Chapter 2Key provisions
2.1This chapter outlines the bill’s key provisions. The bill consists of eight Chapters, as follows:
Chapter 1 – Introduction;
Chapter 2 – Entry to the Commonwealth aged care system;
Chapter 3 – Registered providers, aged care workers and aged care digital platform operators;
Chapter 4 – Funding of aged care services;
Chapter 5 – Governance of the aged care system;
Chapter 6 – Regulatory mechanisms;
Chapter 7 – Information management; and
Chapter 8 - Miscellaneous.
2.2Key provisions within each Chapter are examined below.
Chapter 1 – Introduction
2.3According to the Explanatory Memorandum, Chapter 1 sets out introductory and framing provisions, as well as definitions, to inform the bill’s provisions and to underpin the new aged care system.
2.4Key provisions within this chapter are outlined in the sections below.
Commencement
2.5Subclause 2(1) provides for the commencement of each provision in the bill. It also states that if passed, the Act would commence on a single day to be fixed by Proclamation.
2.6However, subclause 2(1) also provides that if the commencement of the provisions is not fixed by Proclamation before 1 July 2025, the provisions will commence on 1 July 2025.
Objects of the bill
2.7Clause 5 provides the bill’s objects, which are as follows:
(a)in conjunction with other laws, give effect to Australia’s obligations under the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of Persons with Disabilities; and
(b)provide a forward-looking aged care system that is designed to:
(i)uphold the rights of individuals under the Statement of Rights; and
(ii)assist individuals accessing funded aged care services to live active, self-determined and meaningful lives; and
(iii)ensure equitable access to, and flexible delivery of, funded aged care services that put older people first and take into account the needs of individuals, regardless of their location, background and life experience; and
(iv)support individuals accessing funded aged care services to effectively participate in society on an equal basis with others, thereby promoting positive community attitudes to ageing; and
(v)facilitate access to integrated services in other sectors where required; and
(c)enable individuals accessing funded age care services to exercise choice and control in the planning and delivery of those services; and
(d)ensure individuals accessing funded aged care services are free from mistreatment, neglect and harm from poor quality or unsafe care; and
(e)provide a robust and risk-based regulatory framework for the delivery of funded aged care services, including accessible complaint mechanisms for individuals accessing those services, that will promote public confidence and trust in the Commonwealth aged care system; and
(f)provide and support education and advocacy arrangements that can assist individuals accessing funded aged care services to understand their rights, make decisions and provide feedback on the delivery of those services without reprisal; and
(g)provide for sustainable funding arrangements for the delivery of funded aged care services by a diverse, trained and appropriately skilled workforce; and
(h)promote innovation in the Commonwealth aged care system based on research and support continuous improvement in the Commonwealth aged care system.
Definitions and key concepts
2.8Clause 7, contained within Division 1, provides the definitions that are used within the bill. These can be viewed on pages 6 to 31 of the bill.
2.9Clause 8, contained within Division 2, outlines the key concepts used within the bill and introduces the aged care service list which, according to the Explanatory Memorandum, will prescribe the list of services for which funding may be payable.
2.10The Explanatory Memorandum further provided that establishing a single aged care service list ‘will introduce consistency between funded aged care services’ and will ensure that ‘everyone can go to one location to see all the funded aged care services that an older person might be able to access’.
2.11Subclause 8(1) stipulates that the rules must prescribe a list of services for which funding may be payable. Paragraphs 8(1)(a) to 8(1)(j) outline what the rules must do. For example, paragraphs 8(1)(a) to 8(1)(c) require that the rules must list each service, describe each service, and specify the service type that the service is in.
2.12Subclause 8(2) defines a service type as a service type prescribed by the rules and subclause 8(3) defines a service group as any of the following:
Home support;
Residential care;
Assistive technology; or
Home modifications.
2.13Subclause 8(4) provides that each of the following is a means testing category for a service type delivered in a home or community setting:
Clinical supports;
Independence; and
Everyday living.
2.14Subclause 8(5) and 8(6) both address matters that must be considered before prescribing services. Subclause 8(5) outlines that the Minister must ensure that for the service group residential care nursing is in at least one service type that is in that group.
2.15According to the Explanatory Memorandum, subclause 8(6) provides that:
… the Minister must ensure that funded aged care services in a service type that is specified as a service type that is delivered in a residential care home for the purposes of paragraph (1)(f) are services of the following kind:
services for the care of persons who are experiencing sickness;
services incidental or conducive to the care of persons who are experiencing sickness.
2.16Clause 9 outlines the general requirements for an individual’s entry into the Commonwealth aged care system and defines who funded aged care services are delivered to under the bill.
2.17Clause 10 clarifies the locations in which funded aged care services may be delivered. Clause 10(1) provides that aged care services can be delivered in an approved residential care home or a home or community setting.
2.18Clause 11 sets the definitions of registered providers, aged care workers and associated providers and clause 12 provides a definition of which persons are considered the responsible persons of a registered provider.
2.19The Explanatory Memorandum explains that before registering or renewing the registration of an entity as a registered provider, the Aged Care Quality and Safety Commissioner needs to be satisfied that the provider’s responsible person(s) are suitable to involved in the delivery of funded aged care services.
2.20As such, the Explanatory Memorandum notes that clause 13 outlines what matters constitute a ‘suitability matter’ in relation to an individual. For example, paragraph 13(1)(a) accounts for the individual’s experience in providing, at any time, funded aged care services or other similar services.
2.21Clause 14 relates to the Aged Care Code of Conduct. It stipulates that the rules may prescribe requirements relating to the conduct of registered providers, aged care workers of registered providers, and responsible persons of registered providers.
2.22Clause 15 goes to the Aged Care Quality Standards and outlines that the rules may prescribe standards relating to the quality of funded aged care services delivered by a registered provider.
2.23The Explanatory Memorandum clarifies that clause 15 provides a framework ‘to strengthen and replace the Quality Standards’ introduced on 1 July 2019, which addresses Recommendation 19 of the Royal Commission and ‘aim to make sure that individuals accessing funded aged care services receive safe and quality care’.
2.24Clause 16 provides the meaning of a reportable incident, which is any of the following incidents that have occurred, are alleged to have occurred, or are suspected of having occurred, in connection with the delivery of funded aged care services to an individual by a registered provider:
(a)Unreasonable use of force against the individual;
(b)Unlawful sexual contact, or inappropriate sexual conduct, inflicted on the individual;
(c)Psychological or emotional abuse of the individual;
(d)Stealing from, or financial coercion of, the individual by an aged care worker of the provider;
(e)Neglect of the individual;
(f)Use of a restrictive practice in relation to the individual (other than in accordance with any requirements prescribed by the rules);
(g)Unexplained absence of the individual in the course of the delivery of funded aged care services to the individual.
2.25Clauses 17 and 18 relate to restrictive practices (discussed also in later provisions) and clause 19 provides the meaning of ‘significant failure’ and ‘systematic pattern of conduct’.
