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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AGED CARE LEGISLATION AMENDMENT (EMERGENCY LEAVE) BILL
2020
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Aged Care and Senior Australians,
Senator the Hon Richard Colbeck)
AGED CARE LEGISLATION AMENDMENT (EMERGENCY LEAVE) BILL 2020
OUTLINE
The Aged Care Legislation Amendment (Emergency Leave) Bill 2020 (the Bill), amends
the Aged Care Act 1997 (the Aged Care Act) and the Aged Care (Transitional Provisions)
Act 1997 (the Transitional Provisions Act) to introduce a new type of leave that will enable
approved providers to remain eligible for residential care subsidy in declared emergency
situations. The Bill will ensure that approved providers cannot decide to charge aged care
residents a fee during a declared emergency in order to reserve their place in an aged care
service. These emergency situations may include natural disasters, pandemics or other
large-scale emergencies that may impact the safe provision of residential aged care and the
safety of the resident.
Once an emergency situation has been determined, the leave will be applied to a specific
area (e.g. national, state/territory, aged care planning or other region, or an individual
service) and for a specified time period.
By enabling approved providers to remain eligible for aged care subsidy in certain
emergency circumstances, the Australian Government will reduce any financial pressure
that may be placed on aged care residents who may currently be subject to a fee to reserve
their place in a facility, if they have taken 52 days of non-hospital related (social) leave.
Currently, under the Aged Care Act and the Transitional Provisions Act, once a care
recipient has been on leave from a residential care service (where that leave is not hospital
leave or for the provision of flexible care) in excess of 52 days in a single financial year, the
approved provider is no longer eligible for residential care subsidy in respect of that person.
It is then open for an approved provider to charge the care recipient a fee to reserve their
place in the service. The Aged Care Act and the Transitional Provisions Act currently set a
maximum amount for the fee that may be charged.
The amendments will allow aged care recipients to take leave from their residential aged
care service during an emergency without having to pay any additional fees in order to
maintain their place in a facility..
The Government has overarching policy responsibility for delivery of aged care services
across the country, through an end-to-end system covering both residential and in-home
aged care. As part of this, the Government is committed to ensuring that permanent
residential aged care residents are appropriately supported and feel comfortable and safe in
their living environment.
Financial Impact Statement
There is no financial impact for the Commonwealth by the proposed amendments. Any
costs associated with updates to the aged care payments system, will be funded from
existing programs.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act
2011
AGED CARE LEGISLATION AMENDMENT (EMERGENCY LEAVE) BILL 2020
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 Legislation Amendment (Emergency Leave) Bill 2020 (the Bill) amends the
Aged Care Act 1997 (the Aged Care Act) and the Aged Care (Transitional Provisions) Act
1997 (the Transitional Provisions Act) to introduce an emergency leave type that will enable
approved providers to remain eligible for residential care subsidy in declared emergency
situations and ensure approved providers cannot decide to charge aged care residents a fee
during a declared emergency to reserve their place in an aged care service. These emergency
situations may include natural disasters, pandemics or other large-scale emergencies that
can may impact the safe provision of residential aged care and the safety of the resident.
This emergency leave will be available once the Minister has determined that an emergency
situation exists (such as during disasters (natural or otherwise), epidemics or pandemics) for
a specific area (e.g. national, state/territory, aged care planning or other region, or an
individual service) and for a specified time period.
Human rights implications
The Bill engages the following human rights as contained in article 11 and article 12(1) of
the International Convention on Economic, Social and Cultural Rights (ICESCR) and
articles 25 and 28 of the Convention of the Rights of Persons with Disabilities (CRPD):
the right to an adequate standard of living, including with respect to food, clothing and
housing, and to the continuous improvement of living conditions; and
the right to the enjoyment of the highest attainable standard of physical and mental
health.
The UN Committee on Economic Social and Cultural Rights (the Committee) has stated
that the right to health is not a right for each individual to be healthy, but is a right to a
system of health protection which provides equality of opportunity for people to enjoy the
highest attainable level of health.
Under the Charter of Aged Care Rights, all people receiving Australian Government
funded aged care services have the right to be treated with dignity and respect, and be able
to make their own choices about their care.
Emergency situations are distressing, particularly for residents of aged care homes and
their families who rely on their surroundings and care staff for assurance they are secure
and protected. It is natural in emergency situations for there to be changes in the way care
is delivered, such as staff changes, food served or new physical surrounds (e.g. moving to a
new room for quarantine purposes during an epidemic or pandemic). These changes in
routine can cause high levels of stress for individual residents, leading to concern from
families about the impact on a resident's physical and mental health and wellbeing.
