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Aged Care Amendment (Independent Complaints Arrangements) Bill 2015

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2013-2014-2015

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

 

 

AGED CARE AMENDMENT

(INDEPENDENT COMPLAINTS ARRANGEMENTS) BILL 2015

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by the authority of the

Assistant Minister for Social Services, Senator the Hon Mitch Fifield)



 



AGED CARE AMENDMENT

(INDEPENDENT COMPLAINTS ARRANGEMENTS) BILL 2015

 

 

OUTLINE

 

This Bill makes amendments to the Aged Care Act 1997 (the Aged Care Act) to reflect the implementation of the 2015 Budget measure, Aged Care - Independent Aged Care Complaints Arrangements , under which responsibility for aged care complaints will be transferred from the Secretary of the Department of Social Services (the Secretary) to the Aged Care Commissioner.

 

The Complaints Principles 2014 (the Complaints Principles), which are made under section 96-1 of the Aged Care Act, provide a scheme for the management and resolution of complaints and other concerns about aged care services.  Matters which may be dealt with by the Complaints Principles are set out in the Aged Care Act.

 

Under the Complaints Principles, a person may make a complaint to the Secretary about an issue or issues concerning an approved provider’s responsibilities under the Aged Care Act or any of the Principles made under section 96-1 of the Aged Care Act.  The Complaints Principles give the Secretary powers to manage those complaints.

 

Part 6.6 of the Aged Care Act provides for an Aged Care Commissioner, with functions set out in the Aged Care Act and the Complaints Principles.  Currently, the Aged Care Commissioner has powers to examine certain decisions made under the Complaints Principles.  The Aged Care Commissioner also has powers to examine complaints about the Secretary’s processes for handling matters under the Complaints Principles and certain processes of the Australian Aged Care Quality Agency.

 

This Bill will amend Part 6.6 of the Aged Care Act to enable the Aged Care Commissioner to manage and resolve complaints under the Complaints Principles, in place of the Commissioner’s current capacity as a mechanism of review.  The current review functions undertaken by the Aged Care Commissioner will be removed.  It also changes the title of the Aged Care Commissioner to the Aged Care Complaints Commissioner, to reflect the fact that the Commissioner’s functions relate to aged care complaints.  This Bill will also make consequential amendments to the Australian Aged Care Quality Agency Act 2013 to reflect the change in title.

 

This measure will increase the independence of aged care complaints handling by separating responsibility for the management of aged care complaints from the Department of Social Services’ aged care policy and regulatory functions.

 

It is expected this initiative will be implemented from 1 January 2016.

 

Financial impact statement

 

The measure will have a financial impact of $2.8 million in savings over four years.

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

The statement of compatibility with human rights appears at the end of this explanatory memorandum.

 

 



AGED CARE AMENDMENT

(INDEPENDENT COMPLAINTS ARRANGEMENTS) BILL 2015

 

 

NOTES ON CLAUSES

 

Abbreviations used in this explanatory memorandum

 

  • Aged Care Act means the Aged Care Act 1997

 

  • Complaints Principles means the Complaints Principles 2014 , made under section 96-1 of the Aged Care Act

 

  • Quality Agency Act means the Australian Aged Care Quality Agency Act 2013

 

 

Clause 1 sets out how the new Act is to be cited - that is, as the Aged Care Amendment (Independent Complaints Arrangements) Act 2015.

 

Clause 2 provides for the whole of the new Act to commence on a single day to be fixed by Proclamation, or, if Proclamation does not occur within six months, on the day after the end of the six-month period.

 

Clause 3 provides that legislation specified in a Schedule to the Act is amended or repealed as set out in that Schedule.

 

 



Schedule 1 - Amendments

 

 

Summary

 

This Schedule makes amendments to the Aged Care Act to transfer responsibility for aged care complaints from the Secretary of the Department of Social Services to the Aged Care Commissioner.  The Schedule also changes the title of the Aged Care Commissioner to the Aged Care Complaints Commissioner.

