Bills Digest no. 17 2015–16
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WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Alex Grove
Social Policy Section
4 September 2015
Contents
Purpose
of the Bill
Background
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions
Concluding comments
Date introduced: 13
August 2015
House: Senate
Portfolio: Social
Services
Commencement: On a
day to be fixed by proclamation, or six months after Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
website.
The purpose of the Aged Care Amendment (Independent
Complaints Arrangements) Bill 2015 (the Bill)[1]
is to amend the Aged Care Act 1997 (the Act)[2]
to transfer responsibility for aged care complaints from the Secretary of the
Department of Social Services (the Secretary) to the Aged Care Commissioner
(the Commissioner). This is intended to occur from 1 January 2016.[3]
The Bill also amends the Act and the Australian Aged
Care Quality Agency Act 2013 to change the name of the Aged Care
Commissioner to the Aged Care Complaints Commissioner.[4]
The Australian Government subsidises aged care services
for older people who are no longer able to live independently in their own
homes.[5]
The Aged Care Act 1997 (the Act) and the associated Principles provide
the regulatory, funding and quality framework for services including residential
aged care, home care packages and flexible care programmes.[6]
In 2013–14 the Australian Government spent $9.8 billion on residential care
subsidies and supplements and $1.3 billion on home care packages. [7]
In this period, around 232,000 people received permanent residential care,
around 48,000 received residential respite care and around 83,000 people
received a home care package (some may have received more than one type of
care).[8]
The objects of the Act include promoting a high quality of
care and accommodation and protecting the health and well-being of those people
receiving aged care.[9]
To this end, the Australian Aged Care Quality Agency (AACQA) accredits and
performs quality reviews of aged care services while the Department of Social
Services (DSS) is responsible for aged care ‘regulatory policy, compliance and
enforcement’, as well as funding.[10]
Currently, DSS also operates the Aged Care Complaints Scheme (the Scheme).[11]
Aged Care Complaints Scheme
The Scheme responds to complaints
about Australian Government subsidised aged care services, including:
- residential
care
- Home
Care Packages
- the
Commonwealth HACC (Home and Community Care) Program (which is in the process of
being consolidated into the Commonwealth Home Support Programme) and
- National
Aboriginal and Torres Strait Islander Flexible Aged Care.[12]
The Scheme received 3,903 complaints in 2013–14. The
majority of these (89 per cent) related to residential aged care. The issues
most frequently complained about were health and personal care, consultation
and communication, the physical environment, personnel and medication
management.[13]
Complaints to the Scheme may be resolved in a number of
ways including provider resolution, conciliation, mediation, investigation or referral
to another organisation.[14]
In 2013–14:
- 79
per cent of complaints were finalised in early resolution
- Scheme
officers conducted 355 site visits
- 28
Directions were issued to providers requiring them to take action to comply
with their responsibilities under the Act and
- 976
referrals were made to external agencies (97 per cent of these were to AACQA).[15]
In terms of performance, 84 per cent of complaints were
finalised by the Scheme within 90 days, and 82 per cent of complainants and
providers surveyed were satisfied with the operation of the Scheme.[16]
Aged Care Commissioner
If a complainant or service
provider is not satisfied with a decision or process of the Scheme, they can
ask the Aged Care Commissioner to review that decision or process.[17]
The Aged Care Commissioner
is a statutory office created under the Act. Currently, the Commissioner acts
as an independent office of review that can examine complaints about:
- the decisions of the Scheme
- the processes of the Scheme and
- the processes of AACQA.[18]
After a complaint has been
examined, the Commissioner may direct or make recommendations to the Scheme, or
make recommendations to AACQA. The Commissioner can also examine the processes
of the Scheme or AACQA without receiving a complaint.[19]
In 2013–14 the Commissioner
had ten staff, a budget of $1.4 million, and received 96 complaints. Most
complaints were about Scheme decisions (56 per cent) or Scheme processes (41
per cent).[20]
People who have complaints
about the Commissioner’s administrative actions can complain to the
Commonwealth Ombudsman. Two such complaints were made in 2013–14.[21]
Recommendations regarding the
independence of the Scheme
The Bill transfers the complaints powers of the Secretary of
DSS to the Aged Care Commissioner. This separation of complaints management
from the funder and regulator is described by the Government as ‘best practice
in complaints handling’.[22]In
making these changes, the Government has ‘recognised the
recommendations of the 2009 review of the former Aged Care Complaints
Investigation Scheme by Associate Professor Merrilyn Walton, and the
Productivity Commission's 2011 Report, Caring for Older Australians.’[23] The relevant
recommendations are briefly described below.