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Therefore, if residents of families are concerned about their care, or the safety of their
living environment, they have the right to relocate to another temporary residence if they
wish to.
Under the Aged Care Act and the Transitional Provisions Act, once a care recipient has
been on leave from a residential care service (where that leave is not hospital leave or for
the provision of flexible care) in excess of 52 days in a single financial year, the approved
provider is no longer eligible for residential care subsidy in respect of that person. It is then
open for an approved provider to charge the care recipient a fee to reserve their place in the
service. The Aged Care Act and the Transitional Provisions Act currently set a maximum
amount for the fee that may be charged.
By enabling approved providers to remain eligible for aged care subsidy in certain
emergency circumstances, the Australian Government will reduce any financial pressure
that may be placed on aged care residents who may currently be subject to a fee to reserve
their place in a facility if they have taken 52 days of non-hospital related (social) leave.
Assisting an aged care recipient to reserve their place in a facility by reducing the potential
economic burden will enable aged care residents to maintain an adequate standard of living
once the emergency period has ended.
It is important to ensure that permanent aged care residents are appropriately supported and
feel comfortable and safe in their living environment. This is particularly important in
difficult or challenging situations, such as large-scale emergencies that are outside the
control of residents (e.g. COVID-19). These are basic rights which align with the ICESCR
and the CRPD. The amendments to the Aged Care Act and the Transitional Provisions Act
intend to support these rights.
Conclusion
The 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 as it promotes the human right of everyone, including those with a disability, to
the enjoyment of the highest attainable standard of physical and mental health and, the right
to an adequate standard of living, including with respect to food and housing and continuous
improvement of living conditions.
Senator the Hon Richard Colbeck, Minister for Aged Care and Senior Australians
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AGED CARE LEGISLATION AMENDMENT (EMERGENCY LEAVE) BILL 2020
NOTES ON CLAUSES
Clause 1 - Short Title
Clause 1 provides that this Bill, once enacted, may be cited as the Aged Care Legislation
Amendment (Emergency Leave) Act 2020.
Clause 2 - Commencement
This clause sets out that the Bill commences on, or is taken to have commenced on, the day
this Act receives the Royal Assent.
Clause 3 - Schedule
This clause provides that each Act that is specified in a Schedule to this Bill is amended or
repealed as set out in the applicable items in the Schedule concerned, and any other item has
effect according to its terms. This is a technical provision which gives operational effect to
the amendments contained in the Schedule. Schedule 1 amends both the Aged Care Act and
the Transitional Provisions Act.
SCHEDULE 1 -- AMENDMENTS
Part 1 - Amendments
Aged Care Act 1997
Item 1 - After paragraph 42-2(3)(b)
This item inserts new paragraph 42-2(3)(ba), which provides, in the context of
subsection 42-2(3), that a care recipient will be on leave from a residential care service for
the purposes of social leave if the care recipient is not on leave under new
subsection 42-2(3B) on that day.
New subsection 42-2(3B), inserted by Item 2 to the Bill, introduces a new type of leave,
being emergency leave. New paragraph 42-2(3)(ba) will prevent a care recipient's allocated
52 days of social leave from being depleted where emergency leave is made available.
Item 2 - After subsection 42-2(3A)
This item inserts new subsection 42-2(3B), which outlines the criteria of the new emergency
leave type that must be met if the resident is taken to be on emergency leave. A care
recipient will be on emergency leave from a residential care service (referred to as the
affected service) on a day if:
during the whole of that day, the care recipient is absent from the affected service;
and;
either
o the care recipient does not attend a hospital for the purpose of receiving
hospital treatment during that day; or
o the care recipient does attend a hospital for the purpose of receiving hospital
treatment during that day, and the day is before the day on which the care
recipient enters the affected service; and
the Minister determines under new subsection 42-2A(1) that there is a situation of
emergency for that day for the affected service or a class of residential care services
that includes the affected service.
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Item 3 - Subsection 42-2(4)
This item amends the wording of subsection 42-2(4) to make clear that the new emergency
leave type (as per subsection 42-2(3B)) does not apply to residential respite care.
Residential respite provides short-term care in aged care homes to people who have been
assessed and approved to receive it. The primary purpose of residential respite is to give a
carer or care recipient a break from their usual care arrangements. Given the short-term
nature of respite care, care recipients are not eligible for leave. As such, it is not the policy
intention of residential respite care for emergency leave, or any type of leave, to be available
to these care recipients.
If an individual is receiving residential respite at the time an emergency is declared, and
they are not able to, or willing to, remain at the residential care service, they could be
transferred to another appropriate facility for the duration of their respite care agreement or
cease their agreement altogether and return home to their normal circumstances.
