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Aged Care Amendment (Security and Protection) Bill 2007

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2004-2005-2006-2007

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

AGED CARE AMENDMENT (SECURITY AND PROTECTION) BILL 2007

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of Senator the Hon Santo Santoro, Minister for Ageing)



 

AGED CARE AMENDMENT (SECURITY AND PROTECTION) BILL 2007

 

OUTLINE

 

The purpose of the Bill is to amend the Aged Care Act 1997 (the Act) to:  

 

·          establish a scheme for compulsory reporting of abuse.  The Bill establishes a requirement for approved providers to:

 

Ø   report to the police and to the Secretary to the Department of Health and Ageing, incidents involving alleged or suspected reportable assaults.  The report must be made within 24 hours of the allegation or the approved provider starting to suspect a reportable assault.  A reportable assault is defined in the Bill, and includes unlawful sexual contact, unreasonable use of force, or assault specified in Accountability Principles made under the Act (and constituting an offence against a law of the Commonwealth or a State or Territory);

Ø   take reasonable measures to ensure staff members report any suspicions or allegations of reportable assaults to the approved provider (or one of the approved provider’s key personnel, or a person authorised by the approved provider to receive reports), the police or the Secretary; and

Ø   take reasonable measures for protecting the identity of any person who makes a report of a reportable assault.

 

      Failure to have the necessary systems and protocols in place, and failure to report such incidents, may lead to compliance action and the possible imposition of sanctions.

 

·          underpin these new compulsory reporting arrangements with protections for approved providers and their staff who make disclosures about reportable assaults.  Recognising that people will be more likely to report incidents of assault where they do not fear reprisal from their employer or other staff, protections for people who make certain disclosures have been included in this Bill;

 

·          enable the establishment of complaints investigation arrangements through new Investigation Principles; and

 

·          establish the new role of Aged Care Commissioner, to replace the existing Commissioner for Complaints.  The new Commissioner will independently examine certain actions taken by the Department of Health and Ageing in relation to the investigation of complaints and about the conduct of the Aged Care Standards and Accreditation Agency and its assessors.  The Aged Care Commissioner will also have the capacity to undertake “own motion” examinations of certain matters.

 

FINANCIAL IMPACT STATEMENT

 

The new initiatives that are implemented through this Bill are part of a $90.2 million (over four years) package of reforms aimed at further safeguarding older people in Australian Government-subsidised aged care from sexual and serious physical assault.

 



AGED CARE AMENDMENT (SECURITY AND PROTECTION BILL) 2007

 

NOTES ON CLAUSES

 

Clause 1 - Short title

 

This clause provides that the Act may be cited as the Aged Care Amendment (Security and Protection) Act 2007 .

 

Clause 2 - Commencement

 

This clause provides that the Act commences on 1 April 2007.  This means that approved providers will be expected to start complying with the new responsibilities imposed by this legislation (including new responsibilities to compulsorily report certain assaults) from 1 April 2007.

 

Clause 3 - Schedules

 

This clause provides that each Act that is specified in a Schedule to this Act is amended or repealed as set out in the relevant Schedule.  Any other item operates according to its terms.

 

Schedule 1 - Investigations

 

Aged Care Act 1997

 

Item 1

Section 56-4 sets out an approved provider’s responsibilities in relation to internal complaints resolution mechanisms.  In accordance with this section, all approved providers will continue to be expected to establish and maintain internal complaints resolution mechanisms.  However, paragraph 56-4(1)(e) currently requires approved providers to comply with any determinations made by a Complaints Resolution Committee or Determination Review Panel.  As these bodies will be replaced as part of the new system for the investigation of complaints, this paragraph requires amendment. 

 

This item therefore repeals paragraph 56-4(1)(e) and substitutes it with a new paragraph that requires approved providers to comply with any requirement made of the approved provider under the Investigation Principles.

 

A note at the end of the item clarifies that the repeal and substitution of paragraph 56-4(1)(e) does not affect an obligation an approved provider had under that paragraph before its repeal to comply with a determination of a complaint by a committee.   In other words, if a determination has been issued by a committee prior to 1 April 2007, then an approved provider will still be required to comply with the determination after 1 April 2007 (the commencement of the new provisions).

 

Item 2 

Section 84-1 describes what is contained in Chapter 6 (Administration) of the Act.  This item repeals the existing description of the Chapter and replaces it with a new description which includes the new parts that have been added to the chapter through the amendments described in Schedule 1.



