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2016-2017-2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AGED CARE (SINGLE QUALITY FRAMEWORK) REFORM BILL 2018
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Aged Care, the Hon Ken Wyatt AM, MP)
AGED CARE (SINGLE QUALITY FRAMEWORK) REFORM BILL 2018
OUTLINE
Purpose
The Bill amends the Aged Care Act 1997 (the Aged Care Act) and the Australian Aged
Care Quality Agency Act 2013 (the Quality Agency Act) to:
make provision for a single set of aged care quality standards (the Aged Care Quality
Standards), to be implemented in the Quality of Care Principles, that apply to all aged
care providers under the Aged Care Act; and
vary the functions of the Chief Executive Officer of the Australian Aged Care Quality
Agency (Quality Agency) to reference the Aged Care Quality Standards.
The Bill also amends the Freedom of Information Act 1982 (the FOI Act) to ensure that
documents containing protected information acquired by the Quality Agency in the course
of its functions are exempt from disclosure. The unauthorised disclosure of protected
information is a criminal offence.
Background
Implementing the Aged Care Quality Standards contributes to the establishment of a single
consolidated and streamlined quality framework for all aged care services as announced in
the 2015-16 Budget.
Under the existing quality framework, aged care providers funded under the Aged Care Act
and/or the Aged Care (Transitional Provisions) Act 1997 (the ACTP Act) Act are required
to meet one or more sets of aged care quality standards depending on the type of care that
the service delivers (set out in Division 54 of the Aged Care Act and the Quality of Care
Principles). These standards include:
accreditation standards for residential care;
home care standards for home care; and
flexible care standards for short term restorative care.
The Bill enables the implementation of the Aged Care Quality Standards that would replace
the existing standards applicable to residential, home and flexible care services.
Consultation
Since September 2015, the Department has been working closely with stakeholders to
develop the single quality framework.
As part of the consultation process, the Department has met with relevant Commonwealth
agencies and a wide range of stakeholders to seek input on the content of the quality
standards. Consultations have occurred with aged care sector committees, technical
advisory groups, industry and consumer stakeholder bodies, other Commonwealth agencies
(including the Department of Social Services, the National Disability Insurance Agency,
and the Australian Commission on Safety and Quality in Health Care). In addition, the
Department released a consultation paper on draft quality standards, titled 'Single Aged
Care Quality Framework - Draft Quality Standards Consultation Paper 2017' which
received over 200 submissions.
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There was support for a single set of standards, applicable across all aged care programs.
Stakeholders noted that this would reduce duplication of effort for providers delivering
more than one type of service and be of greater value to consumers.
However, there were questions raised about whether the proposed implementation date
from 1 July 2018 would be achievable, noting transitional arrangements need to provide
sufficient time for the sector to prepare, including modifying their current quality
frameworks and educating staff and consumers about the changes.
As a result of these concerns, a 12 month transition period is proposed through the
1 July 2019 commencement of the amendments in this Bill.
Financial Impact Statement
The Bill does not have a financial impact.
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Statement of Compatibility with Human Rights
This statement has been prepared in accordance with Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
AGED CARE (SINGLE QUALITY FRAMEWORK) REFORM BILL 2018
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.
Overview of the Bill
The Bill enables the implementation of the new Aged Care Quality Standards that will
apply to residential, home and flexible aged care services. The Bill exempts protected
information mentioned in Part 7 of the Quality Agency Act from disclosure under the FOI
Act.
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;
the right to protection from exploitation, violence and abuse; and
the right to not be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, nor to unlawful attacks on his honour and
reputation.
The Bill is compatible with 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 Convention on Economic, Social and
Cultural Rights, and articles 25 and 28 of the Convention of the Rights of Persons with
Disabilities.
The Aged Care Quality Standards focus on achieving quality outcomes for consumers by
enabling consumers and carers to influence the design and delivery of the services in order
to ensure that they are consistent with the consumer's preferences. The standards support
care recipients to achieve a high standard of living and high standards in their physical and
mental health.
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 and article 16 of
the Convention of the Rights of Persons with Disabilities. The standards are intended to
promote the delivery of quality aged care services by accredited approved providers. The
instrument is intended to increase protection for aged care residents against potential
exploitation, violence and abuse.
The Bill engages the right to not be subjected to arbitrary or unlawful interference with his
privacy, family, home or correspondence, nor to unlawful attacks on his honour and
reputation contained in article 17 of the International Covenant on Civil and Political
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Rights. The Bill supports the right to privacy by exempting protected information, which
can include personal information, from disclosure under the FOI Act.
Conclusion
The Aged Care (Single Quality Framework) Reform Bill 2018 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.