Walton review
In 2009 the Government commissioned an external review (the
Walton Review) in response to concerns about the administration and
effectiveness of the then Aged Care Complaints Investigation Scheme (the CIS).[24]
The review report made a number of recommendations regarding ‘incorporating a
broader range of resolution processes, in addition to investigation, to support
the resolution of complaints in a timely and effective manner; using a risk
assessment framework to assess and prioritise complaints; and improving
training for staff and communications with stakeholders.’[25]
The Government responded to the Walton Review in April 2010 by committing $50.6
million over four years to reform the CIS.[26]
The Aged Care Complaints Scheme replaced the CIS on 1 September 2011.[27]
One recommendation of the Walton review that the Government
did not implement related to the replacement of the CIS with an independent
Aged Care Complaints Commission. Associate Professor Walton’s stated reasons
for this recommendation included:
- when
an organisation is responsible for regulation as well as complaints, it limits
the ability to admit failures and commit to improvements
- a
separate Aged Care Complaints Commission could dedicate itself to the
resolution of aged care complaints without the competing demands and potential
conflicts existing within the Department (of Health and Ageing)
- it
would remove any concerns about ‘partiality’ and improve trust and
- there
is evidence to support the independence of complaints handling.[28]
Productivity Commission
At the request of the Australian Government, in June 2011
the Productivity Commission released a report recommending significant changes
to the operation and delivery of aged care in Australia.[29]
One recommendation, which was broadly similar to the recommendation of the
Walton review, was to establish an independent regulatory agency including a Commissioner
for Complaints and Reviews to handle consumer and aged care provider complaints
about aged care services.[30]
The Government did not adopt this recommendation in its 2012 response to the
Productivity Commission’s report.[31]
2015–16 Budget
The 2015–16 Budget contained a number of aged care measures
including increasing consumer choice in home care, policy measures delivering
small savings, and cuts to program funds.[32]
One such policy measure announced in the Budget was to move the
Aged Care Complaints Scheme from DSS to the Aged Care Commissioner from 1 January
2016 to ‘strengthen the independence of aged care complaints handling
arrangements’. This measure will deliver projected ‘savings of $2.8 million
over four years by simplifying the aged care complaints handling process.’[33]
Senate Standing Committee for the
Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills had
no comment on the Bill.[34]
Parliamentary Joint Committee on
Human Rights
The Parliamentary Joint Committee on Human Rights concluded
that the Bill does not raise human rights concerns and does not require
additional comment.[35]
No statements by non-government parties specifically
relating to the Bill have been identified.
In general terms, prior to the last election
in 2013, the Australian Labor Party gave greater powers to the Commissioner ‘to
independently examine decisions of the Aged Care Complaints Scheme, and to
order a new resolution process’, while the Australian Greens also had a stated
policy of ‘strengthening the powers of the Aged Care Commissioner.’[36]
The decision to separate complaints handling from DSS has
generally been well received by stakeholders and experts.
The Combined Pensioners and Superannuants Association
(CPSA) has reported ‘many complaints’ from families who believe that the
existing Scheme favours providers and is not behaving as a neutral body.[37]
Ian Yates, CEO of COTA Australia (formerly Council on the Ageing)
has welcomed the decision, which COTA has long called for. Mr Yates believes
that having an ‘independent umpire’ for complaints will ‘give older people
greater confidence in how complaints are handled.’[38]
Merrilyn Walton, who conducted the Walton review in 2009
and is now Professor of Medical Education (Patient Safety) at the University of
Sydney, has welcomed the decision, stating that it ‘reflected best practice and
would help restore public and industry confidence in the [S]cheme.’ However she
has also cautioned that the Commissioner must be adequately funded:
[Professor Walton] hoped the government's decision was not
simply about cost savings and the Aged Care Commissioner would have the
resources to undertake “appropriate resolution processes as well as the deep
dive investigations that are required.”