 

Background

 

The Complaints Principles, which are made under section 96-1 of the Aged Care Act, provide a scheme for the management and resolution of complaints and other concerns about aged care services.  Matters which may be dealt with by the Complaints Principles are set out in the Aged Care Act.

 

Under the Complaints Principles, a person may make a complaint to the Secretary about an issue or issues concerning an approved provider’s responsibilities under the Aged Care Act or any of the Principles made under section 96-1 of the Aged Care Act.  The Complaints Principles give the Secretary powers to manage those complaints.

 

Both consumers and providers of aged care seek independence in complaints management.  There is a concern about potential bias where an industry subsidiser is also the regulator, and then also handles complaints about that industry, as currently occurs in the Department of Social Services.  The independence of the complaints scheme was recommended in the 2009 Walton Review of the previous Complaints Investigation Scheme.

 

The amendments made by this Schedule will increase the independence of aged care complaints handling by separating responsibility for the management of aged care complaints from the Department of Social Services’ aged care policy and regulatory functions.

 

Explanation of the changes

 

Part 1 - Amendments

 

Amendments to the Aged Care Act

 

Item 1:  Paragraph 56-4(1)(d)

Section 56-4 of the Aged Care Act outlines the responsibility of approved providers to establish a complaints resolution mechanism for an aged care service.  Currently, paragraph 56-4(1)(d) provides that an approved provider must allow people authorised by the Secretary to investigate and assist in the resolution of complaints to have such access to the service as is specified in subordinate legislation.

 

 



This item amends paragraph 56-4(1)(d) to clarify that an approved provider must allow an authorised complaints officer to have access to an aged care service to be able to investigate and assist in the resolution of complaints.  Authorised complaints officers are appointed by the Aged Care Complaints Commissioner under the new section 94B-1 inserted by item 11 below.  As the Aged Care Complaints Commissioner will have responsibility for aged care complaints, it is appropriate for authorised complaints officers who are appointed by the Aged Care Complaints Commissioner to have the power to access a service under this paragraph.

 

Item 2:  After paragraph 63-1(1)(b)

Subsection 63-1(1) of the Aged Care Act outlines the accountabilities of approved providers for aged care provided through an aged care service.  This item inserts a new paragraph 63-1(1)(ba) specifying that an approved provider must cooperate with any person who is exercising powers under the new Division 94B (see item 11 below) in relation to the service.

 

Items 3 and 4:  Section 84-1

Section 84-1 outlines what matters are covered by Chapter 6 of the Aged Care Act.  Item 3 amends this section to provide that Chapter 6 deals with the management and resolution of complaints and other concerns about the provision of aged care services, and powers of authorised complaints officers.  This change is consequential on the addition of new Division 94B, which sets out the powers of authorised complaints officers.

 

Item 4 amends this section to refer to the new functions of the Aged Care Complaints Commissioner, which will include functions relating to complaints and other concerns conferred on the Commissioner by the Complaints Principles.

 

Item 5:  Section 86-3

Section 86-3 of the Aged Care Act sets out situations in which a disclosure of protected information is authorised.  Currently, section 86-3 only authorises the Secretary to disclose protected information in specified situations.  This item re-numbers the existing section as subsection (1).  This change is required due to the insertion by item 6 below of a new subsection that refers to the Aged Care Complaints Commissioner.

 

Item 6:  At the end of section 86-3

This item amends section 86-3 by adding a new subsection 86-3(2), which sets out the circumstances in which the Aged Care Complaints Commissioner is authorised to disclose protected information.  The paragraphs in this new subsection mirror some of the existing provisions in section 86-3.  The intention of this item is to confer powers on the Aged Care Complaints Commissioner to disclose protected information to certain persons as part of their functions.  The authorised situations are as follows:

 

(a)   to persons and for such purposes as determined by the Aged Care Complaints Commissioner where the Aged Care Complaints Commissioner certifies it is necessary in the public interest; and