2.26Further, clause 20 provides the meaning of ‘high quality care’, clause 21 provides the meaning of ‘protected information’ and clause 22 provides the meaning of ‘dependent child’.
Statement of Rights
2.27According to the Explanatory Memorandum, clause 23 addresses Recommendation 2 of the Royal Commission, which recommended that the new Act specify a list of rights of people seeking and receiving aged care, by establishing a Statement of Rights for the new aged care system.
2.28Clause 23 and its associated subclauses are discussed below.
Independence, autonomy, empowerment and freedom of choice
2.29Rights are grouped according to theme. Subclause 23(1) relates to independence, autonomy, empowerment and freedom of choice, and provides that an individual has a right to the following rights specified in paragraphs 23(1)(a), (b) and (c):
Exercise choice and make decisions that affect the individuals life, including in relation to:
The funded aged care services the individual has been approved to access;
How, when and by whom those services are delivered to the individual;
The individual’s financial affairs and personal possessions; and
Where necessary, be supported to make those decisions, and have those decisions respected; and
Take personal risks, including in pursuit of the individual’s quality of life, social participation and intimate and sexual relationships.
2.30The Explanatory Memorandum highlighted that consultation on the bill showed the importance of individuals being empowered to have autonomy in every aspect of their lives.
Equitable access
2.31Subclause 23(2) relates to rights to equitable access. It stipulates that an individual has a right to equitable access to have the individual’s need for funded aged care services assessed, or reassessed in a manner which is:
Culturally safe, culturally appropriate, trauma-aware and healing-informed; and
Accessible and suitable for individuals living with dementia or other cognitive impairments.
2.32The Explanatory Memorandum notes that while the Royal Commission recommended a universal right to aged care services, this subclause recognises that ‘aged care is not a demand-driven system and aged care resources are not unlimited’.
2.33Subclause 23(2)(b) also provides for an individual’s right to equitable access to palliative care and end-of-life care when required.
Quality and safe funded aged care services
2.34Subclause 23(3) relates to quality and safe funded aged care services. Its associated subclauses provide that an individual has a right to:
Be treated with dignity and respect;
Safe, fair, equitable and non-discriminatory treatment;
Have the individual’s identity, culture, spirituality and diversity valued and supported; and
Funded aged care services being delivered to the individual:
In a way that is culturally safe, culturally appropriate, trauma-aware and healing-informed;
In an accessible manner; and
By aged care workers of registered providers who have appropriate qualifications, skills and experience.
2.35Paragraph 23(4)(a) stipulates that an individual has a right to be free from all forms of violence, degrading or inhumane treatment, exploitation, neglect, coercion, abuse or sexual misconduct.
2.36Paragraph 23(4)(b) provides that an individual also has a right to have quality and safe funded aged care services delivered consistently with the requirements imposed on registered providers under the bill.
Respect for privacy and information
2.37Rights related to the respect for privacy and information are outlined in subclauses 23(5) and 23(6). Subclauses 23(5) provides that an individual has a right to have their personal privacy respected and their personal information protected.
2.38Subclause 23(6) outlines that an individual has the right to seek, and be provided with, records and information about their rights under this clause of the bill, and the funded aged care services the individual accesses, including their costs.
Person-centred communication and ability to raise issues without reprisal
2.39The Explanatory Memorandum highlighted that poor communication within the aged care system has a number of adverse impacts, particularly for individuals with diverse backgrounds when accessing funded aged care services.
2.40The Explanatory Memorandum elaborated that this could include being unable to access information in a language the individual understands, make a complaint, or understand the services being delivered to them.
2.41Consequently, the Explanatory Memorandum notes that subclauses 23(7), (8) and (9) focus on rights related to person-centred communication and the ability to raise issues without reprisal.
2.42For example, subclause 23(7)(a) stipulates that an individual has a right to:
Be informed, in a way the individual understands, about the funded aged care services the individual accesses; and
Express opinions about the services the individual accesses and be heard.
Advocates, significant persons and social connections
2.43Subclauses 23(10) to (12) focus on rights related to advocates, significant persons and social connections. Subclause 23(10) notes that an individual has a right to be supported by an advocate or a person of their choice, including when exercising or seeking to understand their rights, voicing their opinions, making decisions that affect their lives, and making a complaint or providing feedback.
2.44Additionally, subclause 23(11) outlines that an individual has the right to have the role of persons significant to the individual be acknowledged and respected.
2.45Lastly, subclause 23(12) provides that an individual has the right to opportunities, and assistance, to stay connected with:
Significant people in the individual’s life, as well as pets, through visitation;
The individual’s community; and
If the individual is an Aboriginal or Torres Strait Islander person – community, Country and Island Home.
Effect of Statement of Rights
2.46Subclauses 24(1) to (3) detail the effect of the Statement of Rights. They provide that an individual is entitled to these rights when accessing, or seeking to access, funded aged care.
2.47Subclause 24(2) notes that it is the Parliament’s intention that registered providers who deliver funded aged care services must take all reasonable and proportionate steps to act compatibly with these rights, noting that limits on rights may be necessary to balance other rights, such as conflicting rights or the rights of others.
2.48The Explanatory Memorandum highlights that in line with the approach recommended by the Royal Commission, subclause 24(3) clarifies that nothing in clause 23 or 24 creates rights that are enforceable by proceedings in a court or tribunal. The Explanatory Memorandum elaborates that ‘this is because the Statement of Rights is broad, and a one-size-fits-all response to a possible breach would not be appropriate’ but notes that individuals can still make complaints via the Complaints Commissioner.
Statement of Principles
2.49As explained by the Explanatory Memorandum, the Statement of Principles responds to Recommendation 3 of the Royal Commission, which recommended a key set of principles for the new Act.
2.50As such, clause 25 sets out principles that provide guidance on how the new aged care system should operate, and should be used to guide decisions, actions and behaviours of those operating in the aged care system.
2.51The Explanatory Memorandum notes that as part of Recommendation 3, the Royal Commissioners identified two key principles for the new Act:
Ensuring the safety, health and wellbeing of people receiving aged care; and
Putting older people first so that their preferences and needs drive the delivery of aged care.
2.52Consequently, subclauses 25(1) to (5) relate to ‘a person-centred aged care system’. For instance, subclause 25(1) recognises that the safety, health, wellbeing and quality of life of individuals is the primary consideration in the delivery of funded aged care services.
2.53Subclauses 25(6) and (7) outlines the principles related to ‘an aged care system that values workers and carers’, subclauses 25(8) to (12) focus on ‘a transparent and sustainable aged care system that represents value for money’ and subclauses 25(13) and (14) provide principles for ‘an aged care system that continues to improve’.
2.54For example, subclause 25(14) notes that feedback and complaints are used to inform and promote continuous improvement in the Commonwealth aged care system.
Effect of statement of principles
2.55Similar to the effect of the Statement of Rights, subclause 26(1) provides that it is the intention of the Parliament that the Minister, System Governor, Commissioner, Complaints Commissioner and any other person or body that exercises powers or performs functions under this bill must have regard to the key principles when exercising their powers or performing functions.