Item 4 - After subsection 42-2
This item inserts new subsection 42-2A, which sets out the criteria to determine situations of
emergency to enable additional leave.
Subsection 42-2A(1)
New subsection 42-2A(1) gives the Minister for Aged Care and Senior Australians the
authority to determine in writing that there is a situation of emergency for a specified day
for a residential care service, or a class of residential care services, if the Minister is
satisfied that an emergency is affecting or has affected the service or services for that day, or
the community in which the service or services are located for that day.
A note to new subsection 42-2A(1) provides that an emergency affecting a residential care
service or community may include a disaster (whether natural or otherwise), an epidemic or
a pandemic, although these examples are not exclusive of other situations of emergency
which may arise. Once this determination has been made, the emergency leave is available
and can be utilised by residents.
A decision to make, or refuse to make, a determination that there is a situation of emergency
under subsection 42-2A(1) is not a reviewable decision under section 85-1 of the Aged Care
Act. This is because, if the determination is a legislative instrument under new
subsection 42-2A(3), the determination would be subject to rigorous parliamentary scrutiny.
Additionally, it is considered that a decision to make, or refuse to make, a determination
under subsection 42-2A(1) in this instance is one that is not directed towards the
circumstances of particular persons, but applies generally to a class of residential care
services. As such, it is considered it is a decision that is not suitable for review.
The decision to make, or refuse to make, a determination under subsection 42-2A(4) relating
to a particular residential care service is also not a reviewable decision. It is intended that
the power to make a determination under subsection 42-2A(4) would only be utilised in
very specific situations of emergency that would only effect a singular residential care
service, or a selection of residential care services, that would be impacted by a discreet
event that could be classified as a situation of emergency.
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For example, if an approved provider goes into liquidation and this is declared an
emergency, this emergency would only affect those residential care services operated by the
provider. As such, it would be of no utility to enable reviewability of such a determination,
given that is it likely to only apply to a particular residential care service to whom the
situation of emergency relates.
Once a determination has been made, any interested parties (such as an approved provider
near the border of a specified community in a determination) may choose to write to the
Minister to reconsider the parameters of a determination. The Minister may choose to
repeal, amend or vary a determination as a result.
Subsection 42-2A(2)
New subsection 42-2A(2) provides that, for the purposes of a determination made under
new subsection 42-2A(1), a class of residential care services may include all residential care
services in Australia. A class could be geographical (for example, all services across
Australia or only services in NSW) or service specific (for example, homes on a particular
street or within one suburb).
New subsection 42-2A(2) also provides that a day for which a situation of emergency is
determined may be a day that is before, on or after the day the determination is made. In
practice, this means that the period for which a situation of emergency is determined could
be entirely before the date the determination is made (noting that this is subject to Item 10 to
the Bill). For example, a determination is made on 1 July setting out that a situation of
emergency is determined for the period of 1 April to 28 May for all residential care services
in Australia. This is to allow for retrospective payments of residential care subsidy to be
made to affected services for a care recipient who is taking emergency leave.
Subsection 42-2A(3)
New subsection 42-2A(3) provides that a determination made under subsection 42-2A(1) for
a class of residential care services is a legislative instrument..
Subsection 42-2A(4)
New subsection 42-2A(4) provides that a determination made under subsection 42-2A(1) for
a particular residential care service is not a legislative instrument, but must be published on
the Department's website. This provision clarifies that the instrument is not a legislative
instrument within the meaning of subsection 8(1) of the Legislation Act 2003.
Further, where a determination is made for multiple identified residential care services
under subsection 42-2A(1), this determination would not be a legislative instrument and as
such is covered by subsection 42-2A(4). This is because the determination would identify a
collection of singular residential care services, which is permissible on the basis that the
singular language used in the provision includes the plural (see paragraph 23(b) of the Acts
Interpretation Act 1901).
Subsection 42-2A(5)
New subsection 42-2A(5) enables the Minister for Aged Care and Senior Australians to
delegate the power to make a determination under subsection 42-2A(1) to the Secretary of
the Department of Health. As the Minister is delegating power to the Secretary under this
subsection, no further delegation under section 96-2 of the Aged Care Act is permissible. In
exercising a power under new subsection 42-2A(1), the Secretary must comply with any
directions that have been made by the Minister.
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By taking emergency leave, permanent aged care residents and their families will not suffer
any unnecessary financial burden by taking leave during critical times. The availability of
this leave type will ensure that, following an emergency, residents are still able to use their
remaining allocation of social leave to maintain their normal visiting and special events
routine with their families without being subject to additional fees. Further, the availability
of emergency leave will also ensure that residential aged care providers are not financially
disadvantaged, as they will be able to continue to claim a subsidy for the duration of the
care recipient's leave.