(b)   to a person who, in the opinion of the Aged Care Complaints Commissioner, is expressly or impliedly authorised by the person to whom the information relates.  This will allow the Aged Care Complaints Commissioner to give information to people authorised to act on behalf of a care recipient or complainant; and

(c)   in order to prevent or lessen a serious risk to the safety, health or well-being of a care recipient.  The intention of this item is to enable the Aged Care Complaints Commissioner to release information to organisations such as the police, the Quality Agency, the fire brigade, Aged Care Assessment Teams, advocacy services, guardianship bodies and State welfare authorities where urgent action is required; and

(d)   to a body responsible for standards of professional conduct.  The intention of this item is to ensure that, where the Aged Care Complaints Commissioner believes, on reasonable grounds, that a person’s conduct breaches the standards of professional conduct, the appropriate body can be notified in order to protect care recipients’ well-being; and

(e)   to the appropriate agency or agencies for the enforcement of the criminal law or a law imposing pecuniary penalty or for the protection of the public revenue; and

(f)    to a person of a kind and for the purposes specified in the Information Principles.  The Information Principles are made under section 96-1 of the Aged Care Act.

Subsection 86-3(3) is included to assist readers.  It confirms that disclosures of protected information made under section 86-3 are not legislative instruments, because disclosures are not legislative in character.  This section is not intended to be a substantive exemption from the Legislative Instruments Act 2003 ; rather, it is merely declaratory of the law.

 

Item 7:  Section 86-5 (heading)

This item amends the heading to section 86-5 to remove the reference to ‘protected information disclosed by the Secretary’, and replace it with references to ‘information disclosed under section 86-3 or 86-4’.  This change is required due to the insertion by item 6 above of new subsection 86-3(2), which refers to the Aged Care Complaints Commissioner.

 

Item 8:  Part 6.4A (heading)

This item repeals the current heading to Part 6.4A and substitutes a new heading that refers to authorised complaints officers.  This change is consequential to the amendments made in item 11 below creating authorised complaints officers.

 

Item 9:  Before Division 94A

This item inserts a new Division 94AA, which provides an overview of Part 6.4A and sets out a table of Divisions.  Part 6.4A sets out matters that may be dealt with by the Complaints Principles, and sets out the powers of authorised complaints officers.

 

Item 10:  After paragraph 94A-1(2)(f)

This item amends subsection 94A-1(2) to insert a new paragraph (g), which provides that the Complaints Principles may include provisions authorising the provision of information relating to complaints and concerns to the Secretary of the Department or to the CEO of the Quality Agency.  The intention of this item is to facilitate the passage of information between the Aged Care Complaints Commissioner, the Secretary and the Quality Agency.

 

Item 11:  At the end of Part 6.4A

This item adds a new Division 94B, which creates the role of authorised complaints officers.

 

Currently, delegates of the Secretary investigating complaints made under the Complaints Principles exercise some of the powers of authorised officers under Part 6.4 of the Aged Care Act.  Those staff will need to retain certain powers when responsibility for aged care complaints transfers from the Secretary to the Aged Care Complaints Commissioner.

 

This Division creates the role of authorised complaints officers who hold similar powers to some of the monitoring powers held by authorised officers under Part 6.4 of the Aged Care Act.

 

New section 94B-1:  Authorised complaints officers

Subsection (1) gives the Aged Care Complaints Commissioner power to appoint officers of the Department to be authorised complaints officers for the purposes of this Division.  The authorisation of an officer must be in writing.

 

Subsections (2), (3) and (4) provide that the Aged Care Complaints Commissioner must issue an identity card to each authorised complaints officer, which specifies the name and appointment of the person and has a recent photograph of the person attached.

 

Subsection (5) requires authorised complaints officers to return their identity cards to the Aged Care Complaints Commissioner when they cease to be an authorised complaints officer.

 

New section 94B-2:  Meaning of complaints powers

New section 94B-2 details complaints powers that may be exercised by authorised complaints officers under this Division.

 

Subsection (1) sets out the powers that constitute complaints powers.  These are similar to the monitoring powers under Division 90 of the Aged Care Act, but have been structured to limit complaints powers to only those powers currently exercised by authorised officers investigating complaints made under the Complaints Principles.