Section 84-1  What this Chapter is about

Section 84-1 describes the matters that are dealt with in this Chapter, namely:

 

·          reconsideration and administrative review of decisions (see Part 6.1).  This Part is not affected by the amendments in this Bill;

 

·          protection of information (see Part 6.2).  A minor amendment is being made to section 86-9 within this Part (refer item 3);

 

·          record-keeping obligations of approved providers (see Part 6.3). This Part is not affected by the amendments in this Bill;

 

·          powers of officers in relation to monitoring compliance and offences (see Part 6.4).  This Part is not affected by the amendments in this Bill;

 

·          investigations of matters relating to this Act or the Principles made under section 96-1 (see Part 6.4A).  Part 6.4A is a new Part describing investigations.  This Part is being inserted into the Act through item 4 of this Bill; 

 

·          recovery of overpayments by the Commonwealth (see Part 6.5).  This Part is not affected by the amendments in this Bill; and

 

·          the Aged Care Commissioner, whose functions include examining certain matters relating to investigations (see Part 6.6).  This is a proposed new Part of the Act (refer item 5 of this Bill).

 

Item 3

This item repeals subsection 86-9(3).  Subsection 86-9(3) currently provides that the Secretary may make information about the outcome of a complaint relating to an aged care service available to the complainant.  This subsection is being removed because all of the provisions relating to information that is provided to the Department by informants (including complaints) will be addressed in the new Investigation Principles that will be made under the Act. 

 

The Investigation Principles will include detailed information about the means by which informants will receive feedback about complaints or other information provided to the Department for investigation.  Disclosure of personal information to informants as required or permitted by the Investigation Principles will not be an offence under section 86-2 because it will fall within the exemptions specified in paragraph 86-2(2)(a).

 

Item 4

This item inserts a new Part after Part 6.4.

 

Part 6.4A - Investigations

Division 94A - Investigation Principles

 

Section 94A-1  Investigation Principles

Subsection (1) provides that the Investigation Principles (made by the Minister under section 96-1) may make provision relating to the investigation of matters (including complaints) relating to this Act or the Principles made under section 96-1, including provision relating to one or more of the following:

 

·          which matters are to be investigated;

 

·          how investigations are to be conducted;

 

·          considerations in making decisions relating to investigations; and

 

·          procedures for reconsideration or examination of decisions relating to investigations.

 

Subsection (2) provides that the Investigation Principles may also make provision relating to actions that may be taken by the Department if it is found in an investigation that an approved provider has not complied with its responsibilities under Part 4.1 (Quality of Care), 4.2 (User Rights) or 4.3 (Accountability).  For example, it is proposed that the Investigation Principles will enable the Department to give an approved provider a ‘Notice of Required Action’ requiring the approved provider to remedy the breach of the approved provider’s responsibilities under the legislation.

 

Subsection (3) provides that the Investigation Principles may make provision of a transitional or saving nature relating to complaints that were made in accordance with the Committee Principles as they existed immediately before the commencement of these new provisions (that is, complaints that were made prior to 1 April 2007).

 

Subsection (4) provides that, to avoid doubt, this Part and the Investigation Principles do not affect any of the following:

 

·          paragraph 56-4(1)(d) (about giving people authorised to investigate complaints access to an aged care service as specified in the User Rights Principles);

 

·          the User Rights Principles;

 

·          Part 4.4 (Consequences of non compliance);

 

·          the Sanctions Principles; and

 

·          the other Parts of this Chapter (except Part 6.6).

 

Item 5

This item inserts a new Part at the end of Chapter 6 (Part 6.6 - Aged Care Commissioner).

 

Part 6.6 - Aged Care Commissioner

Division 95A - Aged Care Commissioner

 

Section 95A-1  Aged Care Commissioner

This section establishes the Aged Care Commissioner and provides that the functions of the Aged Care Commissioner are:

 

·          to examine certain decisions made by the Secretary under the Investigation Principles.  It is proposed that the Investigation Principles will detail which decisions of the Secretary a person may request the Aged Care Commissioner to examine.  Following an examination, the Commissioner may make recommendations to the Secretary arising from the examination;

 

·          to examine complaints made to the Aged Care Commissioner about the Secretary’s processes for handling matters under the Investigation Principles, and make recommendations to the Secretary arising from the examination;

 