2.56Further, subclause 26(2) notes that failure to comply with the principles creates a right or duty that is enforceable in a court or tribunal, and subclause 26(3) stipulates that failure to comply does not affect the validity of any decision, and is not a ground for the review or challenge of any decision.
Supporter arrangements
2.57According to the Explanatory Memorandum, Part 4 of Chapter 1 introduces a new legislated model to embed supported decision-making across the aged care system. This includes the establishment of a new role of ‘supporter’ that may be registered by the System Governor.
2.58Clauses related to supporter arrangements in the aged care system are separated into five divisions:
Division 1 – Actions and duties of supporters.
Clauses 27 to 33.
Division 2 – Protections relating to supporters.
Clauses 34 to 36.
Division 3 – Registration of supporters.
Clauses 37 to 42.
Division 4 – Determination that supporter has decision-making authority.
Clauses 43 to 48.
Division 5 – Suspensions and cancellations of registration.
Clauses 49 to 54.
2.59The Explanatory Memorandum explains that a supporter can receive and access information to support an individual in their decision-making under the bill.
2.60Further, the Explanatory Memorandum notes that a supporter’s role is to assist the older person to the extent necessary to make their own decisions. The supporter cannot make decisions on behalf of the older person.
2.61However, the Explanatory Memorandum also recognises that there will be types of supporters who can otherwise make decisions on behalf of an older person, such as a guardian or Enduring Power of Attorney. If this person is not a registered supporter, then they will not automatically receive information and be recognised as they otherwise would be as a registered supporter.
2.62The Explanatory Memorandum clarifies that a registration request to become a supporter can be made by a person or body, including the individual who is accessing, or seeking to access, aged care services. A registration can also be made on the initiative of the System Governor.
2.63Subclause 37(7) allows for a registration to be made verbally or in writing, and a note clarifies that a written notice of the registration must be given as soon as practicable after the registration is made.
2.64Lastly, the Explanatory Memorandum notes that the System Governor may determine that someone is a ‘decision-making supporter’ to make decisions on behalf of the older person for the purposes of aged care. The Explanatory Memorandum stresses that this would only occur in exceptional circumstances and does not preclude the older person from participating in, or making, their own decisions where they may be able to do so.
Chapter 2 – Entry to the Commonwealth aged care system
2.65Chapter 2 of the bill is separated into five Parts: introduction, eligibility for entry, classification, prioritisation and place allocation. The introduction provides a simplified outline of the Chapter.
2.66The Divisions within the remaining four Parts are further explored below.
Part 2 - Eligibility for entry
2.67There are four Divisions within Part 2. These are discussed in turn below, alongside their key provisions.
Division 1 – Applying for access to funded aged care services
2.68Division 1 encapsulates clauses 56 to 60, which relate to applying for access to funded aged care services. Clause 56 provides the requirements for applications, where an individual, or another prescribed person, may apply in an approved form to the System Governor for access to funded aged care services.
2.69Clause 57 stipulates that the System Governor must decide whether to make a determination. The subclauses explain that:
the System Governor must consider the application for access to funded aged care services and decide whether to make an eligibility determination;
that the decision must be made within the period prescribed by the rules; and
if the System Governor decides not to make a determination, the individual’s application for services is taken to be withdrawn.
2.70Clause 58 provides details regarding the eligibility determination for an aged care needs assessment. It explains that the System Governor must not make an eligibility determination for an assessment unless the System Governor considers that:
the individual:
is aged 65 or over; or
is an Aboriginal or Torres Strait Islander person and is aged at least 50; or
is homeless, or at risk of homelessness, and is aged at least 50; and
information of a kind prescribed by the rules has been provided in relation to the individual’s care needs; and
if the individual is aged less than 65, the individual:
has elected, in the approved form, to be provided with funded aged care services before the individual turns 65; and
was informed prior to making the election of any other services that may be available to meet the care needs of the individual.
2.71Paragraph 58(c), which relates to whether the individual is aged less than 65, is intended to ensure a younger individual does not enter the Commonwealth aged care system unless:
The individual is first informed of other services which may be available to meet their care needs; and
Still chooses to access aged care services despite the availability of other services.
2.72Clause 59 relates to the notice of decision not to make a determination and clause 60 covers the period of effect of determination.
Division 2 – Aged care needs assessments and reassessments
2.73Division 2 captures clauses 61 to 64, which provide details for aged care needs assessments and reassessments. For example, Clause 61 covers the aged care needs assessment.
2.74Clause 61(1) requires the System Governor to arrange for an individual’s assessment of need for funded aged care services to be undertaken by an approved assessor if:
An eligibility determination for an aged care needs assessment is made for the individual; or
The System Governor decides that a reassessment of the individual’s need for funded aged care services is required to be undertaken by an approved needs assessor in accordance with paragraph 64(2)(a).
2.75Clause 62 provides provisions related to undertaking aged care needs assessments. Subclause 62(1) provides that the aged care needs assessment must be conducted by an approved needs assessor using the assessment tools prescribed by the rules.
2.76The Explanatory Memorandum clarifies that this subclause will replace the different arrangements currently used to determine what kind of aged care a person may be approved to receive under the Act – home care, residential care or flexible care.
2.77Clause 63 covers aged care needs assessment reports and clause 64 details aged care needs reassessments.
Division 3 – Approval of access to funded aged care services
2.78Division 3 covers clauses 65 to 71, which relate to details on approval of access to funded aged care services.
2.79For example, subclause 65(1) provides that the System Governor must consider an assessment report for an individual provided under clause 63 and decide whether or not an individual requires access to funded aged care services.
2.80Paragraph 65(2)(a) stipulates that if the System Governor decides access is required, then the System Governor must decide whether to approve one or more service groups for the individual, including the classification types for the service group. This applies to all service groups for any funded aged care services, which are home support, residential care, assistive technology and home modifications.
2.81The Explanatory Memorandum clarifies that under Part 2 of Chapter 8 of the bill, decisions that an individual does not require access to funded aged care services are reviewable decisions.
2.82Clause 66 relates to Aboriginal or Torres Strait Islander persons, clause 67 captures individuals with an impairment or sickness, and clause 68 provides for individuals with a sickness.
2.83Lastly, Clause 69 details conditions on approvals of service types or services in certain service groups, clause 70 covers a notice of decision and clause 71 relates to the period of effect of approval.
Division 4 - Revoking eligibility determinations and access approvals
2.84Clauses within Division 4 include:
Clause 72 – request for revocation;
Clause 73 – revocation on request; and
Clause 74 – revocation on initiative of System Governor.
Part 3 – Classification
2.85Part 3 contains three Divisions: classification assessments and decisions, applying for a classification reassessment, and changing classifications.
2.86The clauses within these Divisions provide for the classifications of an individual’s need for aged care services, which determines the amount of funding available to deliver the services that the individual has been approved to access.