 

These include powers to:

 

(i)     search premises;

(ii)   take photographs (including a video recording), or make sketches, of the premises or any substance or thing at the premises;

(iii) inspect, examine and take samples of any substance or thing on or in the premises;

(iv) inspect any document or record kept on the premises;

(v)   take extracts from, or make copies of, any document or record on the premises;

(vi) take onto the premises any equipment or material reasonably necessary for the purpose of exercising any power under subsection 94B-2(1).

Subsection (2) specifies that, where an authorised complaints officer believes, on reasonable grounds that there is an item on the premises that may afford evidence of the commission of an offence under the Aged Care Act, the officer may inform the Secretary or an authorised officer and secure the item until an authorised officer is able to obtain a warrant to seize it.

 

The intention of this subsection is to allow authorised complaints officers to inform the Secretary or an authorised officer of possible offences under the Aged Care Act so the Secretary or authorised officer can investigate.

 

Complaints powers also include the powers of authorised complaints officers as set out in subsections (3) and (4) as described below.

 

Subsection (3) provides that an authorised complaints officer has power to operate equipment at the premises to see whether the equipment, or a disk, tape or other storage device associated with the equipment, contains information that is relevant to assessing whether the approved provider:

 

·          has met their responsibilities under Chapter 4 of the Aged Care Act; or

  • has kept records as required under Part 6.3 of the Aged Care Act.

 

Subsection (4) specifies that, where the authorised complaints officer has operated equipment and finds that the equipment, or a disk, tape or other storage device, contains information as described in subsection (3), the complaints powers include:

 

(a)   putting the information into the form of a document and copying it; or

(b)   where the information can be transferred to a disk, tape or other storage device, using other equipment or facilities to copy the information to another storage device and removing it from the premises.  The storage device onto which the information is copied can be either brought to the premises by the authorised complaints officer, or, if it is already at the premises, it can be used with the written consent of the occupier of the premises.

New section 94B-3:  Power to enter premises with occupier’s consent to exercise complaints powers

The intention of this new section is to provide authorised complaints officers with powers similar to some of those exercised by authorised officers under section 91-1 of the Aged Care Act.

 

Subsection (1) specifies that an authorised complaints officer may enter:

 

(i)     an aged care service at any time of the day or night; or

(ii)   any other premises (including residential premises) at any time between 9 am and 5 pm on a business day (that is, a day that is not a Saturday, Sunday or public holiday in the place concerned);

with the occupier’s consent to exercise complaints powers for the purposes set out in subsection (2).

 

Subsection (2) sets out limits on when an authorised complaints officer can enter premises with the occupier’s consent.  The authorised complaints officer must not enter unless the officer does so in relation to a matter that is connected with the Aged Care Complaints Commissioner’s functions, and to the extent reasonably necessary for certain purposes.  These purposes are:

 

(i)     assessing an approved provider’s compliance with its responsibilities under Chapter 4 of the Aged Care Act; or

(ii)   assessing whether records have been kept as required under Part 6.3 of the Aged Care Act.

Subsection (3) specifies that an authorised complaints officer must not enter premises unless the occupier has consented to the entry.  If an occupier has consented to the entry, the consent may be withdrawn at any time.  Where consent is withdrawn (for example, by asking the officer to leave), the authorised complaints officer must leave the premises.

 

Subsection (4) provides that, before the authorised complaints officer obtains the occupier’s consent to enter the premises, the officer must inform the occupier that he or she may refuse to give consent and that, if consent is given, it can be withdrawn at any time.

 

For entry of an authorised complaints officer to be lawful, the consent given by the occupier must be voluntary.