·          to examine, on the Aged Care Commissioner’s own initiative, the Secretary’s processes for handling matters under the Investigation Principles, and make recommendations to the Secretary arising from the examination;

 

·          to examine complaints made to the Aged Care Commissioner about: the conduct of an accreditation body (currently the Aged Care Standards and Accreditation Agency) relating to its responsibilities under the Accreditation Grant Principles; or the conduct of a person carrying out an audit, or making a support contact, under those Principles.  The Aged Care Commissioner may also make recommendations to the accreditation body, arising from the examination.  The functions of the Aged Care Commissioner expressly exclude examination of a complaint about the merits of a decision under those Principles.  This recognises that such decisions are subject to review by the Administrative Appeals Tribunal and the Federal Court;

 

·          to examine, on the Aged Care Commissioner’s own initiative: the conduct of an accreditation body relating to its responsibilities under the Accreditation Grant Principles; and the conduct of persons carrying out audits, or making support contacts, under those Principles.  The Aged Care Commissioner will be focusing on the conduct of the accreditation body and its staff and not on the merits of any particular decision made by the accreditation body under the Accreditation Grant Principles.  The Aged Care Commissioner may make  recommendations to the accreditation body based on the Aged Care Commissioner’s examination of its conduct;

 

·          to advise the Minister, at the Minister’s request, about matters relating to any of the Aged Care Commissioner’s functions; and

 

·          the functions (if any) specified in the Investigation Principles.  This power provides some flexibility to broaden the functions of the Aged Care Commissioner yet also ensures that there is appropriate Parliamentary scrutiny of any proposed additional functions of the Commissioner.

 

Section 95A-2  Appointment

This section provides that the Aged Care Commissioner is to be appointed by the Minister by written instrument either on a full-time or part-time basis.  The Aged Care Commissioner holds office for the period specified in the instrument of appointment.  The term of an appointment must not exceed 3 years.  However, a person may be re-appointed for further terms (as provided for by the Acts Interpretation Act 1901 ).

 



Section 95A-3  Acting appointments

Subsection (1) provides that the Minister may appoint a person to act as the Aged Care Commissioner:

 

·          when there is a vacancy in the office of the Aged Care Commissioner (whether or not an appointment has previously been made to the office); or

 

·          when the Aged Care Commissioner is absent from duty, or from Australia, or is unable to perform the duties of the office.

 

Subsection (2) clarifies that anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:

 

·          the occasion for the appointment had not arisen; or

 

·          there was a defect or irregularity in connection with the appointment; or

 

·          the appointment had ceased to have effect; or

 

·          the occasion to act had not arisen or had ceased.

 

Section 95A-4  Remuneration

This section provides that, subject to the Remuneration Tribunal Act 1973, the Aged Care Commissioner is to be paid the remuneration that is determined by the Remuneration Tribunal.  If no determination exists, the Aged Care Commissioner is to be paid the remuneration that is prescribed by the Investigation Principles.

 

The Aged Care Commissioner is also to be paid the allowances that are prescribed by the Investigation Principles.

 

Section 95A-5  Leave of absence

This section provides that if the Aged Care Commissioner is appointed on a full time basis, he or she has the recreation leave entitlements that are determined by the Remuneration Tribunal.  The Minister may grant the Commissioner leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

 

If the Aged Care Commissioner is appointed on a part time basis, the Minister may grant leave of absence to the Aged Care Commissioner on the terms and conditions that the Minister determines.

 

Section 95A-6  Other terms and conditions

This section provides that any other terms and conditions of the Aged Care Commissioner (that is, any other terms and conditions that are not mentioned in this Part of the Act) are determined by the Minister.

 

Section 95A-7  Restrictions on outside employment

This section provides that if the Aged Care Commissioner is appointed on a full time basis, he or she must not engage in paid employment outside the duties of the Aged Care Commissioner’s office without the Minister’s approval.



If the Aged Care Commissioner is appointed on a part time basis, he or she must not engage in any paid employment that conflicts or may conflict with the proper performance of his or her duties.

 

Section 95A-8  Disclosure of interests

This section provides that the Aged Care Commissioner must give written notice to the Minister of all interests, pecuniary or otherwise, that the Commissioner has, or acquires, that could conflict with the proper performance of the Commissioner’s functions.

 

Section 95A-9  Resignation

This section provides that the Aged Care Commissioner may resign his or her appointment by giving the Minister a written resignation.

