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Thursday, 8 February 2007
Page: 5

Mr PYNE (Assistant Minister for Health and Ageing) (9:18 AM) —I move:

That this bill be now read a second time.

On 27 July 2006 the government announced a $90.2 million package of reforms aimed at further safeguarding older people in Australian government subsidised aged care from sexual and serious physical assault.

The Minister for Ageing, Senator Santoro, foreshadowed at that time that the reforms would include the creation of a new Aged Care Commissioner, new complaints investigation procedures, a regime of compulsory reporting of certain types of assault, and legislative protections for whistleblowers.

I am very pleased today to be introducing a bill which amends the Aged Care Act 1997 to achieve these ends.

Before I describe the reforms in detail, it is appropriate to first thank the older Australians and their families, together with approved providers, who have provided Minister Santoro with invaluable advice over the past year, and who have been instrumental in the development of these reforms.

Since announcing the proposed reforms, the government has listened closely to numerous older Australians and their families. The minister has met with as many people involved in the aged-care sector as possible—nurses, managers, careworkers, residents, their families and, most importantly, some of the victims of abuse. He has also received and responded to many emails from the public, and held face-to-face meetings with a wide range of people.

These communications have been critical to the government’s understanding of the needs of the sector and to how best implement appropriate reforms, including through the bill which I have the pleasure of introducing into the parliament today.

The minister has also worked very closely with the sector to ensure the nature and degree of regulation is reasonable. At this point it is appropriate to acknowledge the contribution by members of the Aged Care Advisory Committee, especially the peak aged-care bodies for their cooperation and assistance in the development of this legislation. All have worked closely with government to ensure that this legislation strikes a good balance between the needs of both residents and industry.

The vast majority of aged-care providers give excellent care, and most aged-care workers regard their duty of care to our vulnerable, frail and older Australians as sacrosanct.

But the government must have the capacity to deal with those rare but distressing incidents of alleged sexual and physical abuse in residential aged care that came to light earlier last year. Like the minister and all caring Australians, I was shocked by these incidents.

The government has acted as quickly as possible to improve the system and make it more effective in combating physical and sexual abuse.

Today, the government honours our commitment to older Australians and their families by introducing legislation which achieves three main purposes:

  • it establishes a scheme for compulsory reporting of abuse;
  • it includes protection for people who make disclosures about abuse; and
  • it establishes a new and independent Aged Care Commissioner. This is one component of several very broad reforms that enhance the department’s capacity to respond to complaints about aged-care services.

Each of these initiatives is proposed to take effect from 1 April 2007. I would like to take a little more time to describe these reforms in more detail.

Compulsory reporting

First, the scheme for compulsory reporting of abuse.

When the issue of physical and sexual abuse became a public issue last year, the major stakeholders within the aged-care sector, namely the residents and their families, urged the introduction of a formal system of compulsory reporting as an obvious response to the issue.

The government listened very carefully and consulted widely, and today the bill that I am introducing establishes a requirement for approved providers to report allegations or suspicions of unlawful sexual contact, or unreasonable use of force, on a resident in a residential aged-care service.

The report must be made to both the police and to the Department of Health and Ageing. It must also be made as soon as possible, and not later than 24 hours, after the allegation or suspicion comes to the attention of the approved provider.

While it was the government’s original intention that all allegations of abuse be reported, the government received strong representations from the sector in relation to the very sensitive issue of assaults carried out by residents suffering from dementia or other forms of mental impairment. In these limited circumstances, the government is therefore proposing that there be a discretion not to report.

In such a case, the focus should be on ensuring that there is in place an appropriate behaviour management plan to ensure both the safety of that resident and their fellow residents.

While the discretion not to report to police and the department will exist in these very limited circumstances, it is important to note that this is no way obviates the need for all approved providers to, at all times, provide a safe and secure environment for residents and to take appropriate action if critical incidents occur.