2.87The different classifications within the services groups are grouped in terms of classification type. The Explanatory Memorandum notes that this differentiates the time period that services are delivered for, namely: ongoing, short-term, or hospital transition.
Part 4 – Prioritisation
2.88Clauses in Part 4 relate to priority categories that will be assigned to individuals to ensure that ‘individuals with a higher priority category are prioritised for an allocation of a place’ which they can use to access funded aged care.
2.89The Explanatory Memorandum states that this will ensure equitable access to funded aged care services.
Part 5 – Place allocation
2.90Part 5 contains two Divisions: allocation of places to individuals and allocation of a place to registered providers for certain specialist aged care programs.
Division 1 – Allocation of places to individuals
2.91According to the Explanatory Memorandum, the clauses in Division 1 allow the Minister to determine the number of places available for allocation to individuals for each service group per financial year, and to allocate the places to individuals directly.
2.92This is accounted for by clause 91 (number of places available for allocation), clause 92 (allocation of places to individuals) and clause 93 (method or procedure for allocations).
Division 2 – Allocation of a place to registered providers for certain specialist aged care programs
2.93The Explanatory Memorandum explains that this Division provides for the process to allocate places to registered providers who are delivering funded aged care services under specialist aged care programs. It notes that this includes the Multi-Purpose Service Program and the Transition Care Program.
2.94The Explanatory Memorandum also outlines that different arrangements are in place to facilitate alternative funding arrangements for these specialist programs.
Chapter 3 – Registered providers, aged care workers and aged care digital platform operators
2.95Chapter 3 begins with a simplified outline of the Chapter. It is followed by Parts 2, 3, 4, 5 and 6. The key provisions within these Parts are examined below.
Part 2 – Provider registration and residential care home approval processes
2.96The Explanatory Memorandum notes that clause 104 responds to Recommendation 92 of the Royal Commission by initiating the process of an entity becoming a registered provider.
2.97It explains that without being registered by the Commission, an entity is not eligible to provide funded aged care services, or to access relevant Commonwealth grants and subsidies.
2.98Clause 106 provides the process for renewing a registration. The Explanatory Memorandum explains that this is designed to ensure the relevant provider’s ability to meet registration criteria that is subject to ongoing review and monitoring by the Commission.
2.99Requirements for registration and renewal are set out in subdivision C. There are general requirements (subclause 109(1)) and provider registration category specific requirements (subclause 109(2)).
2.100Further, subclause 109(3) provides that a registration must not be inconsistent with a banning order and subclause 109(4) allows the rules to prescribe exemptions from the requirements.
2.101Clause 110 details the audit requirements, which respond to advice from the Royal Commission that stated rigorous assessment of those wanting to provide government-funded aged care services is the best opportunity to ensure providers can provide high quality and safe care on a sustainable basis.
2.102Clauses 111 to 113 cover applications for approval of residential care homes, whilst clauses 114 to 122 detail notice of decisions and other provisions.
Part 3 – Variations, suspensions and revocations
2.103Clauses 123 to 135 pertain to variations, suspensions and revocations of registrations. Clause 123 enables the Commissioner to vary an entity’s registration if they consider it appropriate.
2.104The Explanatory Memorandum notes that this enables the Commissioner to address circumstances as they arise, including identified risks to individuals accessing funded aged care services or registered providers failing to comply with the legislative framework.
2.105Similarly, under Clause 124, providers are also given the opportunity to seek a variation to their registration.
2.106Subclause 125(1) provides the notice requirements that the Commissioner must convey prior to varying the registration of a registered provider, if the variation may have a significant adverse impact.
2.107Provisions related to the suspension of a registered provider’s registration is accounted for in clause 129. Specifically, the Explanatory Memorandum explains that this clause provides the Commissioner with a ‘time-limited punitive measure’ to apply in instances of non-compliance with the bill.
2.108Clause 131 covers revocation, which provides the Commissioner with an enduring punitive measure to apply to registered providers which can be used in instances of more serious non-compliance.
2.109Clauses 136 to 140 relate to variations, suspensions and revocations of approvals of residential care homes.
2.110Clause 141 pertains to the Provider Register, which stipulates that the Commissioner must establish and maintain a register in a form that the Commissioner deems appropriate. It should be published, at least in part, and must contain information on all providers with current or suspended registrations.
Part 4 – Obligations of registered providers etc. and conditions on registration of registered providers
2.111Clauses 142 to 165 (Division 1) pertain to conditions on provider registration. Specifically, the Division sets out the conditions that a registered provider must satisfy to retain their registration. It also provides the Commissioner with the power to impose bespoke conditions on registration as required.
2.112The Division also sets the penalties for a breach of these conditions, which the Explanatory Memorandum clarifies is in line with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.
2.113For instance, clause 142 provides the conditions of registration. The Explanatory Memorandum explains that this clause provides for an entity’s registration to be subject to certain conditions while ensuring the Commissioner has flexibility to regulate providers in a manner appropriate to the kind of provider and provider registration categories.
2.114Subclause 142(3) provides for a maximum of 250 civil penalty units for breaching registration conditions, and subclause 142(4) introduces a higher-level civil penalty of a maximum of 500 penalty units where a provider breaches a registration condition, and that conduct involves either a significant failure or forms part of a systematic pattern of conduct.
2.115The Commissioner is granted a discretionary power to impose conditions on the registration of registered providers under clause 143. Subclause 143(3) provides the conditions, which may include (but are not limited to) the following matters:
The quality and safety of funded aged care services delivered by a registered provider;
The rules made for the purpose of subsection 110(1) (which relates to audit requirements);
Any additional reporting requirements that a registered provider must comply with;
The Financial and Prudential Standards;
The Age Care Code of Conduct;
Requirements relating to the funded aged care services that a registered provider may or may not deliver; and
Compliance with an agreement referred to in paragraph 133(3)(a) regarding eligible advisers.
2.116The Explanatory Memorandum further explains that due to the ‘fundamental importance’ of the Statement of Rights and the Statement of Principles, it is also a condition of registration under clause 144 that providers:
demonstrate an understanding of the rights of individuals; and
have practices in place that are designed to ensure the delivery of services that are compatible with the rights.
2.117Clause 165 pertains to complaints, feedback and whistleblowers. This clause responds to Recommendation 90 of the Royal Commission, which called for providers to have a system in place for receiving and dealing with complaints, and Recommendation 99, which called for comprehensive whistleblower protections.
2.118Specifically, paragraph 165(1)(d) and (e) relate to the implementation and maintenance of a whistleblower systems, policies, and the management of disclosures.
2.119Clauses 166 to 178 (Division 2) pertain to registered provider, responsible person, and aged care worker obligations. The Explanatory Memorandum notes that it provides for a range of obligations to be imposed on registered providers where there is:
A need for them to act in accordance with a duty; or
A need to provide ongoing assurance of their suitability to deliver funded aged care services.
2.120Division 2 also sets penalties for breaches of certain obligations, which are to be read as maximum penalties unless the contrary intention appears.