“Complaints tend to keep increasing with time, so complaints
bodies need to be properly resourced”.[39]
Angela Wood, a partner with law firm Maddocks, specialising
in aged care law, has noted that handling complaints in a single body could
limit delays and duplication, but that ‘processes will be required to keep the
initial investigation and any appeal process separate, including ensuring that
reviews or appeals are managed by different personnel’.[40]
Funding for the Scheme will be transferred to the
Commissioner with the complaints function.[41]
The Explanatory Memorandum states that the Bill will result in $2.8 million in
savings over four years.[42]
These savings are expected to come from ceasing the Commissioner’s existing
review functions as they relate to the Scheme.[43]
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[44]
Transfer of complaints powers to
the Commissioner
The main purpose of the Bill is to transfer responsibility
for aged care complaints from the Secretary of the Department of Social
Services (the Secretary) to the Aged Care Commissioner (the Commissioner).
Currently the Secretary is empowered under the Act and the
Complaints Principles 2014[45]
to investigate, manage and resolve complaints about aged care services.
In relation to complaints, the Act empowers the Secretary
to:
- disclose
protected information to certain people for certain purposes[46]
- appoint
authorised officers who can exercise monitoring powers[47]
and
- enter
premises with the occupier’s consent and ask people at the premises to answer
questions and produce documents.[48]
The Secretary has a range of other responsibilities
relating to regulatory policy, compliance and enforcement.[49]
As such, the Bill does not remove the powers listed above from the Secretary,
but rather replicates a subset of these powers relating to complaints handling
and confers them on the Commissioner.
Item 6 in Schedule 1 inserts new
subsection 86-3(2) into the Act, which allows the Commissioner to disclose
protected information such as personal information to specified persons in
situations where:
- it
is in the public interest
- the
person is authorised to act on behalf of the care recipient or complainant
- there
is serious risk to the safety, health or well-being of a care recipient
- standards
of professional conduct are breached
- criminal
law or fines should be enforced or
- in
accordance with the Information Principles made under section 96-1 of the Act.[50]
Item 11 in Schedule 1 inserts new division
94B—Authorised complaints officers into the Act, which:
- creates
the role of authorised complaints officer, who is an officer of
the Department appointed by the Commissioner to investigate complaints (proposed
section 94B-1)
- details
the complaints powers that can be exercised by authorised
complaints officers (proposed section 94B-2), including:
- searching
premises
- taking
photographs and making records
- inspecting
and copying documents
- securing
items pending the obtaining of a warrant to seize them and
- operating
information technology such as computers and copying relevant information
- empowers
an authorised complaints officer to enter premises with the occupier’s
consent to exercise the above complaints powers (proposed section 94B-3)
and
- empowers
the authorised complaints officer to ask a person at the
premises to answer questions and produce documents (proposed section 94B-4).
As noted above, these are not new powers, but rather a
subset of the monitoring powers that are currently exercised by authorised
officers of the Department.[51]
The stated aim of moving the complaints officers and powers to the Commissioner
is to ‘increase the independence of aged care complaints
handling by separating responsibility for the management of aged care
complaints from the Department of Social Services’ aged care policy and
regulatory functions.’[52]
However, the complaints officers will
still be officers of DSS (although appointed by the Commissioner). Around 130 full-time
equivalent staff of DSS are currently involved in the Aged Care Complaints
Scheme, and they will continue to by employed by the DSS, but will report to
the Commissioner.[53]
Further information on the physical and reporting arrangements to maintain the
independence of the Commissioner has been provided by the Department:
The Aged Care Commissioner’s primary office
is located separately to the Department of Social Services. The independence of
the Office of the Aged Care Commissioner will be maintained as staff will take
direction from and report to the Aged Care Commissioner. Arrangements will be
made to separate staff from broader aged care functions in offices where the
Aged Care Complaints Scheme’s staff and staff of the Department of Social
Services are co-located.[54]
Changes in functions of the
Commissioner
In order to transfer the complaints function to the
Commissioner, the Commissioner’s functions also need to be amended.
