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Thursday, 22 March 2007
Page: 127

Senator WORTLEY (8:09 PM) —I rise to speak on the Aged Care Amendment (Security and Protection) Bill 2007. This is a bill that Labor supports in principle but has argued, and continues to argue, that it does not go far enough to protect Australia’s most frail and vulnerable people: its elderly citizens. These are citizens who are now reaching the closing stages of their lives; citizens who have paid their dues to our society. We are talking about elderly women who scrimped and saved to bring up their children during the Great Depression of the 1930s, some of whom took over their husband’s jobs when their men went to serve the country during World War 2. Many of these women were forced back into their homes when they lost their jobs after the birth of their children. Most never got equal pay for their work or even decent superannuation. I speak also for their men—men who came home physically and mentally damaged after the war. Some came back to broken homes or to children who were estranged from them—children who did not know what a father was. Some never had a chance to find out.

For too long the Howard government has paid lip-service to this most admirable group in our community. Is it due to insensitivity, incompetence or merely flagrant arrogance that the current government has failed to act to adequately protect this most vulnerable group? Now, under pressure in an election year, it has finally tabled its amendment to the Aged Care Act of 1997 with alarming alacrity. More cynical persons than I would suggest that it has rushed this bill through the lower house and into the Senate in only matter of weeks with scant respect for either the citizens whose welfare it claims to protect or the many health workers and carers’ who, under unsatisfactory conditions, have tried to nurture and protect these elderly citizens in comfort and dignity. Many of these professionals and carers are poorly paid, and they have one of the least powerful positions in our workplace.

Labor support the Aged Care Amendment (Security and Protection) Bill 2007. However our concern is that it is incomplete and it just does not go far enough. I argue that the bill is narrow in its viewpoint. It does not deal adequately with the issues of abuse and is unlikely to achieve the desired outcome. I acknowledge also that there are some positives. The new bill’s intention to protect people in aged care from physical and sexual assaults is admirable. Its intention to offer providers and staff who report these assaults protection is admirable too. The bill intends to do this by establishing complaints and investigation procedures and arrangements. The appointment of an aged-care commissioner to replace the existing commissioner of complaints is a step in the right direction.

Although the parliamentary committee inquiry into this bill found that there was general support within the community, submissions raised concerns about the scope of the reporting requirements. Common themes among submissions included the requirement to report to the police and the reluctance to report resident-on-resident and resident-on-staff situations. Others raised doubts about the practicality of the system and proposed alternatives to the amendments. Aged and Community Services Australia pointed out that an allegation must be reported whether it is based on reasonable grounds or not, but not suspicions. Should not the same test apply to suspicions also?

Conversely, Australian Unity supported the mandatory reporting of all allegations, even when there were no grounds to suspect a reportable offence, on the basis that requiring reasonable grounds before requiring a report would limit the number of vexatious claims. Australian Unity felt that excessive police involvement was unnecessary because it would overburden the system. It argued that care providers should report only where there were reasonable grounds to suspect assault. Other issues about compulsory reporting were also raised in the committee’s hearing. Claims were made that police and department resources would be overloaded.

The department’s view was different again. It strongly believed that a blanket exemption for all aged-care residents was not defensible. It pointed out that there are over 170,000 people every night in residential care, which represents a complete slice of the human community in Australia. It argued that some had been past perpetrators of very serious crime, some were bullies and others predators. It said that there had been some really grievous examples of resident-on-resident abuse in the past. A number of witnesses and submissions criticised the language used, which they felt was insensitive—for example, phrases like ‘unreasonable force’. Others questioned the clarity and imprecision of phrases like ‘start to suspect’ and expressed concern about the vagueness of the definition of certain basic terms and words.

While compulsory reporting is a desired outcome, it is Labor’s position that the 1.30 rule, as it now stands in the bill, is sketchy and open to misinterpretation and abuse. Labor shadow minister for ageing, disabilities and carers, Senator Jan McLucas, has consistently argued that the bill is being rushed through parliament with little time to examine its detail and, as a consequence, its implications. The principles that underpin this bill were not ready for the Senate inquiry and so were unable to be examined. Senator McLucas has contended that, if the intended implementation date of the legislation, 1 April 2007, had been enforced, it would have created chaos. These views are backed up by the bipartisan Senate inquiry report on the bill. The government has also realised this, as demonstrated by its amendment to delay the implementation of the measures in the bill, with schedule 1 being deferred to 1 May 2007 and schedule 2 to 1 July 2007.

The bill also fails to address some other very important issues. Firstly, the unenviable role of whistleblowers. How much protection do they have? As the Aged Care Crisis Team pointed out in its submission: ‘Whistleblowers are only protected if they report reportable offences.’ Once again, whistleblowers will get no protection if they are compelled by their ethics and moral beliefs to take action in seeking justice for those too vulnerable to speak or advocate for themselves.

Another weakness in the bill is that it does not cover many cases of abuse. This, of course, rather defeats the purpose of it, as it leaves most people—victims, their families, nursing homes and whistleblowers—almost powerless to act in these situations. Then there are financial abuses and abuses of physical neglect. What protection is there in the bill for family members or visitors who report physical abuse? What protection is there for an individual staff member who is victimised? If the bill remains as it is, it seems that even the Commonwealth government will be powerless to act in such situations.

The Health Services Union has very serious concerns, too. It wants to ensure:

... that employees would be sufficiently compensated including all financial and other costs involved in the victimisation such as legal costs and compensation for pain and suffering where applicable.

Limitations to the position, power and functions of the proposed Age Care Commissioner was another concern raised in various submissions. It was suggested that the position of the Aged Care Commissioner was not sufficiently separate from the Department of Health and Ageing. Catholic Health Australia also raised the potential risk of conflicts of interest arising which could jeopardise the commissioner’s ability to follow a proper course of action in some incidents. Such criticisms deserve to be looked at far more closely to analyse their validity and to see what they might mean.

It will no doubt come as no surprise that another query relates to the ‘$90.2 million over four years’ package of reforms referred to in the explanatory memorandum. It claimed that there was insufficient information on it in the bill. A more detailed breakdown of how the moneys are to be carved up has since been given by the department, but the committee should have been given this information much earlier. The list of concerns goes on and on, and it would take more time than I have available here today to enumerate them all. What I want to stress, however, is that every one of these queries supports the argument that the bill has been rushed far too quickly through the parliament, before it has been properly drafted. It is equally important to get it right. Time to clear up discrepancies is important.

I speak to this bill with passion. The pensioners, the frail and the elderly are not merely a segment of our society. They are our grandparents, parents, aunts, uncles, cousins, siblings, neighbours and friends. Ultimately, they will be us. Too often, these clever and dignified elders are treated as though they have passed their use-by date. Many are moved around locations like cans of beans on a supermarket shelf. Some are treated as infants or talked down to as imbeciles. Anything this parliament can do to protect them from all forms of physical and mental abuse should be done. We should never forget that this was the generation that shaped our country and gave it its personality. This generation made Australia internationally popular with their humour, honesty and easy going nature. They lived by the work ethic and the importance of family as being central to our society. These values never go out of date. We owe them a debt.

We need to ensure that this bill properly protects older people. We need to address the issues that are outstanding today and then pass legislation that will genuinely address the needs of those to whom our generation and future generations owe so much.