Part 5 – Statutory duty and compensation
2.121Part 5 is comprised of three Divisions. Division 1 (clauses 179 and 180) provides details on provider and responsible person duties.
2.122According to the Explanatory Memorandum, the Division introduces a ‘registered provider and responsible person duties and an associated offence framework’ in response to Recommendations 14 and 101 of the Royal Commission.
2.123These Recommendations called for the new Act to include a general, positive and non-delegable statutory duty on registered providers, with civil penalties and accessorial liability available for breaches of the duty to provide high quality care, and accessorial liability for responsible persons for certain breaches of the duty by the provider.
2.124The Explanatory Memorandum further clarified that, generally, the provisions identify the duty holder, the duty owed by them, and how they must comply with the duty.
2.125Division 2 (clauses 181 to 185) sets out the principles that apply to the duties in Chapter 3, Part 5 only.
2.126Division 3 (clause 186) covers the compensation pathway and orders. It provides for the making of compensation orders by the Federal Court or the Federal Circuit and Family Court of Australia.
Part 6 – Aged care digital platform operators
2.127Part 6 is comprised of clauses 187 to 189, which provides the meaning of ‘aged care digital platform’, duty of operators of aged care digital platforms and other obligations of certain operators of aged care digital platforms.
Chapter 4 – Funding of aged care services
2.128Chapter 4 is comprised of five Parts. Part 1 provides the introduction and simplified outline of the Chapter. The remaining four Parts and their key details are examined below.
Part 2 – Commonwealth Contributions
2.129Part 2 covers details related to Commonwealth contributions for funded aged care services, which the Explanatory Memorandum notes are generally in the form of a subsidy paid for the delivery of a service to an individual.
2.130The Explanatory Memorandum clarifies that subsidies are payable under this part for the ongoing and short-term classification types for all services groups, as well as under arrangements for specialist aged care programs.
2.131The Explanatory Memorandum also highlights that the Commonwealth provides grants of financial assistance for certain purposes.
2.132There are seven Divisions in this Part, which are as follows:
Division 1 (clauses 191 to 208) – Subsidy for home support.
Provides for the calculation of subsidies to registered providers for the provisions of funded aged care services through the home support service group.
Subsidies are grouped by person-centred subsidies and provider-based subsidies.
Division 2 (clauses 209 to 217) – Subsidy for assistive technology.
Provides for the calculation of person-centred subsidies to registered providers for the provision of funded aged care services through the assistive technology group.
Division 3 (clauses 218 to 226) – subsidy for home modifications.
Provides for the calculation of person-centred subsidies to registered providers for the provision of funded aged care services through the home modifications service group.
Division 4 (clauses 227 to 246) – Subsidy for residential care.
Provides for the calculation of subsidies to providers for the delivery of funded aged care services at an approved residential care home.
Subsidies are separated into person-centred subsidies and provider-based subsidies.
Division 5 (clauses 247 to 249) – Subsidy for certain specialist aged care programs.
Provides for the Commonwealth to enter into agreements with entities to deliver funded aged care services through specialist programs.
Provides for the calculation of subsidies to providers for the provision of services where they are delivered through a specialist program.
Division 6 (clauses 250 to 263) – Subsidy claims and payment.
Provides for the payment of subsidies to registered providers for the provision of funded aged care services.
Provides for the rules to prescribe matters regarding the transfer of service delivery branches and approved residential care homes between registered providers.
Division 7 (clauses 264 to 271) – Grants.
Provides the framework for the System Governor to grant financial assistance for the delivery of aged care services to providers or any person or body for agreed purposes.
Part 3 – Individual fees and contributions
2.133Part 3 details the individual fees and contributions that are payable by the individual for funded aged care services. The Explanatory Memorandum provides that means testing provisions apply for all service groups to determine what individual fees and contributions are payable.
2.134It further clarifies that that if individual contributions and fees are payable, the subsidy amount paid to the registered provider for the delivery of the service is reduced commensurately.
2.135There are three Divisions in this part, which are as follows:
Division 1 (clauses 272 to 274) – Fees and contributions payable in a home or community setting.
Provides for the calculation of contributions that individuals accessing ongoing or short-term funded age care services via home support, assistive technology and home modification service groups will be expected to pay if they are able to do so.
Division 2 (clauses 275 to 285) – Fees and contributions payable in an approved residential care home.
Provides for the calculation of contributions that individuals accessing services via the residential care service group will have to pay if they are able to do so.
Division 3 (clause 286) – Fees and contributions for specialist aged care programs.
Provides for the calculation of contributions that individuals accessing services via a specialist aged care program may have to pay.
The Explanatory Memorandum notes that there are no means testing provisions which determine who must pay these contributions.
Part 4 – Accommodation payments and accommodation contributions
2.136Part 4 of the Chapter sets out that an individual accessing ongoing funded aged care services through the residential service group in an approved residential care home, or under a specialist program, may be required to pay for, or contribute to the cost of accommodation in the residential care home.
2.137There are seven Divisions in this Part, which are as follows:
Division 1 (clauses 287 to 288) – Application of this Part.
Provides for the application provisions for this Part.
Division 2 (clauses 289 to 291) – Maximum accommodation payment amounts and publication of certain amounts by the System Governor.
Outlines the establishment of maximum accommodation payment amount that may be charger by a provider and the publication of the amounts by the System Governor.
Division 3 (clauses 292 to 295) –Accommodation agreements.
Outlines requirements for accommodation agreements between registered providers and individuals.
Division 4 (clauses 296 to 297) – Charging of accommodation payments.
Sets out how accommodation payments may be charged.
Division 5 (clause 298) – Charging of accommodation contributions.
Sets out how accommodation contributions may be charged.
Division 6 (clause 299 to 302) – Charging of daily payments.
Sets out how daily accommodation payments and accommodation contributions may be charged.
Division 7 (clauses 303 to 313) – Refundable deposits.
Sets out the rules related to refundable deposits in relation to both accommodation payments and accommodation contributions.
Part 5 – Means testing
2.138This Part details the means testing provisions which determine whether an individual must pay certain contributions. It includes two Divisions:
Division 1 (clauses 314 to 318) – Means testing in a home or community setting.
Provides for the means testing of individuals who access ongoing or short-term aged care services through the home support, assistive technology or home modification service groups. According to the Explanatory Memorandum, the results of this are used to determine the amount they might pay under Part 3.
The Explanatory Memorandum notes that the means testing arrangements for individuals accessing aged care services in a home or community are ‘significantly different’ to the arrangements for individuals receiving home care under the Aged Care Act.
Division 2 (clauses 319 to 337) – Means testing in approved residential care home.
Provides for the means testing of individuals who are accessing care through the residential care service group, which is used to determine the amount of individual contributions they might pay.
The means testing arrangements for individuals accessing funded aged care services through this group are similar to the arrangements for individuals receiving residential care under the Aged Care Act.
Chapter 5 – Governance of the aged care system
2.139Chapter 5 is comprised of four Parts. Part 1 provides the introduction and simplified outline of the Chapter. The remaining three Parts and their key provisions are examined below.