 

Section 95A-10  Termination of appointment

This section provides that the Minister may terminate the appointment of the Aged Care Commissioner for misbehaviour or physical or mental incapacity.

 

The Minister must terminate the appointment of the Aged Care Commissioner if the Aged Care Commissioner:

 

·          becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for the benefit of his or her creditors; or

 

·          is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

 

·          is appointed on a full time basis and engages, except with the Minister’s approval, in paid employment outside the duties of his or her office, or is appointed on a part time basis and engages in paid employment that conflicts or could conflict with the proper performance of the duties of his or her office; or

 

·          fails, without reasonable excuse, to comply with section 95A-8.  Section 95A-8 requires that the Commissioner must give written notice to the Minister of all interests, pecuniary or otherwise, that the Commissioner has or acquires that could conflict with the proper performance of the Commissioner’s functions.

 

Section 95A-11  Delegations of Aged Care Commissioner’s functions

This section provides that the Aged Care Commissioner may delegate in writing all or any of his or her functions to an APS employee in the Department. 

 

Consideration was given to limiting the power to delegate to certain functions or to certain people (for example, members of the Senior Executive Service).  However it was not considered that this is appropriate for the following reasons.  Each of the functions of the Commissioner will involve tasks that are high-level (and appropriately carried out by the Commissioner) and tasks that are of a minor administrative nature.  An example of an administrative task may be, for example, notifying a complainant about the outcome of a complaint or organising meetings between complainants and approved providers as part of the examination of an issue.  These types of tasks should be able to be delegated by the Aged Care Commissioner.  



In summary, a wide range of sub-functions (which will be further described in the new Investigation Principles which will set out some of the processes of the Aged Care Commissioner) will need to be delegated within the office of the Aged Care Commissioner.

 

In order to ensure that the Aged Care Commissioner has due regard to the nature of the tasks to be delegated, and the appropriateness of the person to whom the delegation is proposed to be made, an express provision has been included in the Act requiring the Aged Care Commissioner to have regard to the function to be performed by the delegate and the responsibilities of the APS employee to whom the function is delegated.  This is consistent with the existing subsection 96-2(2) of the Act, which also requires the Secretary to consider these matters when delegating powers in accordance with section 96-2(1) of the Act.

 

Subsection 95A-11(3) provides that a delegate who is performing functions delegated by the Aged Care Commissioner must comply with any directions of the Aged Care Commissioner.

 

Section 95A-12  Annual report

This section provides that the Aged Care Commissioner must, as soon as practicable after the end of each financial year, prepare and give to the Minister, for presentation to the Parliament, a report on the Aged Care Commissioner’s operations during that year.  Section 34C of the Acts Interpretation Act 1901 contains extra rules about annual reports. 

 

For example, section 34C of the Acts Interpretation Act 1901 provides that:  

 

·          where an Act requires a person to furnish a periodic report to a Minister, but does not specify a period within which the report is to be so furnished, that person shall furnish the report to the Minister as soon as practicable after the end of the particular period to which the report relates and, in any event, within 6 months after the end of that particular period;

 

·          where an Act requires a person to furnish a periodic report to a Minister for presentation to the Parliament, but does not specify a period within which the report is to be so presented, that Minister shall cause a copy of the periodic report to be laid before each House of the Parliament within 15 sitting days of that House after the day on which he receives the report; and

 

·          if it is not possible to meet the time requirements, a person may apply to the Minister for an extension of the period, and the Minister may grant an extension.

 

Subsection (2) of proposed new section 95A-12 provides that the Aged Care Commissioner must include in the report:

 

·          the number of decisions made by the Secretary under the Investigation Principles that the Aged Care Commissioner examined during the financial year;

 

·          the number of complaints about the following matters (examinable complaints) that were made to the Aged Care Commissioner during the financial year:

-            administrative processes adopted by the Secretary in relation to the handling of matters under the Investigation Principles;

-            the conduct of an accreditation body relating to its responsibilities under the Accreditation Grant Principles;

-            the conduct of a person carrying out an audit or support contact under those Principles;

 

·          the number of examinable complaints that the Aged Care Commissioner started to examine during the financial year;

 

·          the number of examinable complaints that the Aged Care Commissioner finished examining during the financial year;

 

·          a summary of the nature of the examinations made by the Aged Care Commissioner during the financial year of examinable complaints;

 

·          the number of examinations made by the Aged Care Commissioner on his or her own initiative during the financial year;

 

·          a summary of the nature of examinations made by the Aged Care Commissioner on his or her own initiative during the financial year;

 

·          the number of requests for advice the Minister made to the Aged Care Commissioner during the financial year;

 

·          a summary of the nature of those requests;

 

·          a summary of the nature of advice given by the Aged Care Commissioner to the Minister during the financial year in response to requests by the Minister; and

 

·          any other information required by the Investigation Principles to be included in the report.

