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Australian Aged Care Quality Agency Bill 2013

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2010 - 2011 - 2012 - 2013

 

 

 

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES/SENATE

 

 

 

 

 

 

 

 

AUSTRALIAN AGED CARE QUALITY AGENCY BILL 2013

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Mental Health and Ageing, the Hon Mark Butler MP)



 

 



Australian Aged Care Quality Agency Bill 2013

 

OUTLINE

 

The purpose of the Australian Aged Care Quality Agency Bill 2013 (the Bill) is to establish a new Australian Aged Care Quality Agency (the Quality Agency), under the Financial Management and Accountability Act 1997 in line with the recommendations of the Uhrig Review. This body will replace the existing Aged Care Standards and Accreditation Agency from 1 January 2014.

 

The new body will be the sole agency that providers of aged care, approved under the under the Aged Care Act 1997, will deal with in relation to the quality assurance of the aged care services that they deliver, whether those services are delivered through a residential aged care service or in the person’s own home.

 

The Quality Agency will commence functions relating to residential aged care services from 1 January 2014, and will commence functions relating to home care services from 1 July 2014.

 

The Bill:

 

·          establishes the Quality Agency and proposes that it will become a prescribed agency under the Financial Management and Accountability Act 1997 ;

 

·          describes the functions of the CEO of the Quality Agency and its advisory body (the Aged Care Quality Advisory Council);

 

·          describes the appointment processes for the CEO and the Council members;  and

 

·          describes important operational matters relating to the Quality Agency including reporting requirements.

 

Financial Impact Statement

 

The Bill gives effects to parts of the Living Longer Living Better package of reforms under which the Government will provide $3.7 billion over 5 years from 2012-13.

 

The Australian Aged Care Quality Agency will be partially budget funded and partially funded through the Quality Agency charging fees for services. This is consistent with the current funding arrangements for the Aged Care Standards and Accreditation Agency. 

 



Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Australian Aged Care Quality Agency Bill 2013

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

The Australian Aged Care Quality Agency Bill 2013 establishes a new Australian Aged Care Quality Agency (the Quality Agency) which will carry out functions including:

·            accrediting residential care services;

 

·            conducting quality reviews of home care services;

 

·            promoting high quality care, innovation in quality management and continuous improvement amongst approved providers of aged care; and

 

·            providing information, education and training to approved providers of aged care.

 

Human Rights Implications

 

This Bill engages the human right to the enjoyment of the highest attainable standard of physical and mental health as set out in Article 12 of the International Covenant on Economic, Social and Cultural Rights. The Quality Agency will promote a high quality of care for the recipients of aged care services and appropriate outcomes for recipients of the care.

 

This Bill also engages the human right to protection against arbitrary interference with privacy as set out in Article 17 of the International Covenant on Civil and Political Rights. Part 7 of the Bill contains protections for personal information about individuals that is collected by staff of the Quality Agency in the performance of duties or the exercise of powers or functions under the Australian Aged Care Quality Agency Act 2013 (once enacted). These provisions include a penalty of imprisonment for two years for the offence of making a record of, disclosing or otherwise using protected information except for permitted uses. The CEO of the Quality Agency is permitted to disclose personal information in a limited range of circumstances in which it may be necessary to do so, for example to prevent or lessen a serious risk to the safety, health or well-being of a care recipient.  

 

Conclusion

 

This Bill is compatible with human rights because it promotes the human right to the enjoyment of the highest attainable standard of physical and mental health and, to the extent that it limits the human right to protection against arbitrary interference with privacy, those limitations are reasonable, necessary and proportionate. 

 

The Hon Mark Butler MP, Minister for Mental Health and Ageing



Australian Aged Care Quality Agency Bill 2013

 

NOTES ON CLAUSES

 

Part 1 - Preliminary

 

Clause 1 - Short title

This clause provides that the Bill, once enacted, may be referred to as the Australian Aged Care Quality Agency Act 2013 .

 

Clause 2 - Commencement

This clause provides that the Act commences on 1 January 2014.