The Commissioner’s current functions, as listed in subsection
95A-1(2) of the Act, are to:
- examine
decisions of the Aged Care Complaints Scheme (upon application by a complainant
or approved provider under the Complaints Principles)
- examine
the processes of the Scheme (whether as the result of a complaint or on the
Commissioner’s own initiative)
- examine
the accreditation and review processes of AACQA (whether as the result of a
complaint or on the Commissioner’s own initiative)
- make
recommendations to the Secretary of the Department or the CEO of AACQA arising
from an examination and
- advise
the Minister about any of the above matters.
The Act also confers on the Commissioner any functions
specified in the Complaints Principles 2014.[55]
These Principles do not currently confer any additional functions on the
Commissioner, but the Principles do allow the Commissioner, after they have
examined a decision, to direct the Secretary to undertake a new resolution
process.[56]
Item 16 in Schedule 1 of the Bill repeals
subsection 95A-1(2) of the Act and substitutes a new subsection 95A‑1(2)
which lists the functions of the Commissioner as follows:
- functions
relating to complaints as conferred on the Commissioner by the Complaints
Principles
- to
educate and develop resources relating to best practice complaints handling in
aged care
- any
other functions conferred on the Commissioner by the Complaints Principles or
the Act and
- to
advise the Minister about any of the above matters.
While this has the effect of transferring functions
relating to complaints to the Commissioner, it also removes most of the
Commissioner’s functions from the Act and moves them to the Complaints
Principles. Thus it is not clear exactly what the Commissioner’s functions will
be (other than promoting best practice complaints handling) until the
Complaints Principles are amended or remade. The explanatory memorandum
provides the following information:
It is proposed that the Complaints Principles will detail the
powers of the Aged Care Complaints Commissioner to manage and resolve
complaints and other concerns about Commonwealth subsidised aged care services
through which aged care is provided by approved providers.[57]
The item also removes the Commissioner’s functions to
review complaints decisions and complaints and accreditation processes from the
Act. While it seems clear that the Commissioner will no longer review processes
of AACQA, it is not entirely clear whether the Commissioner will retain some
mechanism to review their own complaints decisions, or whether the Commonwealth
Ombudsman will be the only mechanism of review. The Explanatory Memorandum
states:
The Commissioner will no longer need functions to examine
decisions or processes for handling complaints, because the Commissioner will
now have primary responsibility over the management and resolution of those
complaints under the Complaints Principles. It will also no longer be
appropriate for the Commissioner to consider complaints about the processes of
the Quality Agency. Concerns about those processes can be raised with the
Commonwealth Ombudsman under existing arrangements.[58]
This appears somewhat at variance with the Assistant
Minister’s statement that ‘[w]hen the Commissioner takes responsibility for the
complaints arrangements, review of decisions will be integrated within those
arrangements.’[59]
DSS has given a slightly different characterisation again, stating that while
the ‘Commissioner’s functions to examine the decisions and processes of the
Scheme will cease when the Commissioner takes responsibility for the Scheme’, ‘consumers’
capacity to seek review by the Scheme will remain.’[60]
The exact nature of the proposed review process within the
Scheme may not become clear until the Complaints Principles are amended or
remade.
Name change
The Bill also changes the name of the Commissioner to the
Aged Care Complaints Commissioner to reflect the proposed changes to the
Commissioner’s functions.
The office of Aged Care Commissioner is created by
subsection 95A-1(1) of the Act.
Item 15 in Schedule 1 of the Bill changes the
title of the Commissioner to the Aged Care Complaints Commissioner. Under
section 25B of the Acts Interpretation Act 1901 the ‘office continues in
existence under the new name so that its identity is not affected’.[61]
Other items make consequential amendments to both the Act
and the Australian Aged Care Quality Agency Act 2013 to replace
references to the Aged Care Commissioner with references to the Aged Care
Complaints Commissioner.