 

Item 6

This section amends the table in subsection 96-1(1) (which lists all of the Principles made under the Act) by inserting a reference to Investigation Principles.  The effect of this is that the Minister may make the proposed new Investigation Principles.  Proposed new Part 6.4A sets out more detail about what is proposed to be included in the Investigation Principles (refer item 4). 

 

While the new Investigation Principles will largely replace the existing Committee Principles, the Committee Principles are not being repealed at this time because it may be necessary to retain parts of these Principles to deal with complaints made prior to the commencement of the new Investigation Principles on 1 April 2007.  It is not intended that any complaints received after 1 April 2007 would be dealt with under the Committee Principles.

 

Item 7 

This item amends subsection 96-2(1) (which describes the Secretary’s power to delegate) to enable the Secretary to delegate powers to the Aged Care Commissioner.

 

The heading of section 96-2 is also changed from “Delegations” to “Delegations of Secretary’s powers and functions”.  This distinguishes this section from the new section (section 95A-11) that deals with delegations by the Aged Care Commissioner of his or her functions.

 

Item 8

This item repeals subsection 96-3(2) of the Act.  This subsection describes the matters that may be included in Committee Principles in relation to the resolution of complaints.  As complaints will no longer be dealt with under the Committee Principles after 1 April 2007 (as complaints will be dealt with under the new Investigation Principles), the subsection has been repealed.

 

Item 9

Clause 1 of Schedule 1 sets out the definitions used in the Act.  This item inserts a new definition of Aged Care Commissioner in that Schedule.  Aged Care Commissioner means the Aged Care Commissioner holding office under the new Part 6.6.

 

Schedule 2 - Reporting assaults

 

Aged Care Act 1997

 

Item 1

This item inserts a new section after section 63-1 (section 63-1AA).

 

Section 63-1AA  Responsibilities relating to alleged and suspected assaults

This section sets out the responsibilities of an approved provider of residential care in relation to an allegation or suspicion of a “reportable assault”. 

 

In summary, a “reportable assault” is defined in subsection (9) to mean unlawful sexual contact, unreasonable use of force, or assault specified in the Accountability Principles (and constituting an offence against a law of the Commonwealth or a State or Territory), that is inflicted on a person receiving Commonwealth funded residential aged care services.

 

Section 63-1AA requires the approved provider to:

 

·          Report reportable assaults - In summary, if the approved provider receives an allegation of, or starts to suspect on reasonable grounds, a reportable assault, the approved provider is responsible for reporting the allegation or suspicion as soon as reasonably practicable, and in any case within 24 hours.  The report must be made to a police officer (with responsibility relating to an area including the place where the assault is alleged or suspected to have occurred) and to the Secretary to the Department of Health and Ageing.

 

The only exception to this requirement (when an approved provider has the discretion not to report) is in the circumstances (if any) specified in the Accountability Principles.  However, in these circumstances, the approved provider is responsible for complying with any alternative requirements detailed in those Principles.  The capacity to describe certain circumstances in the Principles, where reporting to police and the Department is not mandated, is intended to deal with very specific and sensitive circumstances such as minor assaults perpetrated by residents with a diagnosed mental impairment (such as dementia). 

 

The aged care sector has advised that minor assaults by such residents (for example pushing and hitting) are not uncommon and in such cases the focus should be on behaviour management and not police and Departmental involvement which can be traumatic for all involved. 

Recognising these concerns, provision has been made for the Principles to describe alternative arrangements for these very specific circumstances where the focus should be on effective behaviour management. This approach enables cases involving residents with a mental impairment to be clinically managed by the approved provider where this is the most appropriate response. 

 

These alternative arrangements, to be specified in the Principles, will be subject to Parliamentary scrutiny (as Principles are legislative instruments made under section 96-1 of the Act).   