 

Clause 3 - Definitions

This clause sets out definitions of terms that are relied on throughout the Bill. Some important definitions that warrant detailed explanation include the following:

 

·          Accreditation Standards - the Accreditation Standards are the standards against which the Quality Agency will measure the performance of providers of residential aged care. These standards will be detailed in the Quality of Care Principles made under the Aged Care Act 1997, just as they currently are.  It is not intended these standards will change as the result of the establishment of the new Quality Agency; and 

 

·          Home Care Standards - the Home Care Standards are the standards against which the Quality Agency will measure the performance of providers of home care services. These standards are the Community Care Common Standards set out in Schedule 5 to the Quality of Care Principles made under section 96-1 of the Aged Care Act 1997 .  It is intended that they will be renamed the Home Care Standards with effect from 1 July 2013.  Prior to 1 July 2014, the assessment of providers against these standards is undertaken by a delegate of the Secretary of the Department of Health and Ageing. From 1 July 2014, this function will be performed by the new Quality Agency. Providers of home care will, however, continue to be assessed against the same standards that existed prior to the transfer of responsibility for assessment to the new Quality Agency.

 

Clause 4 - Vacancy in the office of an Advisory Council member

This clause provides that, for the purposes of determining whether there is a vacancy on the Advisory Council (for either this Bill (once enacted) or the Acts Interpretation Act 1901 ), there are taken to be up to 10 Advisory Council members in addition to the Chair of the Advisory Council. The establishment and membership of the Advisory Council is detailed in Part 4 of the Bill.

 

Clause 5 - Crown to be bound

This clause provides that the Bill (once enacted) binds the Crown in each of its capacities.  This means that the Act is intended to apply to (and be observed by) the Commonwealth, each of the States, the Australian Capital Territory and the Northern Territory.

 

Clause 6 - Extension to external Territories

This clause provides that the Bill (once enacted) will not have application in any external Territory other than the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands. This is consistent with the application of the Aged Care Act 1997.

  

Part 2 - Australian Aged Care Quality Agency

 

Clause 7 - Establishment

This clause establishes the Quality Agency. It is intended that the Quality Agency will be prescribe d under the Financial Management and Accountability Act 1997 so that it will be an agency to which the provisions of the Financial Management and Accountability Act 1997 will apply.

 

Clause 8 - Constitution

This clause provides that the Quality Agency will comprise the CEO and his or her staff. The Australian Aged Care Quality Advisory Council (the Council) will not form part of the Quality Agency but instead will be established to provide advice to the CEO of the Quality Agency.

 

The Quality Agency will not have a legal identity separate from the Commonwealth.

 

Clause 9 - Function

The functions of the Quality Agency are defined in terms of the functions of the CEO. The CEO’s functions are set out in item 12.

 

Item 10 - Quality Agency to have the privileges and immunities of the Crown

This clause provides that the Quality Agency has the privileges and immunities of the Crown. This means that the Quality Agency falls within the ‘shield’ of the Crown and is entitled to the privileges and immunities of the Crown in the right of the Commonwealth.

 

Part 3 - Chief Executive Officer, staff and consultants

 

Division 1 - Functions and powers of the CEO

 

Clause 11 - Chief Executive Officer

This clause provides that there is to be a CEO of the Quality Agency.  The CEO will lead the work of the Quality Agency and will report directly to the relevant Commonwealth Minister.

 

Clause 12 - Functions of the CEO

The CEO will be responsible for the leadership and management of the Quality Agency and for implementing the Quality Agency’s overall strategic direction.

 

Consistent with this broad objective, clause 12 describes the specific functions of the CEO. The CEO’s functions are:

 

·            to accredit residential care services in accordance with the Quality Agency Principles (that will be made under this Bill, once enacted) and the Accreditation Standards that are made under the Aged Care Act 1997 ;

 

·            The Accreditation Standards describe four standards that must be met by all providers of residential aged care. Each standard consists of a principle and a number of expected outcomes. This function is currently performed by the Aged Care Standards and Accreditation Agency Limited;

 

·          from 1 July 2014, to conduct the quality review of home care services in accordance with the Quality Agency Principles that will be made under this Bill (once enacted) and the Home Care Standards made under the Aged Care Act 1997. The Home Care Standards will be the Community Care Common Standards currently set out in Schedule 5 to the Quality of Care Principles, which will be renamed the Home Care Standards from 1 July 2013. This quality review is a function currently undertaken by the Department of Health and Ageing;

