision to subject an aged care worker, or governing person, of an approved
provider to a banning order is one of the most serious regulatory actions the Commissioner
can take.
The discretion to impose conditions on a banning order will allow for a more nuanced
approach and enable the Commissioner to be flexible and tailor banning orders to the specific
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circumstances of each case. In some cases, it would be beneficial if the Commissioner could
require the subject of the banning order to undertake action to remedy identified deficits in
the way they have provided care or services to care recipients.
The imposition of conditions can also provide greater safeguards where a banning order
restricts a person only from providing particular types of care, for example, from providing
direct care but not from providing indirect care services, such as working in an administrative
or clerical role which involves no direct contact with care recipients. The condition might be
that the aged care worker provides a copy of the banning order with this restriction to each
prospective employer. In these circumstances, this will provide greater certainty for care
recipients and approved providers that the person subject to the banning order will not be
working in a direct care role.
It is appropriate not to specify the nature of the conditions in the primary legislation to allow
for flexibility and appropriate tailoring to the specific circumstances of the banning order.
Insert new paragraphs after the second paragraph under Section 74GD, Item 25 - At the end
of Part 8A, Schedule 3 - Code of conduct and banning orders:
A banning order will only be imposed after other possible compliance responses have been
considered. The imposition of a civil penalty for breach of a banning order or condition under
the banning order is intended both to act as a deterrent and safeguard the safety and wellbeing
of care recipients. Although it is acknowledged that often a breach of a banning order is more
serious than breach of a condition, there are instances in which a breach of a condition can be
very serious and could justify the imposition of a significant civil penalty.
It is understood that in applying any civil penalty for a breach of a condition of a banning
order, a court would impose a penalty that is commensurate with the overall impact of the
breach in question, with due regard to circumstances in relation to the breach.
The application of a civil penalty is necessary as a further deterrent for an aged care worker
who has a banning order in place to meet any conditions and to re-enforce that there is no
tolerance for behaviour or actions that pose an unacceptable risk of harm to care recipients.
Protecting and safeguarding care recipients from the risk of harm is the highest priority.
Insert new paragraphs after the fourth paragraph under Section 74GI, Item 25 - At the end of
Part 8A, Schedule 3 - Code of conduct and banning orders:
In order to ensure that the register functions properly, it is considered necessary for the rules
to provide personal information of banned individuals to be made public. This is due to the
importance of preventing banned individuals from working in the aged care sector and the
potential significant consequences for public health if this does not happen. It is important to
note that this would only extend to personal information that is reasonably necessary to
identify the individual concerned to ensure they are not employed in roles within the aged
care sector that may cause harm to care recipients. It is appropriate to retain flexibility in this
regard as such a register has not been created or used previously in the aged care sector and
this would allow the register to adapt to the needs of the Commissioner over time.
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