 

The note mentions a qualification to this subsection.  It points out that approved providers have a responsibility to cooperate with a person who is exercising powers under this Division.  An approved provider who does not comply with a request made under subsection (1) may not be complying with that responsibility.  This failure can result in a sanction being imposed under Part 4.4 of the Aged Care Act, but this note is not intended to suggest that sanctions would automatically be imposed in all circumstances where consent is refused.  Before sanctions would be considered, there are a number of procedural fairness steps under Part 4.4 of the Aged Care Act which give the approved provider opportunities to respond to concerns before sanctions would be imposed.

 

Subsection (5) sets out that an authorised complaints officer must not enter premises under subsection (1) or exercise complaints powers under section 94B-2 if the occupier has asked the officer to produce his or her identity card and the officer fails to do so.

 

New section 94B-4:  Power to ask people to answer questions etc.

This new section gives authorised complaints officers similar powers to those under section 91-2 of the Aged Care Act.

 

Under subsection (1), an authorised complaints officer who has entered premises under section 94B-3 may ask a person at the premises to answer questions and produce any documents or records as requested.

 

Under subsection (2), the person may refuse to answer questions or produce documents or records.

 

The note mentions a qualification to this subsection.  It points out that approved providers have a responsibility to cooperate with a person who is exercising powers under this Division.  An approved provider who does not comply with a request made under subsection (1) may not be complying with that responsibility.  This failure can result in a sanction being imposed under Part 4.4 of the Aged Care Act, but this note is not intended to suggest that sanctions would automatically be imposed in all circumstances where consent is refused.  Before sanctions would be considered, there are a number of procedural fairness steps under Part 4.4 of the Aged Care Act which give the approved provider opportunities to respond to concerns before sanctions would be imposed.

 

Subsection (3) provides that the powers of the authorised complaints officer under this section are to be exercised subject to the requirements of Australian Privacy Principles 3 and 5 under the Privacy Act 1988 .

 

New section 94B-5:  Occupier of premises to assist authorised complaints officers

This new section gives authorised complaints officers similar powers to those under section 91-3 of the Aged Care Act.

 

Subsection (1) provides that an authorised complaints officer who has entered premises may ask the occupier to provide reasonable assistance in exercising the officer’s powers under section 94B-3.

 

Subsection (2) specifies that an occupier may refuse to provide assistance requested.

 

The note mentions a qualification to this subsection.  It points out that approved providers have a responsibility to cooperate with a person who is exercising powers under this Division.  An approved provider who does not comply with a request made under subsection (1) may not be complying with that responsibility.  This failure can result in a sanction being imposed under Part 4.4 of the Aged Care Act, but this note is not intended to suggest that sanctions would automatically be imposed in all circumstances where consent is refused.  Before sanctions would be considered, there are a number of procedural fairness steps under Part 4.4 of the Aged Care Act which give the approved provider opportunities to respond to concerns before sanctions would be imposed.

 

Items 12, 13 and 14:  Part 6.6 (heading), Division 95A (heading) and Section 95A-1 (heading)

These items repeal the current headings to Part 6.6, Division 95A and section 95A-1, and substitute new headings that refer to the Aged Care Complaints Commissioner.  These changes are required due to changing the title of the Commissioner.

 

Item 15:  Subsection 95A-1(1)

This item changes the title of the Aged Care Commissioner to the Aged Care Complaints Commissioner.  This change is to reflect the fact that the Commissioner’s functions relate to aged care complaints.

 

The note clarifies that section 25B of the Acts Interpretation Act 1901 applies to the change in title of the office of the Commissioner.  Section 25B provides that, where an Act alters the name of an office, such as the Aged Care Commissioner, then the office continues in existence under the new name so that its identity is not affected.  As such, the office of the Aged Care Commissioner before the commencement of the new Act is the same as the office of the Aged Care Complaints Commissioner after the commencement of the new Act.  Any references to the Aged Care Commissioner in any instrument under an Act, or any award, industrial determination or industrial agreement (such as remuneration determinations by the Remuneration Tribunal), may be construed as a reference to the Aged Care Complaints Commissioner.