 

·          to register quality assessors of residential and home care services in accordance with the Quality Agency Principles. Quality assessors are those individuals who will assess approved providers against the Accreditation Standards or Home Care Standards;

 

·          to advise the Secretary about aged care services that do not meet the Accreditation Standards or the Home Care Standards. This assists the Secretary to determine whether approved providers are meeting their responsibilities under the Aged Care Act 1997 ;

 

·          to promote high quality care, innovation in quality management practices and continuous improvement amongst approved providers of aged care;

 

·          to provide information, education and training to approved providers of aged care in accordance with the Quality Agency Principles;

 

·          such other functions that are conferred on him or her by this Act (once enacted) or any other law, such as the Public Service Act 1999 or the Financial Management and Accountability Act 1997 ;

 

·          additional functions conferred by the Minister in writing. This ensures that the functions of the CEO can be updated over time so that they remain appropriate and in line with the requirement of the position; and

 

·          anything incidental to, or conducive to, the performance of any of the prescribed functions. This could include, for example, the publication of policies and protocols. This is an activity that is incidental to the general functions of the CEO. 

 

Clause 13 - Powers of the CEO

This clause provides that the CEO has the power to do all things necessary or convenient to be done for or in connection with the performance of his or her functions. A note at the end of the clause reminds readers that the expenditure of any public money must comply with the requirements of the Financial Management and Accountability Act 1997.

 

Clause 14 - Minister may give directions to the CEO

Consistent with like provisions in Commonwealth legislation establishing Agencies that are prescribed under the Financial Management and Accountability Act 1997 , this clause provides for the Minister to give directions to the CEO about the performance of the CEO’s functions.

 

Directions from the Minister must be of a general nature only and cannot, for example, relate to a decision of the CEO in respect of the accreditation of an individual approved provider.

 

All directions are legislative instruments (in accordance with the Legislative Instruments Act 2003 ) which means that they are subject to Parliamentary and public scrutiny. Directions are not, however, subject to disallowance by the Parliament. This is because of the operation of section 44 of the Legislative Instruments Act 2003 which expressly provides that Ministerial directions to any person or body are not subject to disallowance. Section 54 of that Act also provides that such directions are not subject to sunsetting .

 

Clause 15 - Fees

This clause provides that the CEO may charge fees for services provided by the Quality Agency. These fees will contribute to the operating budget of the Quality Agency. Fees may, for example, be charged in relation to the accreditation of residential care services and the registering of quality assessors. This is consistent with the current practice of the Aged Care Standards and Accreditation Agency.

 

Division 2 - Appointment of the CEO

 

Clause 16 - Appointment of the CEO

This clause provides that the CEO will be appointed by the Minister by written instrument and he or she will hold office on a full-time basis. Subclause (2) provides that the appointment will not be invalid merely because of a defect or irregularity in connection with the appointment (for example, if there has been an error in the paperwork appointing the CEO).

 

Clause 17 - Term of appointment

The instrument of appointment will specify the period for which the CEO holds office. The period must not exceed five years. This term is in keeping with Australian Government policy on the selection of statutory office holders working in, or in conjunction with, Australian Public Service agencies.

 

The CEO may, however, be re-appointed for further terms. This is permitted under subsection 33AA of the Acts Interpretation Act 1901 that provides that in any Act, a reference to appointment includes re-appointment.

 

Clause 18 - Acting CEO

This clause specifies that the Minister may appoint a person to act as the CEO during a vacancy in the office of CEO or when the CEO is absent from duty, overseas or unable to perform the duties of the office (for whatever reason).

  

Division 3 - Terms and conditions of the CEO’s appointment

 

Clause 19 - Remuneration and allowances

Subclause 19(1) provides that the CEO’s remuneration is determined by the Remuneration Tribunal. The Remuneration Tribunal is an independent statutory body that handles the remuneration of appointees to key Commonwealth offices. If no such determination is in operation, the CEO’s remuneration is prescribed by the regulations made in accordance with this Act (refer clause 55).

 

Subclause 19(2) provides that the CEO is also to be paid the allowances that are prescribed by the regulations, in addition to any allowances set by the Remuneration Tribunal.