Under the changes, approved providers will also be required to ensure that there are internal processes in place for the reporting, by staff, of all incidents involving alleged sexual or serious physical assault.

Staff members will be able to report to the approved provider or the approved provider’s key personnel or other authorised people. The bill also enables staff members to report directly to the police or the department. This may occur where, for example, a staff member does not feel comfortable reporting alleged incidents to the home.

Failure to have the necessary systems and protocols in place, and failure to report incidents, will indicate regulatory noncompliance, leading to the possible imposition of sanctions.

Protection for those who report

The bill underpins these new compulsory reporting arrangements with protection for people who report abuse.

It is obvious to me that people will be more likely to report incidents of assault where they do not fear reprisal from their employer, or indeed other staff. Protections will therefore be introduced as part of the compulsory reporting requirements.

Approved providers will be required to have policies and procedures in place to ensure that the identity of staff who report is protected and that they are not unfairly treated as a result of making a report.

The legislation expressly provides that staff members who make disclosures about assaults must have their identities protected and must not be victimised. The legislation also protects disclosers from civil and criminal liability in relation to the disclosure and, amongst other things, enables a court to order that an employee be reinstated or paid compensation if their employment is terminated because of the fact that they made a protected disclosure.

Aged Care Commissioner

The third main purpose of the bill is to establish a new and independent Aged Care Commissioner, replacing the existing Commissioner for Complaints.

In consultations with residents, their families, approved providers, aged-care staff, and the previous commissioner, Mr Rob Knowles, it became clear to the government that the existing scope for investigation and action by the Commissioner for Complaints is too limited.

The government is therefore implementing broader reforms not only in relation to the role of the commissioner but also to the whole way that complaints are handled.

For example, a new Office of Aged Care Quality and Compliance will be established within the Department of Health and Ageing that is responsible for investigating any information about possible noncompliance by approved providers.

The new office will have the power to investigate all complaints and information, have nationally structured intake and prioritisation of all contacts by high-level, specifically trained staff and have the power to determine whether a breach of the approved provider’s responsibilities has occurred. Where a breach is identified, the office will have the power to require the approved provider to take appropriate action to remedy the breach.

Importantly, the office will have the capacity to issue notices of required action to providers who have breached their responsibilities, and take compliance action where the provider fails to remedy the issue.

The Office of Aged Care Quality and Compliance will have greater capacity to take action than the Complaints Resolution Scheme which it is replacing. The experience of the latter has provided the government with much guidance in terms of these reforms.

The new Aged Care Commissioner will play a critical role in these new arrangements. The commissioner will provide an independent mechanism to hear complaints about action taken by the new Office of Aged Care Quality and Compliance in the investigation of complaints, and also about the conduct of the Aged Care Standards and Accreditation Agency and its assessors.

The Aged Care Commissioner will also have greater capacity to undertake ‘own motion’ reviews.

These reforms significantly enhance the government’s capacity, and that of providers, to deal with information and complaints about the quality of care and services, including abuse, in aged-care services that are directly subsidised by the federal government.

They place the government, providers, residents, families, advocates, indeed the entire community, in a much stronger position to respond to, and deal with, the issues and also to be proactive and effective in identifying areas of risk.


As I noted in my introductory remarks, these reforms will, subject to the agreement of parliament, take effect from 1 April 2007.

Prior to that time the government will be developing comprehensive principles which will be made under the act and which will provide extensive detail about each of the elements of the reforms.

The department will also be issuing approved providers with information and guidelines on the new requirements.

It is imperative that we get these reforms right, and that we continue to listen closely to the views of all stakeholders. The time the government has taken to develop the reform package, and to talk extensively with all concerned parties, has paid dividends. The bill before us is well thought out, appropriate, and adapted to the challenges that face us.

It gives even greater confidence to the people of Australia about the already high-quality care that is provided in our aged-care homes today.

I commend the bill to the House.

Debate (on motion by Ms Macklin) adjourned.