Moving complaints handling from DSS to an independent Aged
Care Complaints Commissioner has been called for by a number of reports and
stakeholders and is likely to be welcomed as best practice. Some questions
remain, particularly around the independence of complaints officers who are
also employees of DSS, and how the review process for complaints will operate
when the Commissioner assumes primary responsibility for complaints handling.
These questions may be answered when the subordinate legislation is made.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Parliament
of Australia, ‘Aged
Care Amendment (Independent Complaints Arrangements) Bill 2015 homepage’,
Australian Parliament website, accessed 18 August 2015.
[2]. Aged Care Act 1997,
accessed 18 August 2015.
[3]. Explanatory
Memorandum, Aged Care Amendment (Independent Complaints Arrangements) Bill
2015, p. 1, accessed 3 September 2015.
[4]. Australian Aged Care
Quality Agency Act 2013, accessed 18 August 2015.
[5]. Department
of Social Services (DSS), ‘Using the Guide to Aged
Care Law’, Guides to Social Policy Law website, 9 February 2015, accessed
18 August 2015.
[6]. The
associated Principles are made under section 96-1 of the Act and include the Complaints Principles 2014,
accessed 3 September 2015.
[7]. DSS,
2013–14
Report on the operation of the Aged Care Act 1997, DSS, Canberra, 2014,
pp. ix-x, accessed 18 August 2015.
[8]. Ibid.,
pp. 34, 42.
[9]. Aged
Care Act 1997, section 2–1.
[10]. M
Fifield (Assistant Minister for Social Services), ‘Second
reading speech: Aged Care Amendment (Independent Complaints
Arrangements) Bill 2015’, Senate, Debates,
13 August 2015, p. 26, accessed 24 August 2015.
[11]. DSS,
‘Aged
Care Complaints Scheme now part of Department of Social Services’, Aged
Care Complaints Scheme website, 2 October 2013, accessed 24 August 2015.
[12]. DSS,
‘About
the Scheme’, Aged Care Complaints Scheme website, accessed 24 August 2015.
[13]. DSS,
2013–14 Report on the operation of the Aged Care Act 1997, op. cit., pp. 80–82.
[14]. DSS,
‘Raise a
concern’, Aged Care Complaints Scheme website, accessed 25 August 2015.
[15]. DSS,
2013–14 Report on the operation of the Aged Care Act 1997, op. cit., pp. 82-85.
[16]. DSS,
Annual
report, 2013–14, DSS, Canberra, p. 95, accessed 25 August 2015.
[17]. DSS,
2013–14 Report on the operation of the Aged Care Act 1997, op. cit., p. 86.
[18]. Aged
Care Act 1997, section 95A–1.
[19]. Aged
Care Commissioner, Annual
report, 2013–14, Office of the Aged Care Commissioner, Melbourne, pp.
7–8, accessed 25 August 2015.
[20]. Ibid.,
pp. 12–16.
[21]. Ibid.,
p. 27.
[22]. DSS, Independent Aged Care Complaints arrangements, Budget fact sheet, DSS, 2015, accessed 1 September.
[23]. M
Fifield, ‘Second reading speech: Aged Care Amendment (Independent Complaints
Arrangements) Bill 2015’, op. cit.
[24]. J
Elliot (Minister for Ageing), Aged
Care - Public Input Sought for Complaints Review, media release, 25
July 2009, accessed 3 September 2015.
[25]. Australian
National Audit Office (ANAO), Managing
aged care complaints: Department of Health and Ageing, Audit report, 10,
2012–13, ANAO, Barton, ACT, 2012, p. 33, accessed 25 August 2015.
[26]. Australian
Government, ‘Part
2: Expense measures’, Budget measures: budget paper no. 2: 2010–11,
p. 223, accessed 3 September 2015.
[27]. Ibid,
pp. 33-35.
[28]. M
Walton, Review
of the Aged Care Complaints Investigation Scheme, 2009, pp. 12–13,
accessed 25 August 2015.
[29]. R
de Boer, ‘Caring for Older Australians report: a sector in need of reform’, FlagPost, Parliamentary Library blog, 16 August 2011, accessed
25 August 2015.
[30]. Productivity Commission, Caring for Older Australians, vol. 2,
Productivity Commission, Canberra, 2011, p. 422, accessed 25 August 2015.