 

Subclause 19(3) clarifies that the clause has effect subject to the Remuneration Tribunal Act 1973 (meaning that it should be read in the context of that Act and the means by which the Remuneration Tribunal sets remuneration). This is a standard provision included in similar clauses in other legislation.

 

Clause 20 - Leave of absence

This clause provides that the Remuneration Tribunal determines the CEO’s recreation leave entitlements and that the Minister can grant the CEO other types of leave on the terms and conditions decided by the Minister. 

 

Clause 21 - Outside employment

This clause prevents the CEO from engaging in paid employment outside the duties of his or her office without the Minister’s approval. Reasons for such a provision are to minimise the risk of a conflict of interest and to ensure that the CEO focuses on his or her job in leading the Quality Agency, noting that the position is a full-time one.

 

Clause 22 - Disclosure of interests

This clause requires the CEO to declare in writing to the Minister all actual or potential conflicts of interest that could interfere with the proper performance of the CEO’s functions. This would include, amongst other things, a financial interest or a family member’s financial interest in an aged care service. If the CEO fails, without reasonable excuse, to comply with this requirement, the CEO may have his or her appointment terminated by the Minister (refer to clause 25).

 

Clause 23 - Other terms and conditions

To the extent that terms and conditions for the CEO are not covered by the Act, this clause enables the Minister to decide any other terms and conditions.

 

Clause 24 - Resignation

This clause provides the details about how the CEO may resign his or her appointment and when the resignation takes effect. The CEO may resign by giving written notice to the Minister. The resignation takes effect on the day that the notice is received by the Minister or on a later date if the CEO has specified a later date in the notice of resignation.

 

Clause 25 - Termination of appointment

This clause provides the details about how, and for what reasons, the Minister may terminate the CEO’s appointment. This may include, for example, physical or mental incapacity, absence without leave for extended periods, failure to comply with requirements relating to disclosure of interest and engaging in other employment without authorisation from the Minister. The clause also describes those circumstances in which the Minister must terminate the appointment of the CEO, for example, if the CEO becomes bankrupt or insolvent.

 

Division 4 - Staff and consultants

 

Clause 26 - Staff

This clause provides that the staff of the Quality Agency are to be engaged under the Public Service Act 1999. For the purposes of that Act, the CEO and the staff of the Quality Agency together constitute a statutory agency and the CEO is the head of that statutory agency. 

 

Clause 27 - Persons assisting the CEO

This clause provides that the CEO may also be assisted by certain officers and employees of any of the following bodies:

 

·          agencies (within the meaning of the Public Service Act 1999 );

 

·          authorities of the Commonwealth;

 

·          a state or territory; or

 

·          authorities of a state or territory.

 

This allows, for example, state or territory government employees to be seconded to work for the CEO of the Agency. In such circumstances, the Commonwealth may reimburse a state or territory with respect to the services of the persons. The persons assisting the CEO would be subject to the directions of the CEO.

 

Clause 28 - Consultants

This clause, which is included for the avoidance of doubt, provides that the CEO may engage consultants to perform services for the CEO. Such consultants should have suitable qualifications and experience and are to be engaged on the terms and conditions that the CEO determines in writing. The CEO may wish to engage consultants to, for example, work on specific projects and matters which would require particular knowledge and experience.

     

Part 4 - Aged Care Quality Advisory Council

 

Clause 29 - Establishment of the Aged Care Quality Advisory Council

This clause establishes the Aged Care Quality Advisory Council (Advisory Council).  The Advisory Council’s role will be to advise the CEO (as described in clause 30).

 

Clause 30 - Functions of the Advisory Council

The role of the Advisory Council is to provide advice to the CEO on its own initiative, or at the request of the CEO, about those matters that relate to the functions of the CEO.

 

The Minister may also request advice from the Advisory Council about the operations of the Quality Agency or matters relating to the CEO’s functions.

 

Clause 31 - Membership of the Advisory Council

This clause provides that the Advisory Council will consist of a Chair and at least six, and no more than 10, other members. 

 

While being a manageable size, the number of places on the Advisory Council will ensure appropriate expert and stakeholder representation, including from specialist fields identified in clause 32.