 

Item 16:  Subsection 95A-1(2)

This item amends subsection 95A-1(2), which describes the functions of the Aged Care Commissioner.  The Aged Care Commissioner currently has the power to examine:

 

·          certain decisions made under the Complaints Principles;

·          complaints about the Secretary’s processes for handling matters under the Complaints Principles and the processes of the Quality Agency in accrediting aged care services and conducting the quality review of home care services; and

  • on the Aged Care Commissioner’s own initiative, the Secretary’s processes for handling matters under the Complaints Principles, and the processes of the Quality Agency.

 

With the transfer of responsibility for the management of aged care complaints from the Secretary to the Aged Care Complaints Commissioner, the functions of the Commissioner as set out in the Aged Care Act need to be amended.  This item repeals subsection 95A-1(2) and substitutes new provisions setting out the Commissioner’s functions as follows:

 

(a)   the functions relating to complaints and other concerns conferred on the Commissioner by the Complaints Principles made under section 96-1.  It is proposed that the Complaints Principles will detail the powers of the Aged Care Complaints Commissioner to manage and resolve complaints and other concerns about Commonwealth subsidised aged care services through which aged care is provided by approved providers;

(b)   to educate people (including approved providers) and develop resources relating to best practice in the handling of complaints and matters arising from complaints relating to approved providers’ responsibilities under the Aged Care Act and Principles made under that Act;

(c)   any other functions conferred on the Aged Care Complaints Commissioner by the Complaints Principles.  This power provides some flexibility to broaden the functions of the Commissioner if needed, yet also ensures there is appropriate Parliamentary scrutiny of any proposed additional functions of the Commissioner;

(d)   any other functions conferred on the Aged Care Complaints Commissioner by the Aged Care Act.  This power provides some flexibility to broaden the functions of the Commissioner in the Aged Care Act if needed; and

(e)   to advise the Minister, at the Minister’s request, about matters relating to any of the Aged Care Complaints Commissioner’s functions.

The intention of this item is to remove the Aged Care Complaints Commissioner’s functions to examine decisions made by the Secretary under the Complaints Principles, and to ensure the Complaints Principles may give the Commissioner functions in relation to complaints and other concerns.  The Commissioner will no longer need functions to examine decisions or processes for handling complaints, because the Commissioner will now have primary responsibility over the management and resolution of those complaints under the Complaints Principles.  It will also no longer be appropriate for the Commissioner to consider complaints about the processes of the Quality Agency.  Concerns about those processes can be raised with the Commonwealth Ombudsman under existing arrangements.

 

Item 17:  Before subsection 95A-1(3)

This item inserts a new subheading into section 95A-1.  This heading relates to subsections 95A-1(3) and (4), which allow the Commissioner to request information from the Secretary of the Department and the CEO of the Quality Agency for the purposes of the Commissioner’s functions.  The substance of subsections 95A-1(3) and (4) is unchanged.

 

Items 18, 20, 21, 22, 23, 24, 25, 27 and 28

These items make minor amendments to change references in Division 95A to the Aged Care Commissioner to the Aged Care Complaints Commissioner.  These changes are required due to the name change of the Commissioner by item 15 above.  References are changed in the following provisions of the Aged Care Act:

 

·          subsections 95A-1(3) and (4) ( item 18 );

·          sections 95A-2, 95A-3, 95A-4, 95A-5, 95A-6, 95A-7, 95A-8, 95A-9 and 95A-10 ( item 20 );

·          section 95A-11 (heading) and section 95A-11 ( items 21 and 22 );

·          section 95A-11A (heading) and section 95A-11A ( items 23 and 24 );

·          subsection 95A-12(1) ( item 25 ); and

·          subsection 96-2(2) (heading) and subsection 96-2(2) ( items 27 and 28 ).

Item 19:  At the end of section 95A-1

This item adds new subsections 95A-1(5) and (6), which allow the Secretary of the Department and the CEO of the Quality Agency to request information from the Commissioner for the purposes of their functions.  The intention of these subsections is to mirror the existing subsections 95A-1(3) and (4) so that information can be passed between the Secretary, the Commissioner and the Quality Agency as necessary to perform their functions.

