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
HOUSE OF REPRESENTATIVES
AGED CARE LEGISLATION AMENDMENT (SERIOUS INCIDENT
RESPONSE SCHEME AND OTHER MEASURES) BILL 2020
ADDENDUM TO THE EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Senior Australians and Aged Care Services,
Senator the Hon Richard Colbeck)
AGED CARE LEGISLATION AMENDMENT (SERIOUS INCIDENT
RESPONSE SCHEME AND OTHER MEASURES) BILL 2020
This addendum responds to concerns raised by the Senate Standing Committee for the
Scrutiny of Bills in Scrutiny Digests 18 of 2020 and 1 of 2021.
After the paragraph commencing 'New subsection 54-3(7)', insert:-
The Quality of Care Principles will specify matters such as the timeframes and
actions required when notifying the Commissioner of reportable incidents and
the details of notices on reportable incidents.
These matters will go into the minutiae of notification arrangements such as
the specific details to be provided in the notice, including the name, position
and contact details of the person giving the notice. It is considered appropriate
that these matters be dealt with in delegated legislation as they relate to
operational matters such as process and procedures.
The Quality of Care Principles will also further define and provide
clarification on the terms in new subsection 54-3(2) and specify where an
incident is, or is not, a reportable incident despite that new subsection. The
Quality of Care Principles are proposed to provide clarity of the terms by
using concepts to identify what the terms include, and by providing scenarios
of what these would and would not entail. The Quality of Care Principles are
also proposed to specify where an incident covered by new subsection 54-3(2)
is not a reportable incident. This is also proposed to be achieved using
concepts or classes, for example where a residential care recipient refuses to
receive care or services from an approved provider and has sufficient
cognitive function to make that decision. If these matters were dealt with in
primary legislation it is likely that, in an attempt to capture all scenarios, the
definitions would become highly complex and therefore difficult to interpret
and implement.
Including matters in delegated legislation will allow for responsiveness in
relation to incidents in residential aged care services. As these arrangements
are intended to ensure the reporting of abuse and neglect in residential aged
care, it is appropriate that these aspects of the SIRS can be adapted and
modified in a timely manner. Allowing some flexibility to promptly respond to
unforeseen risks, concerns and omissions aligns with community expectations
and the key aim of the SIRS which is to protect older Australians from abuse
and neglect.
After the paragraph commencing 'New subsection 21(7)', insert:-
The Rules will specify how the Commissioner deals with matters in relation to
reportable incidents. This may include requests for further information or a
final report, undertaking inquiries or investigations, approving forms and other
actions by the Commissioner, for example referral to police or requesting a
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provider to take remedial action to ensure the health, safety and wellbeing of
residential care recipients.
It is considered reasonable that these matters be dealt with in delegated
legislation as they relate to operational matters such as process and
procedures. Including these arrangements in delegated legislation will allow
flexibility to respond to unforeseen issues and respond to community and
sector concerns in a timely manner. As these matters relate to actions taken in
response to reportable incidents it is appropriate (including from a community
expectations perspective) that there is flexibility for the Commissioner to take
appropriate and prompt action in response to any unforeseen matters. It is
intended that the Australian Government's ability to undertake such actions
will prevent the abuse and neglect of older Australians.
The Australian Government has undertaken significant consultation on the
arrangements under the SIRS. This includes engagement with key
stakeholders from the aged care sector on the details of the Bill and what is
proposed for delegated legislation. Further, communications and guidance are
being prepared and are proposed to be issued across the sector prior to
commencement of the SIRS, and will include details on these matters. As
such, the Australian Government does not consider it necessary to amend the
Bill to include high-level guidance on these matters. These arrangements are
intended to be broad to enable appropriate flexibility for the Commissioner to
ensure the safety needs of older Australians.
After the paragraph commencing 'Item 1 inserts new sections 74EA, 74EB, 74EC and
74ED', insert:-
New sections 74EA to 74ED introduce new enforcement powers and functions
for the Commissioner by making certain provisions in the Aged Care Act and
the Quality and Safety Commission Act subject to enforcement under the
Regulatory Powers Act.