 

Clause 32 - Appointment of Advisory Council members etc.

This clause provides for how Advisory Council members are to be appointed, for how long and the skills and experience they need to possess.

 

Members will be appointed by the Minister by written instrument (subclause 32(1)).  Advisory Council members hold office on a part-time basis (subclause 32(3)) for up to three years, as specified in the instrument of appointment (subclause 32(2)). 

 

To be eligible to be considered by the Minister for appointment to the Advisory Council, an individual must have substantial experience or knowledge in at least one of a number of specific fields that may assist in the effective performance of the CEO’s functions. For example, members of the Council must have skills or experience in:

 

·          evaluation of quality management systems;

 

·          provision of aged care, including provision of aged care to people with special needs;

 

·          aged care consumer issues;

 

·          geriatrics, gerontology, aged care nursing or psychiatry of the older person;

 

·          adult education;

 

·          public administration, management or law, or

 

·          aged care or health consumer issues.

 

To allow the Minister to appoint members based on the expertise and skills required to support the CEO as the Quality Agency develops over time, members may also be drawn from any other appropriate field of expertise.

 

As with the appointment of the CEO, Advisory Council members may be re-appointed for further terms (by virtue of the operation of subsection 33AA of the Acts Interpretation Act 1901 ).

 

Clause 33 - Procedures of the Advisory Council

This clause gives the Minister the ability to issue directions to the Advisory Council about how the Advisory Council will operate, function and perform.

 

Clause 34 - Acting appointments—Chair

This clause provides that the Minister may appoint a person to act as the Chair of the Advisory Council during any vacancy in the office or during any period when the Chair of the Advisory Council is absent from duty, or from Australia, or is, for any reason, unable to perform the duties of the office.

 

A person is not eligible for appointment to act as the Chair of the Advisory Council unless the person is eligible for appointment as an Advisory Council member.  In other words, the person must have substantial experience or knowledge in at least one of the specified fields of expertise for Advisory Council members.

 

A note to the clause draws the reader’s attention to sections 33AB and 33A of the Acts Interpretation Act 1901 which relate to people acting in various offices. 

 

Clause 35 - Acting appointments—members other than the Chair

This clause provides that the Minister may appoint someone to act as an Advisory Council member. Acting appointments to the Chair’s position are dealt with in clause 34.

 

As with appointments to act as the Chair, person is not eligible to act as an Advisory Council member unless the person is eligible for appointment as an Advisory Council member.  

 

Sections 33AB and 33A of the Acts Interpretation Act 1901 provide further information about acting appointments. 

 

Clause 36 - Remuneration and allowances

This clause provides that an Advisory Council member will be paid the remuneration determined by the Remuneration Tribunal. The Remuneration Tribunal is an independent statutory body that handles the remuneration of appointees to key Commonwealth offices. If no determination is in operation, the member is to be paid the remuneration that is prescribed by regulations made in accordance with clause

55 of this Bill (once enacted).

 

Subclause 36(2) provides that an Advisory Council member is not entitled to be paid if he or she is a full-time employee of, or holds a full-time office or appointment in, a state, a state government corporation established under state law (other than a tertiary education institution) or a state government company. This means that government employees or office holders will not be paid for their role on the Advisory Council, as it is considered part of their usual duties for which they are already remunerated.

 

The same rule applies to an Advisory Council member who has a similar relationship with the Commonwealth or a Territory (as per subsection 7(11) of the Remuneration Tribunal Act 1973 ).

 



Advisory Council members will also be paid the allowances that are prescribed by regulations (if any) in addition to those allowances set by the Remuneration Tribunal.

 

This clause (once enacted) has effect subject to the Remuneration Tribunal Act 1973 .  The exception is described in subclause 36(2) which specifies those people not entitled to remuneration. This is a standard provision included in similar clauses in other like legislation.

 

Clause 37 - Leave of absence

This clause sets out the arrangements for granting leave to Advisory Council members and the Chair. It provides that the Minister may grant leave of absence to the Advisory Council Chair on terms and conditions that the Minister determines. The Advisory Council Chair may, in turn, grant leave of absence to any other Advisory Council member on terms and conditions that the Chair determines. 