Item 5 - Paragraph 52C-5(b)
Section 52C-5 of the Aged Care Act permits a residential care service to charge a maximum
daily amount of resident fees for reserving a place in the service if certain criteria are met.
This item omits paragraph 52C-5(b) and replaces it with new paragraphs 52C-5(b)
and 52C-5(ba). These new paragraphs have the effect that a fee may only be charged if a
care recipient is absent from a residential care service on a particular day, and has had more
than the 52 days of social leave in a financial year permitted under paragraph 42-2(3)(c),
and no other leave provision applies. The cumulative nature of the provision means that all
criteria must be met before resident fees may be charged under section 52C-5.
As such, people who are accessing emergency leave (under new subsection 42-2(3B)) will
not be charged additional fees to replace Commonwealth subsidy.
Aged Care (Transitional Provisions) Act 1997
Item 6 - After paragraph 42-2(3)(b)
With the same intent as item 1 above, this item inserts new paragraph 42-2(3)(ba) to the
Transitional Provisions Act, which provides, in the context of subsection 42-2(3), that a care
recipient will be on leave from a residential care service for the purposes of social leave if
the care recipient is not on leave under new subsection 42-(2)(3B) on that day.
New subsection 42-2(3B), inserted by Item 7 to the Bill, introduces a new type of leave,
being emergency leave. New paragraph 42-2(3)(ba) will prevent a care recipient's allocated
52 days of social leave from being depleted where emergency leave is made available.
Item 7 - After subsection 42-2(3A)
This item replicates the intent of new subsection 42-2(3B) of the Aged Care Act in Item 2 to
the Bill, and adds a new subsection 42-2(3B) to the Transitional Provisions Act.
New subsection 42-2(3B) outlines the criteria of the new emergency leave type that must be
met if the resident is taken to be on emergency leave. A care recipient will be on emergency
leave from a residential care service (referred to as the affected service) if on a day if:
during the whole of that day, the care recipient is absent from the affected service;
and;
either
o the care recipient does not attend a hospital for the purpose of receiving
hospital treatment during that day; or
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o the care recipient does attend a hospital for the purpose of receiving hospital
treatment during that day, and the day is before the day on which the care
recipient enters the affected service; and
the Minister determines under subsection 42-2A(1) of the Aged Care Act that there
is a situation of emergency for that day for the affected service or a class of
residential care services that includes the affected service.
Item 8 - Subsection 42-2(4)
With the same intent as item 3 above, this item amends the wording of subsection 42-2(4) in
the Transitional Provisions Act to make clear that the new emergency leave type (as per
subsection 42-2(3B)) does not apply to residential respite care.
Item 9 - Paragraph 58-6(b)
Section 58-6 of the Transitional Provisions Act permits a residential care service to charge a
maximum daily amount of resident fees for reserving a place in the service if certain criteria
are met.
This item omits paragraph 58-6(b) and replaces it with new paragraphs 58-6(b)
and 58-6(ba). These new paragraphs have the effect that a fee may only be charged if a care
recipient is absent from a residential care service on a particular day, and has had more than
the 52 days of social leave in a financial year permitted under paragraph 42-2(3)(c), and no
other leave provision applies. The cumulative nature of the provision means that all criteria
must be met before resident fees may be charged under section 58-6.
As such, people who are accessing emergency leave (under new subsection 42-2(3B)) will
not be charged additional fees to replace Commonwealth subsidy.
Part 2 - Application of amendments
Item 10 - Emergency determinations may be in force for days occurring before
commencement
Item 10 provides that a determination may be made under new subsection 42-2A(1) of the
Aged Care Act for a day that occurs before the commencement of the item, provided the day
does not occur before 1 April 2020.
This ensures that permanent aged care residents who took leave from their residential aged
care service from that date (due to the COVID-19 emergency) will be able to access the new
leave type from 1 April 2020 (where it is determined that a situation of emergency existed
on and from that date).
This item is intended to make clear that such a determination may prescribe a retrospective
period in which a situation of emergency existed. New section 42-2A of the Aged Care Act
is intended to have a beneficial operation to enable retrospective payments to be made to
providers for the determined period if necessary.
In turn, this will have the beneficial effect that aged care residents who are accessing
emergency leave (under new subsection 42-2(3B)) will not be charged additional fees to
replace Commonwealth subsidy, for the determined period, in circumstances where other
leave types do not apply or are not available to be used.
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