 

The provision also makes it clear that the new obligations on approved providers to report (or the discretion not to report if the circumstances described in the Principles exist) do not in any way affect any obligation the approved provider has under another State or Territory law to report a reportable assault (or an allegation or suspicion of a reportable assault).  Similarly, the new requirements do not prevent an approved provider from reporting any assault (regardless of whether it is defined as a reportable assault under this Act) to the police or the Department. 

 

·          Require staff members to report reportable assaults - Staff members are defined in subsection (9) to mean an individual who is employed, hired, retained or contracted by the approved provider (whether directly or through an employment or recruiting agency) to provide care or other services.  The approved provider is responsible for taking reasonable measures to require each of its staff members (who suspects on reasonable grounds that a reportable assault has occurred) to report the suspicion as soon as reasonably practicable to one or more of the following people, as chosen by the staff member:

 

-            the approved provider;

 

-            one of the approved provider’s key personnel;

 

-            another person authorised by the approved provider to receive reports of suspected reportable assaults;

 

-            a police officer with responsibility relating to an area including the place where the assault is suspected to have occurred; or

 

-            the Secretary.

 

         The provision makes it clear that the staff member can report to any of these people (and may choose to report to more than one person).  In particular, staff members are given the option of reporting directly to the police or the Secretary to the Department of Health and Ageing. This may occur where, for example, a staff member does not feel comfortable reporting alleged incidents to their employer.

 

·          Ensure staff member informants are not victimised - The approved provider is responsible for ensuring, as far as reasonably practicable, compliance with the following provisions in relation to a staff member of the approved provider who makes a protected disclosure;

 

-            96-8(2)(b) - This paragraph requires that no contractual or other remedies are enforced or exercised against a person on the basis of a disclosure.  The approved provider must ensure, as far as reasonably practicable, that any staff member who makes a disclosure does not have contractual remedies enforced or exercised against them because they made a protected disclosure;

 

-            96-8(3)(b) - This paragraph provides that if a person who makes a disclosure is a party to a contract then that contract may not be terminated on the basis that the disclosure constitutes a breach of contract.  The approved provider must ensure, as far as reasonably practicable, that any contract with a staff member who makes a disclosure is not terminated on the grounds that the staff member made the protected disclosure;

 

-            96-8(6) - This subsection provides that a person must not cause detriment to another person because they have made a protected disclosure.  The responsibility to ensure staff member informants are not victimised requires compliance not only by the approved provider but extends to the approved provider ensuring as far as reasonably practicable that there is also compliance by others, such as other staff members of the approved provider and other parties with whom the approved provider contracts (for example, an employment agency); and

 

-            96-8(7) - This subsection requires that a person must not threaten another person because they made a protected disclosure.  As for each of the other provisions, the approved provider must ensure, as far as reasonably practicable, that any staff member who makes a disclosure does not suffer threats because they made a protected disclosure.

 

·          Protect informants’ identities - If a person reports a suspected reportable assault to the approved provider, the provider is responsible for taking reasonable measures to ensure that the fact that the person was the maker of the report is not disclosed, except to one or more of the following:

 

-            a police officer with responsibility relating to an area including the place where the assault is suspected to have occurred;

 

-            the Secretary;

 

-            a person, authority or court to which the approved provider is required by a law of the Commonwealth or a State or Territory to disclose the fact; or

 

-            the approved provider’s key personnel.

 

If a person reports a suspected reportable assault to someone (the report recipient) who is one of the approved provider’s key personnel (or staff member authorised by the provider to receive reports of suspected reportable assaults), the provider is responsible for taking reasonable measures to ensure that the report recipient does not disclose the fact that the person was the maker of the report, except to the people specified above.

 

Item 2

This item inserts a new section after section 96-7 (new section 96-8).



Section 96-8  Protection for reporting reportable assaults

This section sets out:

 

·          the disclosures that qualify for protection (subsection 96-8(1));

 

·          the immunities for disclosure (subsections 96-8(2) - (5)); and

 

·          the prohibitions on victimisation for disclosure (subsections 96-8(6) and (7)).

 

The section has been based on the protected disclosure provisions contained within the Corporations Act 2001 and the Workplace Relations Act 1996.