 

Clause 38 - Resignation

This clause enables an Advisory Council member, including the Chair, to resign his or her appointment by giving the Minister a written resignation. The resignation takes effect on the day it is received by the Minister, or on a later day if specified in the resignation. This process for resignation is the same as applies to the CEO (refer to clause 24).

 

Clause 39 - Disclosure of interests to the Minister

Clause 22 requires the CEO to disclose to the Minister any financial or other interests that may lead to an actual or perceived conflict of interest. Similarly, this clause requires Advisory Council members (including the Chair) to give written notice to the Minister of all interests, financial or otherwise, that the member has or acquires and that conflict (or could conflict) with the proper performance of the member’s functions. This is an important safeguard for ensuring that any advice provided by the Advisory Council to the CEO or the Minister is not tainted by any conflict of interest or any perceived conflict of interest. 

 

Clause 40 - Disclosure of interests to the Advisory Council

This clause recognises that an Advisory Council member (including the Chair) may not have an interest that conflicts with the performance of his or her duties on an ongoing basis, but there may be a conflict that arises in respect of a particular matter being considered (or about to be considered) by the Advisory Council.

 

This clause therefore provides that an Advisory Council member who has an interest, pecuniary or otherwise, in a matter being considered or about to be considered by the Advisory Council must disclose the nature of the interest to the meeting. The disclosure must be made as soon as possible after the relevant facts have come to the member’s knowledge and must also be recorded in the minutes of the meeting.

 

Ordinarily, the Advisory Council member must not be present during any deliberation by the Advisory Council on the matter nor take part in any decision relating to the matter. 

 

However, the Advisory Council may make an exception to this.  If they do so, they must make an explicit decision to this effect.  The relevant Advisory Council member must not be present during any deliberation of the Advisory Council in relation to such a decision, nor take part in making the decision.  The decision must be recorded in the minutes of the meeting.

 

Clause 41 - Termination of appointment

This clause describes those circumstances in which the Minister may terminate the appointment of an Advisory Council member and also those circumstances in which the Minister must terminate the appointment of an Advisory Council member.

 

The Minister may terminate the appointment of an Advisory Council member for misbehavior, because of physical or mental incapacity, because of failure to comply with conflict of interest and disclosure provisions or because the Advisory Council member is absent, except on leave of absence, from three consecutive meetings of the Advisory Council.

 

The Minister must terminate the appointment of an Advisory Council member if the member becomes bankrupt or insolvent.

 

Clause 42 - Other terms and conditions

This clause enables the Minister to decide any terms and conditions of the Advisory Council members that are not otherwise covered by the Act. The Minister has a similar power in relation to the CEO (refer to clause 23).

 

Part 5 - Strategic and annual annual operational plans

 

Clause 43 - Development of strategic plan

This clause provides that the CEO must give the Minister a three-year strategic plan that has been developed in consultation with the Minister and the Advisory Council. The purpose of the strategic plan is to define the CEO’s principal objectives for the three-year period and to give a broad outline of the strategies to be pursued by the CEO in relation to those objectives.

 

The first three-year strategic plan will commence on 1 January 2014 (when the Quality Agency commences operation) and end on 30 June 2016. All subsequent strategic plans will be for periods of three years beginning at the commencement of the relevant financial year.

 

Strategic plans are not legislative instruments for the purposes of the Legislative Instruments Act 2003 . This is because strategic plans do not meet the definition of a legislative instrument in section 5 of that Act.

 

Clause 44 - Development of annual operational plan

This clause provides that the CEO must give the Minister an annual operational plan. The operational plan must be developed in consultation with the Minister and the Advisory Council and must also:

 

·          set out the CEO’s priorities for work to be undertaken during the year;

 

·          set out particulars of the actions that the CEO intends to take to advance the objectives set out in the strategic plan;

 

·          set out how the CEO will apply the resources of the Quality Agency to achieve the objectives in the strategic plan applicable to the period;

 

·          include an assessment of risks faced by the Quality Agency and a risk management plan in relation to those risks; and

 

·          include appropriate performance indicators against which the Quality Agency’s performance can be assessed.