[31]. Department
of Health and Ageing (DoHA), Living
longer. Living better. Aged care reform package, DoHA, 2012, accessed
25 August 2015.
[32]. A
Grove, ‘Aged
care’, Budget review 2015-16, Research paper series, 2014–15,
Parliamentary Library, Canberra, 2015, p. 128, accessed
25 August 2015.
[33]. Australian Government, Budget measures: budget paper no. 2: 2015–16, p. 148, accessed 25 August 2015.
[34]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 8, 2015, The Senate, 19 August 2015, p. 1, accessed 31 August
2015.
[35]. Parliamentary
Joint Committee on Human Rights, Twenty-sixth
report of the 44th Parliament, 18 August 2015, p. 1, accessed
31 August 2015.
[36]. J
Collins, (Minister for Mental Health and Ageing), Historic
reforms to Australia’s aged care system start today, media release, 1
August 2013; Australian Greens, Caring
for older Australians: equity, access & respect, Australian Greens
policy document, Election 2013, both accessed 31 August 2015.
[37]. J
Strachan, ‘Secrecy over aged care complaints’, Canberra
Times, 28 September 2014, p. 11, accessed 27 August 2015.
[38]. COTA Australia, Budget 2015: Next big step in aged care revolution, media release, 12 May 2015, accessed 27 August 2015.
[39]. L
Belardi, ‘Resourcing
of commissioner highlighted’, Australian Ageing Agenda, July–August 2015,
p. 10, accessed 27 August 2015.
[40]. Ibid.
[41]. Senate
Community Affairs Committee, Answers to Questions on Notice, Social Services
Portfolio, Budget Estimates 2015–16, 4 June 2015, Question
SQ15-000392, accessed 18 August 2015.
[42]. Explanatory
Memorandum, Aged Care Amendment (Independent Complaints Arrangements) Bill
2015, p. 1, accessed 18 August 2015.
[43]. Senate
Community Affairs Committee, op. cit., Question
SQ15-000391, accessed 18 August 2015.
[44]. The
Statement of Compatibility with Human Rights can be found at page 1 of the
section titled ‘Statement of Compatibility with Human Rights’ in the Explanatory
Memorandum to the Bill.
[45]. Complaints Principles 2014,
accessed 26 August 2015.
[46]. Aged
Care Act 1997, section 86-3.
[47]. Aged
Care Act 1997, sections 90-3 and 90-4.
[48]. Aged
Care Act 1997, sections 91-1 and 91-2.
[49]. M
Fifield, ‘Second reading speech: Aged Care Amendment (Independent Complaints
Arrangements) Bill 2015’, op. cit.
[50]. Explanatory
Memorandum, Aged Care Amendment (Independent Complaints Arrangements) Bill 2015,
op. cit., pp. 3-4; Information
Principles 2014, accessed 3 September 2015.
[51]. See
sections 90-4, 91-1, 91-2 and 91-3 of the Aged Care Act 1997.
[52]. Explanatory
Memorandum, Aged Care Amendment (Independent Complaints Arrangements) Bill
2015, op. cit., p. 1.
[53]. Senate
Community Affairs Committee, op. cit., Question
SQ15-000390, accessed 26 August 2015.
[54]. Ibid.;
Question
SQ15-000393, accessed 26 August 2015.
[55]. Aged
Care Act 1997, paragraph 95A-1(2)(g).
[56]. Complaints
Principles 2014, paragraph 26(2)(c).
[57]. Explanatory
Memorandum, Aged Care Amendment (Independent Complaints Arrangements) Bill 2015,
op. cit., p. 10.
[58]. Ibid.
[59]. M
Fifield, ‘Second reading speech: Aged Care Amendment (Independent Complaints
Arrangements) Bill 2015’, op. cit.
[60]. Senate
Community Affairs Committee, op. cit., Question
SQ15-000388, accessed 27 August 2015.
[61]. Acts Interpretation Act
1901, accessed 27 August 2015.
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