Existing delegation arrangements under subsection 76(1) of the Quality and
Safety Commission Act apply to these new powers and functions. Under
subsection 76(1) the Commissioner may delegate to a member of staff of the
Commission all or any of the Commissioner's functions or powers under the
Quality and Safety Commission Act (except for the powers and functions
under Part 7B).
Subsection 76(1B) of the Quality and Safety Commission Act provides that
the Commissioner must not delegate a function or power under
subsection 76(1), unless the Commissioner is satisfied that the person has
suitable training or experience to properly perform the function or exercise the
power.
As such, when the Commissioner delegates the new powers and functions
under new sections 74EA, 74EB, 74EC, and 74ED, they are expressly
required to be satisfied that the delegate has suitable training or experience to
exercise the relevant powers and functions.
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In addition to the requirement under subsection 76(1B), in accordance with
internal policy arrangements, the Commissioner will also determine which
persons are best qualified to make particular decisions or to exercise the
particular powers prior to making a delegation.
Further, being able to delegate powers is necessary to effectively and
efficiently manage the volume of work of the Commission and ensure the
quality of Commonwealth funded aged care services and the safety of
individuals in care. Time is a factor that could make a significant difference to
the health, safety, wellbeing and quality of life of a recipient of aged care
services, especially if the non-compliance relates to the quality of care
provided.
After the paragraph commencing 'Existing delegation arrangements under
subsection 76(1) of the Quality and Safety Commission Act will apply in relation to
new section 74EE', insert:-
Under subsection 76(1) the Commissioner may delegate to a member of staff
of the Commission all or any of the Commissioner's functions or powers
under the Quality and Safety Commission Act (except for the powers and
functions under Part 7B).
Subsection 76(1B) of the Quality and Safety Commission Act provides that
the Commissioner must not delegate a function or power under
subsection 76(1), unless the Commissioner is satisfied that the person has
suitable training or experience to properly perform the function or exercise the
power.
As such, when the Commissioner delegates the new powers under new
section 74EE, they are expressly required to be satisfied that the delegate has
suitable training or experience to exercise the relevant powers and functions.
In addition to the requirement under subsection 76(1B), in accordance with
internal policy arrangements, the Commissioner will also determine which
persons are best qualified to make particular decisions or to exercise the
particular powers prior to making a delegation.
Further, being able to delegate powers is necessary to effectively and
efficiently manage the volume of work of the Commission and ensure the
quality of Commonwealth funded aged care services and the safety of
individuals in care. Time is a factor that could make a significant difference to
the health, safety, wellbeing and quality of life of a recipient of aged care
services, especially if the non-compliance relates to the quality of care
provided.
After the paragraph commencing 'The Guide to Framing Commonwealth Offences',
insert:-
Existing delegation arrangements under subsection 76(1) of the Quality and
Safety Commission Act will apply in relation to new section 74GA.
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Under subsection 76(1) the Commissioner may delegate to a member of staff
of the Commission all or any of the Commissioner's functions or powers
under the Quality and Safety Commission Act (except for the powers and
functions under Part 7B).
Subsection 76(1B) of the Quality and Safety Commission Act provides that
the Commissioner must not delegate a function or power under
subsection 76(1), unless the Commissioner is satisfied that the person has
suitable training or experience to properly perform the function or exercise the
power.
As such, when the Commissioner delegates the new powers under new
section 74GA, they are expressly required to be satisfied that the delegate has
suitable training or experience to exercise the relevant powers and functions.
In addition to the requirement under subsection 76(1B), in accordance with
internal policy arrangements, the Commissioner will also determine which
persons are best qualified to make particular decisions or to exercise the
particular powers prior to making a delegation.
Further, being able to delegate powers is necessary to effectively and
efficiently manage the volume of work of the Commission and ensure the
quality of Commonwealth funded aged care services and the safety of
individuals in care. Time is a factor that could make a significant difference to
the health, safety, wellbeing and quality of life of a recipient of aged care
services, especially if the non-compliance relates to the quality of care
provided.
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