 

As the Quality Agency will be established on 1 January 2014, the first plan will be for an 18 month period from 1 January 2014 to 30 June 2015.  All subsequent operational plans will relate to a standard financial year.

 

Annual operational plans are not legislative instruments for the purposes of the Legislative Instruments Act 2003 . This is because operational plans do not meet the definition of a legislative instrument in section 5 of that Act.

 

Part 6 - Reporting requirements

 

Clause 45 - Minister may require the CEO to prepare reports or give information

Subclauses 45(1) and 45(2) provide that the Minister may, in writing, require the CEO to prepare a report about the performance of the CEO’s functions (or prepare a document setting out specified information) and give a copy of the report or document to the Minister within a specified period. The Minister may choose to publish the report or document (subclause 45(4)).

 

Subclause 45(3) provides that if the Minister makes such a request the CEO must comply.

 

Clause 46 - Keeping the Minister informed etc.

This clause is intended to ensure that the CEO keeps the Minister informed about the operation of the Quality Agency. While the annual reports (refer clause 47) will provide advice on the achievements and challenges the Quality Agency has faced during the year, this clause is intended to ensure that the Minister is kept abreast of relevant and/or significant matters on an ongoing basis.

 

Clause 47 - Annual report

This clause provides that the CEO 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 operations of the CEO, and the Quality Agency during that year. Recognising that the legislation commences on 1 January 2014, the CEO must provide the first report for the six month period beginning on 1 January 2014.

 

The CEO must include in the annual report:

 

·          an assessment of the extent to which the Quality Agency’s operations during the year have contributed to the objectives set out in the strategic plan and the priorities set out in the annual operational plan;

 

·          particulars of variations (if any) of the strategic plan and the annual operational plan taking effect during the year;

 

·          an evaluation of the Quality Agency’s overall performance during the year against the performance indicators set out in the annual operational plan; and

 

·          the financial statements required by section 49 of the Financial Management and Accountability Act 1997 and an audit report on those statements under section 57 of the Financial Management and Accountability Act 1997.

 

A note at the end of subclause 47(1) draws the reader’s attention to section 34C of the Acts Interpretation Act 1901 , which contains extra rules about periodic reports. In summary, the effect of section 34C of the Acts Interpretation Act 1901 is that: 

 

·          the annual report of the CEO must be provided to the Minister as soon as practicable after the end of the financial year and, in any event, within six months after the end of that particular period;

 

·          the Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days (of that House) after the day on which the Minister receives the report;

 

·          if the CEO believes that it will not be reasonably possible to comply with the requirement, the CEO may within the specified period, apply to the Minister for an extension of the period. The CEO will be required to give the Minister a statement in writing explaining why it will not be reasonably possible to lodge the report on time. The Minister may grant such extension as he or she considers reasonable in the circumstances. Where the Minister grants an extension, the Minister must table in each House of the Parliament, within three sitting days after the day on which he or she grants the extension, a copy of the CEO’s statement explaining why the report will be late and also a statement specifying the extension granted and the Minister’s reasons for granting the extension; and

 

·          if the CEO fails to provide the report within the specified time (or if an extension has been granted, within that time) the CEO must, not later than 14 days after the end of the specified period or extension, give the Minister a statement in writing explaining why the report was not provided. The Minister must table the statement within three sitting days of receiving it.

 

Part 7 - Protected information

 

Clause 48 - Use of protected information

This clause sets out when it is an offence to use protected information. Protected information is information that was acquired under, or for the purposes of, this Act (when enacted) and is either personal information or relates to the affairs of an approved provider. This definition of protected information in included in clause 3.

 

The offence carries a penalty of two years imprisonment.



A person is prohibited from recording, disclosing or using protected information acquired in the course of performing duties or exercising powers or functions under this Act (once enacted) or the Aged Care Act 1997 except in the following circumstances:

 

·          where the protected information was recorded, disclosed or used while a person was performing a function, duty or power under, or in relation to this Act or the Aged Care Act 1997 ;

 

·          where the information is disclosed to the person to whom it relates or where that person has authorised the recording, disclosure or use of the protected information;

 

·          where the recording, disclosure or use was carried out by an approved provider; and

 

·          where it is otherwise authorised under this or any other Act.