Part 2 – System Governor
2.140Clause 339(1) prescribes the functions of the System Governor, which are listed in paragraphs 339(1)(a) to (h). The functions are as follows:
Facilitating equitable access to aged care services;
Supporting the continuity of funded aged care services;
Providing system stewardship;
Protecting and upholding program integrity;
Encouraging the training and development of aged care workers of registered providers;
Reviewing the Commonwealth’s administration of the aged care system;
Any other functions conferred by the Act or any other law of the Commonwealth; and
To do anything incidental or conducive to the performance of any of the above functions.
2.141Clauses 341 and 342 provide detail on the register of coroner’s reports and reporting related to the recommendations contained in these reports, as per Recommendation 96 of the Royal Commission.
Part 3 – Aged Care Quality and Safety Commission
2.142Part 3 provides details on the Aged Care Quality and Safety Commission. It contains eight Divisions, which are listed below:
Division 1 (clauses 344 to 346) – Establishment and functions of the Aged Care Quality and Safety Commission.
Clause 345 provides the constitution of the Commission, which will be comprised of the Commissioner, the Complaints Commissioner and the staff of the Commissioner.
Clause 346 conveys that the function of the Commission is to assist the Commissioner and the Complaints Commissioner in the performance of their functions.
Division 2 (clauses 347 to 355) – Establishment and functions of the Commissioner.
Clause 347 establishes the Commissioner of the Aged Care Quality and Safety Commission, and its functions are set out in clause 348.
Some of the Commissioner’s functions relate to safeguarding, engagement, education, and the registration of providers.
The Explanatory Memorandum clarifies that the Commissioner will not perform any complaints functions, which will instead be performed by the Complaints Commissioner.
Division 3 (clauses 356 to 361) – Establishment and functions of the Complaints Commissioner.
The Complaints Commissioner is established by subclause 356(1) and its functions are prescribed by clause 357, which include complaints functions.
Clause 358 sets out the complaints functions of the Complaints Commissioner. For example, paragraph 358(a) provides that the complaints functions include upholding the rights under the Statement of Rights and protecting and enhancing the safety, health, wellbeing and quality of life of people accessing funded aged care services.
Paragraph 358(b) provides that the complaints functions also include dealing with complaints and feedback and paragraph 358(c) provides that the Complaints Commissioner is also to acknowledge and engage with independent aged care advocates.
Division 4 (clauses 362 to 368) – Administration.
Clauses within this Division pertain to matters such as acting appointments, remuneration and allowances, and leave of absence.
Division 5 (clauses 369 to 371) – Staff of the Commission.
Subclause 370(1) provides that the Commission may also be assisted by officers and employees of Agencies, and of authorities of the Commonwealth, and persons whose services are made available under arrangements made under subclause 370(2).
Clause 371 provides that the Commissioner may also engage consultants to assist in the performance of the Commission’s functions.
Division 6 (clauses 372 to 375) – Reporting and planning.
Clauses within this Division pertain to the Commission’s annual report, that the Minister may request report on the Commissioner’s and Complaints Commissioner’s functions, and also details matters related to corporate plans.
Division 7 (clauses 376 to 378) – Financial and Prudential Standards.
Recommendations 130 to 137 of the Royal Commission called for a framework to strengthen prudential regulation of providers.
Clauses in this section pertain to financial and prudential standards, including the need to have regard to the Statement of Principles, and consultation, when making standards.
Division 8 (clauses 379 to 381) – Worker screening.
Clauses in this section provide for the establishment of an aged care worker screening database and provisions related to NDIS screening decisions.
Part 4 – Aged Care Quality and Safety Advisory Council
2.143Part 4 contains three Divisions. These relate to the establishment and functions of the Aged Care Quality and Safety Advisory Council (the Advisory Council), the membership of the Advisory Council and its procedures.
2.144For instance, clause 383 provides the functions of the Advisory Council, which are as follows:
Monitor the performance of the Commission’s functions;
Provide advice to the Commissioner in relation to its functions;
Provide advice to the Complaints Commissioner in relation to its functions;
Provide advice to the Minister about matters arising in relation to the performance of the Commission’s functions;
Support the Commission in developing its strategic objectives;
Collect, correlate, analyse and disseminate data and other information for the purposes of, and relating to, the Advisory Council’s functions.
2.145Clause 385 pertains to the membership of the Advisory Council, which will consist of a Chair, a Deputy Chair, and at least seven, and not more than 11, other members.
Chapter 6 – Regulatory mechanisms
2.146Chapter 6 provides a range of regulatory mechanisms that are available to the Commissioner, Complaints Commissioner and System Governor in relation to their respective functions. This includes powers under the Regulatory Powers (Standards Provisions) Act 2014 (Regulatory Powers Act), and additional powers under this Chapter.
2.147The Chapter contains 15 Parts. The first is the introduction that contains a simplified outline of the Chapter. Key provisions within the remaining Parts are discussed below.
Part 2 – Monitoring under Part 2 of the Regulatory Powers Act
2.148The Explanatory Memorandum explains that Parts 2 and 3 of the Chapter provide the System Governor and Commissioner, as well as their authorised persons and persons assisting, with monitoring and investigation powers in relation to their respective functions, by triggering Parts 2 and 3 of the Regulatory Powers Act. It clarifies that an authorised Commissioner officer can also exercise these powers in relation to the Complaints Commissioner’s functions.
2.149Additionally, the Explanatory Memorandum outlines that Parts 2 and 3 of the Regulatory Powers Act allows entry to premises to exercise monitoring or investigation powers, where authorised by the consent of the occupier or under warrant.
2.150Further, it notes that modifications have also been made to these powers where appropriate to the aged care context.
2.151Key provisions include subclause 397(1), which makes all the bill’s provisions (or offence provisions of the Crimes Act 1914 or the Criminal Codeto the extent that they relate to the bill) subject to monitoring under Part 2 of the Regulatory Powers Act.
2.152Additionally, provisions under Division 2 contain details regarding the modifications of Part 2 of the Regulatory Powers Act. For instance, clause 403 empowers authorised persons (and persons assisting authorised persons) to use force against ‘things as is necessary and reasonable in the circumstances in executing a warrant’, and if all other measures to execute the warrant without force have been exhausted.
2.153Division 3 (clauses 410 and 411) details delegations by relevant chief executives.
Part 3 – Investigating under Part 3 of the Regulatory Powers Act
2.154There are three Divisions within this Part which relate to triggering Part 3 of the Regulatory Powers Act, modifications to Part 3, and the delegations by relevant chief executives.
2.155Key provisions include clause 412, which triggers Part 3 of the Regulatory Powers Act, for the purposes of gathering evidentiary material for an offence or civil penalty provision under the bill (or an offence provision of the Crimes Act 1914 or the Criminal Codeto the extent that it relates to the bill).