 

Item 26:  Subsection 95A-12(2)

Section 95A-12 currently sets out the matters that must be included in the Commissioner’s annual report.  This item repeals the existing subsection (2) and substitutes a new subsection (2) that provides the report must include any information required by the Commissioner Principles.

 

Items 29 and 30:  Clause 1 of Schedule 1

These items make changes to definitions in Schedule 1 (the Dictionary) of the Aged Care Act.

 

Consistent with the change in title of the Commissioner, items 29 and 30 amend the definition of Aged Care Commissioner so it now refers to the Aged Care Complaints Commissioner .

 

Item 30 also inserts new definitions of authorised complaints officer and complaints powers into the Dictionary of the Aged Care Act.  An authorised complaints officer has the meaning given by subsection 94B-1(1), and complaints powers has the meaning given by section 94B-2.

 

Amendments to the Quality Agency Act

 

Items 31, 32 and 33:  Section 3, Section 3 (definition of Aged Care Commissioner ) and Paragraph 49(h)

Consistent with the change in title of the Aged Care Commissioner to the Aged Care Complaints Commissioner, these items make consequential amendments to the Quality Agency Act so references to the Aged Care Commissioner are replaced with references to the Aged Care Complaints Commissioner.

 

Part 2 - Transitional provisions

 

Item 34:  Complaints Principles may deal with transitional matters

This item provides that the Complaints Principles may deal with matters of a transitional nature relating to amendments made by this Bill.  For example, transitional provisions may deal with the management of complaints that are being dealt with by the Secretary or examined by the Commissioner at the time this Act commences.

 

 



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the

Human Rights (Parliamentary Scrutiny) Act 2011

AGED CARE AMENDMENT

(INDEPENDENT COMPLAINTS ARRANGEMENTS) BILL 2015

 

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 Aged Care Amendment (Independent Complaints Arrangements) Bill 2015 amends the Aged Care Act 1997 to transfer responsibility for the management and resolution of complaints and other concerns about aged care services provided by approved providers (managed administratively through the Aged Care Complaints Scheme) from the Secretary of the Department of Social Services to the Aged Care Commissioner.

The Bill describes the removal of the existing review functions of the Aged Care Commissioner in relation to certain decisions made by the Secretary under the Complaints Principles.  The Bill also describes the removal of the Commissioner’s review functions in relation to the Secretary’s processes for handling complaints under the Complaints Principles, and certain processes of the Australian Aged Care Quality Agency.  The Bill also changes the title of the Aged Care Commissioner to the Aged Care Complaints Commissioner.

Human rights implications

The Bill engages the following human rights:

·          the right to an adequate standard of living;

·          the right to the enjoyment of the highest attainable standard of physical and mental health; and

·          the right to protection from exploitation, violence and abuse.

Standards of living and health

The Bill engages the right to an adequate standard of living and the right to the enjoyment of the highest attainable standard of physical and mental health, as contained in article 11(1) and article 12(1) of the International Covenant on Economic, Social and Cultural Rights, and article 28 and article 25 of the Convention on the Rights of Persons with Disabilities (CRPD).

 



Protection from exploitation, violence and abuse

The Bill engages the right to protection from exploitation, violence and abuse, as contained in article 20(2) of the International Covenant on Civil and Political Rights , article 19(1) of the Convention on the Rights of the Child and article 16(1) of the CRPD .

The transfer of responsibility for complaints management to a statutory office-holder independent of the department which performs the role of subsidiser and regulator enhances human rights by ensuring there is no perceived ‘conflict of interest’ in the handling of complaints, and further protects consumers from exploitation, violence and abuse.

Further protections for consumers arise as complaints about the handling of complaints can be referred to the Commonwealth Ombudsman.

Conclusion

The Bill is compatible with human rights as it promotes the human rights to an adequate standard of living, the highest attainable standard of physical and mental health and protection from exploitation, violence and abuse.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Circulated by the authority of the Assisant Minister for Social Services, Senator the Hon Mitch Fifield ]