 

Clause 49 sets out when disclosure of protected information for other purposes is acceptable.

 

Clause 49 - Disclosure of protected information for other purposes.

This clause sets out a number of situations where a disclosure of protected information by the CEO of the Quality Agency is authorised. The authorised situations include:

 

·          if the CEO certifies, in writing, that it is necessary in the public interest to disclose to certain information to certain people for particular purposes;

 

·          disclosure to a person who is, in the opinion of the CEO, expressly or impliedly authorised by the person to whom the information relates to obtain it (for example, disclosure to a Member of Parliament who has made representations to the Minister at the request of the person whose information is being disclosed);

 

·          disclosure to the Chief Executive Medicare for the purposes of payment of subsidies under the Aged Care Act 1997 ;

 

·          if the CEO believes, on reasonable grounds, that disclosure to certain people is necessary to prevent or lessen a serious risk to the safety, health or well-being of a care recipient;

 

·          if the CEO believes, on reasonable grounds, that a person’s conduct breaches the standards of professional conduct for his or her profession and should be reported to the relevant professional standards body;

 

·          if a person has temporarily taken over the provision of care through a particular service provider, disclosure to the person for the purposes of enabling the person properly to provide that care;



 

·          if the CEO believes, on reasonable grounds, that disclosure to a particular agency is necessary for enforcement of the criminal law or a law imposing a pecuniary penalty or protection of the public revenue;

 

·          to the Aged Care Commissioner or the Aged Care Pricing Commissioner, if the CEO believes, on reasonable grounds, that disclosure is necessary to assist either of the Commissioners to perform their functions under the Aged Care Act 1997 ; and

 

·          to a person of a kind specified in the Quality Agency Principles, for purposes also specified in those Principles.

 

Clause 50 - Limits on use of protected information disclosed by the CEO

This clause is intended to prohibit a person who receives information under clause 49 from recording, disclosing or using information for any purpose other than that for which the information was disclosed.  It is an offence to do otherwise with a penalty of two years imprisonment.

 

Clause 51 - Disclosure to court

This clause provides that there are limited circumstances in which a court, or other such body, may require someone to disclose protect information. A person can be required to disclose protected information only if:

 

·          the disclosure is required for the purposes of this Act (once enacted) or the Aged Care Act 1997 ;

 

·          the information was originally disclosed under clause 49 and the disclosure is required for the purposes for which it was disclosed under that item; or

 

·          the person to whom the information relates has consented in writing to the disclosure.

 

Clause 52 - Information about an aged care service

This clause enables the CEO to make publicly available certain information about individual aged care services. This ensures that information about aged care services is available to residents and prospective residents to enable them to make informed decisions about their care. The information disclosed cannot be personal information.

 

This provision is consistent with the current practice of Aged Care Standards and Accreditation Agency Limited, which may disclose information about an aged care service in accordance with section 86-9 of the Aged Care Act 1997 (see sections 2.87 and 2.88 of the Accreditation Grant Principles 2011 made under section 96-1 of that Act). 

 

Part 8 - Miscellaneous

 

Clause 53 Principles

This clause provides the Minister with the power to make Principles under this Act (once enacted) provided that the Principles are not inconsistent with the Aged Care Act 1997 or its Principles . The Principles will be legislative instruments for the purposes of the Legislative Instruments Act 2003.

 

Clause 54 - Delegation by the CEO

This clause allows the CEO to delegate some of the CEO’s functions and powers to staff of the Quality Agency. A delegate must comply with any written directions of the CEO in relation to such a delegation.

 

As the Quality Agency is proposed to be a prescribed agency for the purposes of the Financial Management and Accountability Act 1997 , the CEO and his or her staff will also be expected to comply with the relevant provisions of that Act. That Act also allows the CEO to delegate certain responsibilities under that Act including, for example, financial delegations. 

 

By virtue of subsection 33(3) of the Acts Interpretation Act 1901 , the CEO will also have the power to repeal, rescind, revoke, amend or vary an instrument of delegation.

 

Clause 55 - Regulations

This clause enables the Governor-General to make regulations prescribing matters required or permitted to be prescribed by the Act (once enacted) or necessary or convenient to be prescribed for carrying out or giving effect to the Act.