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Aged Care Amendment (Security and Protection) Bill 2007

Schedule 2 Reporting assaults

   

Aged Care Act 1997

1  After section 63-1

Insert:

63-1AA   Responsibilities relating to alleged and suspected assaults

             (1)  This section sets out the responsibilities of an approved provider of residential care relating to an allegation or suspicion of a * reportable assault (see subsection (9)).

Reporting reportable assaults

             (2)  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, to:

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

                     (b)  the Secretary.

             (3)  Subsection (2) does not apply in the circumstances (if any) specified in the Accountability Principles, but the approved provider is responsible for complying with the requirements (if any) that those Principles make of the provider in relation to any of those circumstances or the alleged or suspected * reportable assault.

             (4)  To avoid doubt, subsections (2) and (3) do not:

                     (a)  affect any obligation the approved provider has under a law of a State or Territory to report a * reportable assault or an allegation or suspicion of a reportable assault; or

                     (b)  prevent the approved provider from reporting to a police officer or the Secretary a reportable assault or an allegation or suspicion of a reportable assault.

Requiring staff members to report reportable assaults

             (5)  The approved provider is responsible for taking reasonable measures to require each of its staff members who provides a service connected with the approved provider’s residential care service and 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 chosen by the member:

                     (a)  the approved provider;

                     (b)  one of the approved provider’s * key personnel;

                     (c)  another person authorised by the approved provider to receive reports of suspected reportable assaults;

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

                     (e)  the Secretary.

Note:          Subsection (9) defines staff member of an approved provider.

Ensuring staff member informants are not victimised

             (6)  The approved provider is responsible for ensuring, as far as reasonably practicable, compliance with paragraphs 96-8(2)(b) and (3)(b) and subsections 96-8(6) and (7) in relation to a person who:

                     (a)  is one of the approved provider’s staff members; and

                     (b)  makes a disclosure that qualifies for protection under section 96-8.

Note 1:       Under section 96-8, some disclosures of information qualify for protection if they are made by a staff member of an approved provider and the member has reasonable grounds to suspect that the information indicates that a reportable assault has occurred.

Note 2:       The responsibility under subsection (6) covers not only compliance by the approved provider itself with the relevant provisions of section 96-8, but extends to the approved provider ensuring as far as reasonably practicable that there is also compliance by others, such as:

(a)           other staff members of the approved provider; and

(b)           other parties with whom the approved provider contracts (for example, an employment agency).

Protecting informants’ identities

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

                     (b)  the Secretary;

                     (c)  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;

                     (d)  one of the approved provider’s * key personnel.

             (8)  If a person reports a suspected * reportable assault to someone (the report recipient ) who is one of the approved provider’s:

                     (a)  * key personnel; or

                     (b)  staff members 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 provider or a person described in paragraph (7)(a), (b), (c) or (d).

Definitions

             (9)  In this section:

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.

Note:          The Accountability Principles may specify an assault by reference to a class: see subsection 13(3) of the Legislative Instruments Act 2003 .

staff member of an approved provider means 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.

2  After section 96-7

Insert:

96-8   Protection for reporting reportable assaults

Disclosures qualifying for protection

             (1)  A disclosure of information by a person (the discloser ) qualifies for protection under this section if:

                     (a)  the discloser is:

                              (i)  an approved provider of residential care in respect of which the provider is approved; or

                             (ii)  a staff member (as defined in section 63-1AA) of such an approved provider; and

                     (b)  the disclosure is made to:

                              (i)  a police officer; or

                             (ii)  the Secretary; or

                            (iii)  the approved provider; or

                            (iv)  one of the approved provider’s * key personnel; or

                             (v)  another person authorised by the approved provider to receive reports of alleged or suspected * reportable assaults; and

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

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

                     (e)  the discloser makes the disclosure in good faith.

Immunities for disclosure

             (2)  If a person makes a disclosure that qualifies for protection under this section:

                     (a)  the person is not subject to any civil or criminal liability for making the disclosure; and

                     (b)  no contractual or other remedy may be enforced, and no contractual or other right may be exercised, against the person on the basis of the disclosure.

Note:          This subsection does not provide that the person is not subject to any civil or criminal liability for conduct of the person that is revealed by the disclosure.

             (3)  Without limiting subsection (2):

                     (a)  the person:

                              (i)  has qualified privilege in proceedings for defamation relating to the disclosure; and

                             (ii)  is not liable to an action for defamation at the suit of another person relating to the disclosure; and

                     (b)  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.

             (4)  Paragraphs (2)(a) and (3)(a) do not affect any other right, privilege or immunity the person has as a defendant in proceedings, or an action, for defamation.

             (5)  Without limiting paragraphs (2)(b) and (3)(b), if a court is satisfied that:

                     (a)  a person (the employee ) is employed in a particular position under a contract of employment with another person (the employer ); and

                     (b)  the employee makes a disclosure that qualifies for protection under this section; and

                     (c)  the employer purports to terminate the contract of employment on the basis of the disclosure;

the court may:

                     (d)  order that the employee be reinstated in that position or a position at a comparable level; or

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

Prohibitions on victimisation for disclosure

             (6)  A person must not cause detriment (by act or omission) to another person because the other person makes a disclosure that qualifies for protection under this section.

Note:          If the other person is a staff member (as defined in section 63-1AA) of an approved provider, the provider has a responsibility under that section to ensure, as far as reasonably practicable, compliance with subsections (6) and (7). Sanctions may be imposed on the provider under Part 4.4 if the provider does not comply with the responsibility.

             (7)  A person must not make to another person a threat (whether express or implied or conditional or unconditional) to cause any detriment to the other person because the other person:

                     (a)  makes a disclosure that qualifies for protection under this section; or

                     (b)  may make a disclosure that would qualify for protection under this section.

3  Clause 1 of Schedule 1

Insert:

reportable assault has the meaning given by section 63-1AA.

4  Application

The amendments made by this 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.