The Hon Ken Wyatt AM, MP, Minister for Aged Care
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AGED CARE (SINGLE QUALITY FRAMEWORK) REFORM BILL 2018
NOTES ON CLAUSES
Clause 1 - Short Title
This clause provides that the Bill, once enacted, may be cited as the Aged Care (Single
Quality Framework) Reform Act 2018.
Clause 2 - Commencement
This clause provides that the Bill will commence on 1 July 2019.
Clause 3 - Schedule
This clause provides that legislation that is specified in the Schedule to this Bill is amended
or repealed as set out in the applicable items in the Schedule concerned, and any other item
in a Schedule to this Bill has effect according to its terms.
SCHEDULE 1 - Amendments
Aged Care Act 1997
Item 1 - Paragraphs 54-1(1)(d) to (g)
This item specifies that approved providers of residential, home and flexible care services
are required to comply with the Aged Care Quality Standards.
This item repeals the requirement that approved providers of aged care services must
comply with the Accreditation Standards, Home Care Standards or Flexible Care
Standards, as relevant.
Item 2 - Sections 54-2 to 54-5
In relation section 54-2(1), while the Aged Care Act sets out the key responsibilities of
approved providers of aged care, the Act also provides for standards for the quality of care
and services which are set out in the Quality of Care Principles. This item repeals the
authorisation in the Act to set out Accreditation Standards, Home Care Standards and
Flexible Care Standards in the Quality of Care Principles and authorises standards to be
known as the Aged Care Quality Standards to be set out in the Quality of Care Principles.
In relation to section 54-2(2), the item preserves the operation of the current section54-5(2),
which allows different kinds of flexible care services to be required to comply with
different standards. For example, at present only approved providers of one type of flexible
care, Short Term Restorative Care, are required to comply with the Standards under the
Act.
Item 3 - Paragraph 86-9(1)(k)
Part 6.2 of the Aged Care Act is about protected information and the use and disclosure of
protected information. Under paragraph 86-9(1)(k) of the Aged Care Act, the Secretary of
the Department of Health may make public information about an aged care service
including about the service's accreditation record. A corresponding provision appears in
paragraph 52(1)(g) of the Quality Agency Act but this provision references a service's
status under both the Aged Care Act and the Quality Agency Act. This item amends
paragraph 89-1(1)(k) to consistently refer to both Acts.
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Australian Aged Care Quality Agency Act 2013
Item 4 - Section 3
Repeals the definition of Accreditation Standards.
Item 5 - Section 3
This item inserts a definition of Aged Care Quality Standards. The Aged Care Quality
Standards mean the Aged Care Quality Standards set out in the Quality of Care Principles
made under section 96-1 of the Aged Care Act.
Item 6 - Section 3
This item repeals the definition of Home Care Standards.
Item 7 - Paragraphs 12(a) and (b)
Paragraph 12(a) of the Quality Agency Act gives the CEO of the Quality Agency the
function of accrediting residential aged care services in accordance with the Quality
Agency Principles and the Accreditation Standards. This item repeals the reference to the
Accreditation Standards as the function is accurately described without the reference, and
the definition of Accreditation Standards is repealed by item 5. For the same reason, the
item repeals the reference to Home Care Standards in paragraph 12(b).
Item 8 - Paragraph 12(d)
Under paragraph 12(d), the CEO has the function of advising the Secretary of the
Department of Health about aged care services that do not meet the appropriate aged care
quality standards. This item substitutes the reference to the Accreditation Standards and the
Home Care Standards with a reference to the Aged Care Quality Standards.
Freedom of Information Act 1982
Item 9 - Schedule 3
Part 7 of the Quality Agency Act relates to protected information and the use and disclosure
of protected information. Section 52 is about the information regarding an aged care service
that the CEO may make publicly available. Paragraph 52(1)(g) refers to information about
the service's status under the Quality Agency Act and Aged Care Act, and specifically
references the service's accreditation record.
Section 48 makes it an offence for a person, in the course of performing their duties,
functions or powers, to make a record of, disclose or otherwise use information that is
protected information unless the conduct is authorised by law. Part 3 of the Freedom of
Information Act 1982 entitles a person to obtain access to a document of an agency, other
than an exempt document.
This item inserts a reference to the Quality Agency Act, subsection 48(1) and section 50 in
Schedule 3 of the Freedom of Information Act 1982 for the purpose of ensuring that
documents containing protected information acquired by the Quality Agency in the course
of its functions are exempt from disclosure.
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Item 10 - Transitional rules
This item authorises the Minister to, by legislative instrument, make rules on matters of a
transitional nature relating to the amendments or repeals made by this Act. The purpose of
this provision is to allow the Minister, by legislative instrument, to make rules of a
transitional nature relating to the transition of approved providers to the Aged Care Quality
Standards.
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