2.156 Additionally, similar to clause 403 under Part 2, clause 418 provides the details for the use of force in executing investigation warrants, which empowers authorised persons (or those assisting them) to use such force against things as is necessary and reasonable in the circumstances in executing a warrant, or if all of measures to execute the warrant without force have been exhausted.
Part 4 – Access to premises where risk to safety etc. of individual
2.157The Explanatory Memorandum explains that clauses in this Part provide additional powers for the authorised Commission officers to enter a residential care home in certain circumstances, for the purposes of performing the safeguarding functions of the Commissioner.
2.158The Explanatory Memorandum further clarifies this power was recommended by the Royal Commission under Recommendation 97, and that it also complements the monitoring and investigation powers under Parts 2 and 3 of the Regulatory Powers Act.
2.159Clause 427 enables an authorised Commission officer to enter a residential care home at any time, without a warrant or the occupier’s consent, if the Commissioner is satisfied that it is reasonably necessary due to an immediate and severe risk to the health, safety or wellbeing of an individual, and it is not practicable to obtain a warrant.
2.160Clause 431 clarifies that if an authorised Commission officer does enter a residential care home under clause 427, the Commissioner must:
Apply to an assessment officer for a warrant (a post-entry warrant) under this clause in relation to the entry; and
Do so as soon as practicable after exercise of powers under clause 427.
Part 5 – Additional monitoring and investigation powers and compensation
2.161Part 5 of Chapter 6 provides additional monitoring and investigation powers relating to the use of equipment to examine or process things found at premises.
2.162The Explanatory Memorandum states that these powers are taken to be included in the monitoring and investigation powers in Parts 2 and 3 of the Regulatory Powers Act as applied to bill.
Part 6 – Civil penalties under Part 4 of the Regulatory Powers Act
2.163Part 6 details the civil penalties under Part 4 of the Regulatory Powers Act. Key provisions include clause 440, which provides that each civil penalty provision of the bill is enforceable under Part 4 of the Regulatory Powers Act.
2.164Further, modifications of Part 4 of the Regulatory Powers Act include that the Crown is not liable to a pecuniary penalty (clause 444) and Part 4 of the Regulatory Powers Act extends to the external Territories, apart from the Territory of Ashmore and Cartier Islands (clause 445).
Part 7 – Infringement notices under Part 5 of the Regulatory Powers Act
2.165Part 7 provides for the System Governor and Commissioner to issue infringement notices in relation to certain civil penalty provisions and offences under the bill.
2.166Clause 448 details the provisions that are subject to an infringement notice under Part 5 of the Regulatory Powers Act. These are:
Subsection 166(5) (failure to give reports);
Subsections 167(5) and 169(3) (failure to give notice of change in circumstances);
Subsection 177(4) (failure to cooperate with other persons);
Sections 480 and 487, and subsections 490(2) and 495(1) and (2) (failure to comply with notices);
Section 512 (failure to provide reasonable facilities and assistance for assurance activities); and
A provision of the Act that is prescribed by the rules.
Part 8 – Enforceable undertakings under Part 6 of the Regulatory Powers Act
2.167Part 8 provides for the System Governor and Commissioner to accept enforceable undertakings in relation to the obligations of registered providers, and provisions of the rules, made for the purposes of those obligations.
2.168Division 1 pertains to the triggering of Part 6 of the Regulatory Powers Act, Division 2 relates to modifications of Part 6 of the Regulatory Powers Act, and Division 3 details delegations by authorised persons.
Part 9 – Injunctions under Part 7 of the Regulatory Powers Act
2.169Part 9 provides for the use of injunctions by the System Governor and the Commissioner in relation to the enforcement of registered provider obligations and provisions of the rules made for the purposes of those obligations.
2.170Clause 466 stipulates that a provision of Part 4 of Chapter 3 of the bill (obligations of registered providers and conditions of registration) and a provision of the rules made for the purposes of Chapter 3 are enforceable under Part 7 of the Regulatory Powers Act.
2.171Division 2 relates to Modifications of Part 7 of the Regulatory Powers Act and Division 3 pertains to delegations by authorised persons.
Part 10 – Notices requiring action
2.172Part 10 provides that the Commissioner, Complaints Commissioner and System Governor have the power to give certain notices to registered providers.
2.173Clause 474 provides that the Commissioner or Complaints Commissioner may give a written notice (a required action notice) relating to certain matters, including:
A matter raised in a complaint, notification or other information relating to the registered provider received or held by the Commission; or
A matter relating to the rights of an individual under the Statement of Rights, to whom the registered provider is delivering funded aged care services; or
A matter relating to the registered provider’s conditions of registration or obligations under Part 4 of Chapter 3.
2.174Clause 476 stipulates the contents of required action notices and clause 477 provides that the Commissioner may vary or revoke required action notices, which the System Governor may also do under clause 479.
2.175Division 2 contains clauses on compliance notices, and Division 3 contains clauses related to notices to attend to answer questions or give information or documents.
Part 11 – Banning orders
2.176The Explanatory Memorandum notes that Part 11 gives the Commissioner the power to make banning orders prohibiting or restricting current and former providers, aged care workers and responsible persons from delivering (or being involved in delivering) funded aged care services.
2.177It further explains that this will have the effect of prohibiting or restricting them from being involved in the delivery of aged care services generally, or specified types of services or activities as a registered provider, or as an aged care worker, or responsible person of a registered provider.
2.178The Explanatory Memorandum notes that civil penalties may apply for breaching a banning order. However, registered providers or individuals who are the subject of a banning order may seek to have the order varied or revoked.
2.179The Commissioner will also have the power to vary or revoke a banning order on their own initiative. Clause 556 sets out that certain banning order decisions made by the Commissioner against an individual are reviewable decisions.
2.180Grounds for a banning order are stipulated in subclause 497(4). Clause 499 sets out that the Commissioner must first notify the relevant entity in writing that a banning order is being considered, prior to making the order, unless the Commissioner believes that there is an immediate and severe risk, or where the Commissioner has revoked the registration of the entity as a registered provider.
Part 12 – System Governor functions assurance activities
2.181Part 12 provides additional powers for the System Governor in relation to conducting assurance activities.
2.182For instance, clause 508 stipulates that the System Governor could conduct activities that relate to the following:
How registered providers are using subsidy or grants and charging for funded aged care services, including justifications for amounts charged to individuals;
How registered providers are structuring their financial accounting for delivering funded aged care services;
How registered providers are delivering funded aged care services;
The nature and type of dealings that registered providers have with individuals to whom they are delivering funded aged care services;
Information and documents provided by registered providers;
The completeness, accuracy and reliability of information and documents (as above); and
The procedures and documentation of registered providers in relation to matters mentioned in any of the above points.
Part 13 – Recoverable amounts
2.183Part 13 provides a framework for the Commonwealth to recover amounts of subsidy or grants paid to an entity that the entity was not entitled to receive. This includes the use of legal proceedings or entry into arrangements with debtors. Further, it provides the circumstances in which the debt may be waived or written-off.
2.184There are three Divisions within this Part:
Division 1 (clauses 514 to 515) – Recoverable amounts.