 

In summary, subsection 96-8(1) provides that a disclosure of information by a person (the discloser) qualifies for protection if:

 

·          the discloser is an approved provider of residential care or a staff member of the approved provider.  “Staff member” is defined in section 63-1AA and includes any person who is employed, hired, retained or contracted by an approved provider (whether directly or through an employment or recruitment agency) to provide care or other services; and

 

·          the disclosure is made to:

 

-            a police officer;  

 

-            the Secretary to the Department of Health and Ageing; or

 

-            the approved provider, or one of the approved provider’s key personnel, or another person authorised by the approved provider to receive reports of alleged or suspected reportable assaults; and

 

·          the discloser informs the person to whom the disclosure is made of the discloser’s name before making the disclosure; and

 

·          the discloser has reasonable grounds to suspect that the information indicates that a reportable assault has occurred; and

 

·          the discloser makes the disclosure in good faith.

 

If a person makes a disclosure of a reportable assault in the way specified above, the discloser is:

 

·          protected from any civil or criminal liability for making the disclosure.   It is important to note that the effect of the subsection is not to provide that the person is exempt from any civil or criminal liability for conduct of the person that is revealed by the disclosure.  For example, if a person themselves assaulted a care recipient and told the Secretary to the Department of Health and Ageing that they did so, this would not protect the person from prosecution for the assault.  However, the provision does protect people from civil or criminal liability if such liability was because they made the disclosure (as opposed to because of the conduct that was the subject of the disclosure).  Subsections (3) and (4) clarify that:



-            without limiting the provision, the person has qualified privilege in proceedings for defamation relating to the disclosure and is not liable to an action for defamation at the suit of another person relating to the disclosure; and

 

-            this protection does not affect any other right, privilege or immunity the person has as a defendant in proceedings, or an action, for defamation.

 

·          protected from someone enforcing a contractual or other remedy against the person on the basis of the disclosure.   Without limiting the operation of this protection, the provision makes it clear that a contract to which the person is a party may not be terminated on the basis that the disclosure constitutes a breach of the contract.     For example, if a staff member is a party to a contact of employment that specifies that the staff member must not discuss issues that arise in a home with anyone outside the home, a disclosure by the staff member that qualifies for protection under this section would not give the employer the right to terminate the contract.  However, a disclosure to a person that is not in the list of people to whom a qualified disclosure may be made would potentially expose the staff member to termination of their employment contract.

 

·          protected from victimisation .  A person must not:

 

-            cause detriment (by act or omission) to another person because the other person makes (or may make) a disclosure that qualifies for protection.  If the other person is a staff member of an approved provider, the provider has a responsibility to ensure, as far as reasonably practicable, compliance with this requirement. Sanctions may be imposed on the provider under Part 4.4 if the provider does not comply with this responsibility; and

 

-            threaten another person (whether expressly, impliedly, conditionally or unconditionally) because the other person makes a protected disclosure (or may make such a disclosure).

 

Without limiting the protections described in the section, if a court is satisfied that an employee has made a protected disclosure and the employer (be it the approved provider or a recruitment agency who employs the person on behalf of the approved provider) has terminated the discloser’s contract of employment on the basis of the disclosure, the court may:

 

·          order that the employee be reinstated in that position or a position at a comparable level; or

 

·          order the employer to pay the employee an amount instead of reinstating the employee, if the court considers it appropriate to make the order.

 

Item 3

This item amends clause 1 of Schedule 1 (which is the Dictionary to the Aged Care Act 1997 ) by inserting a definition of reportable assault .  The definition in the dictionary provides that reportable assault has the meaning given by section 63-1AA.

 

reportable assault means unlawful sexual contact, unreasonable use of force, or assault specified in the Accountability Principles and constituting an offence against a law of the Commonwealth or a State or Territory, that is inflicted on a person when:

                     (a)  the person is receiving residential care in respect of which the provider is approved; and

                     (b)  either:

                              (i)  subsidy is payable under Chapter 3 for provision of the care to the person; or

                             (ii)  the person is approved under Part 2.3 as the recipient of that type of residential care.

 

Item 4 Application

This item provides that the amendments made by the Schedule apply in relation to reportable assaults first alleged or suspected on or after the commencement of this Schedule to have occurred before, on or after that commencement.

 

For example, there could be an allegation made on 5 April 2007 in relation to a reportable assault that is alleged to have occurred in December 2006.  In this case, the approved provider must report the incident within 24 hours of the allegation being made, regardless of when the assault occurred.  The approved provider would also have a responsibility to report the matter if the approved provider starts to suspect on 5 April 2007 that a reportable assault has occurred, but is unsure when the actual assault occurred.  The approved provider must report the assault within 24 hours of starting to suspect that a reportable assault occurred.