Division 2 (clauses 516 to 519) – Recovery of recoverable amounts.
Division 3 (clauses 520 to 524) – Non-recovery of recoverable amounts.
Part 14 – Authorised Commission officers and authorised System Governor officers
2.185Part 14 details the appointment, functions and powers of authorised officers and miscellaneous matters. The Explanatory Memorandum notes that the government is continuing to work on critical failure powers.
2.186Division 1 (clauses 525 and 526) pertains to the appointments of authorised Commission officers and System Governor officers.
2.187Division 2 (clauses 527 and 528) provides the functions and powers of authorised Commission officers and System Governor officers.
Part 15 – Miscellaneous
2.188There are three Divisions within this Part, which relate to civil penalty provisions for false or misleading information or documents, general rules about offences and civil penalty provisions, and immunity of officers and persons assisting.
Chapter 7 – Information management
2.189There are five Parts contained within Chapter 7. An overview of each Part is provided below, including the examination of key provisions.
Part 1 - Introduction
2.190According to the Explanatory Memorandum, this Chapter protects certain information (protected information), such as personal information or confidential information obtained or generated for the purposes of the bill. It notes that the unauthorised use and disclosure of this information is subject to criminal penalties.
2.191It also provides that a more limited category of information about providers will be protected.
2.192Further, in some cases, using and disclosing protected information will be necessary to administer the bill, the aged care system or related legislation. The Explanatory Memorandum clarifies that this is intended to achieve the objective of a transparent aged care system, where people can access the information they need to make informed decisions about their care.
2.193Lastly, the Chapter establishes a framework for the protection of people who make certain disclosures of information that indicates suspected contraventions of the bill, including protecting their identity from being disclosed and protection against victimisation.
Part 2 – Secrecy of information
2.194Clause 535 relates to the unauthorised use or disclosure of protected information and provides a penalty of imprisonment (up to two years), penalty units (120), or both. For instance, subclause 535(1) deals with entrusted persons and makes it an offence for entrusted persons to use or disclose information without an authorisation, and subclause 535(2) deals with a person who is not an entrusted person and was provided with protected information under certain authorisations under the bill.
2.195Provisions under clause 536 ensure that a person is protected from liability where they are acting in accordance with the bill.
2.196Clause 537 outlines circumstances in which the use or disclosure of relevant information by a person is an authorised use or disclosure. For example, for the purposes of performing functions or duties, or exercising powers, under or in connection with the bill.
2.197Relatedly, clause 539 sets out situations where a disclosure of relevant information by the System Governor and an Appointed Commissioner may be authorised.
2.198Clause 542 sets limits on requirements to produce or answer questions, to ensure that protected information is only released in limited circumstances.
Part 3 – Record-keeping
2.199Clause 543 is the only clause in Part 3, and it covers the retention of records by former registered providers. Its provisions provide that an entity commits an offence if:
The entity has ceased to be a registered provider of a kind prescribed by the rules; and
The entity fails to retain for seven years after that cessation a record; and
Immediately before the cessation, it was a condition of the entity’s registration as a registered provider that the entity retains the record; and
The record relates to a funded aged care service the entity delivered as a registered provider.
Part 4 – Information sharing
2.200There are two Divisions within Part 4 which cover matters related to publication by the System Governor and publication by the Commissioner.
2.201Clause 544 provides that the System Governor must publish information about funded aged care services generally and clause 545 provides types of information that the System Governor may publish. For example, the name of a provider, its ABN, and how the provider may be contacted.
2.202Clause 546 similarly provides the types of information that the Commissioner may publish.
Part 5 – Whistleblower protections
2.203Part 5 sets out the legal rights and protections for individuals who disclose information in certain circumstances, which supports Recommendation 99 of the Royal Commission on the protection for whistleblowers.
2.204Clause 547 outlines when a disclosure qualifies for protection. A disclosure of information by an individual (the disclosure) is protected if:
(a)The disclosure is made to one of the following:
(i)An appointed Commissioner or a member of staff of the Commission;
(ii)the System Governor, or an official of the Department;
(iii)a registered provider;
(iv)a responsible person of the registered provider;
(v)an aged care worker of a registered provider;
(vi)a police officer; and
(vii)an independent aged care advocate; and
(b)the disclosure is made orally or in writing (and whether made anonymously or not); and
(c)the discloser has reasonable grounds to suspect that the information indicates that an entity may have contravened a provision of this Act.
2.205Clause 548 provides that if a person makes a disclosure that qualifies for protection under clause 547, then:
The person is not subject to any civil, criminal or administrative liability (including disciplinary action) for making the disclosure; and
No contractual or other remedy may be enforced, and no contractual or other right may be exercised, against the individual on the basis of the disclosure.
2.206Clauses 549, 550 and 551 respectively relate to preserving anonymity, the confidentiality of a discloser’s identity, and that victimisation is prohibited.
2.207Registered providers’ obligations in relation to disclosures are set out in clause 553.
Chapter 8 – Miscellaneous
2.208The final Chapter of the bill contains 10 Parts (below). Key provisions within Chapter 8 are also examined below.
Introduction;
Reconsideration and review of decisions;
Delegation provisions;
Application of this Act to certain entities;
Automation of administrative action;
Applications, requests and notifications etc.;
Application fees and fees for services provided by the System Governor, Commissioner and Complaints Commissioner;
Appropriation;
Reports on and review of this Act;
Rules.
2.209Clause 556 details decisions by the Commissioner or Complaints Commissioner that are reviewable and the affected entity who may request reconsideration of a decision. For example, a decision made by the Commissioner not to register an entity as a registered provider is a reviewable decision.
2.210Clause 557 similarly deals with decisions made by the System Governor that are reviewable, whereas clauses 559 to 565 pertain to the processes involved in the reconsideration of a reviewable decision.
2.211Clause 582 sets out that the System Governor may make written arrangements for computer programs to be used, with oversight, to take relevant administrative actions on their behalf.
2.212Clause 583 provides for the oversight and safeguards of the automation of administrative action.
2.213Clause 601 sets out the review of the operation of the Act, where:
the Minister must cause an independent review of the operation of the Act within six months of the fifth anniversary of the Act’s commencement;
the person who conduct the review must give the Minister a written report of the review; and
the Minister must cause a copy of the report to be tabled in each House of Parliament within 15 sitting days of that House after the report is given to the Minister.
2.214Part 10 of the Bill empowers the Minister to make legislative rules. The Explanatory Memorandum clarifies that the rules may deal with matters required or permitted by the bill, or that are necessary for carrying out or giving effect to the bill.
2.215However, the Minister is prohibited from making rules that:
Create offences or civil penalties;
Provide powers of arrest, detention, entry, search or seizure;
Impose taxes;
Determine amounts to be appropriated from the Consolidated Revenue Fund; or
Directly amend the text of the bill.
2.216The Explanatory Memorandum clarifies that it would be inappropriate to prescribe these types of matters in the rules as they require parliamentary scrutiny.