EXPLANATORY STATEMENT
Issued by the authority of the Minister for Ageing
Aged Care Act 1997
Accountability Amendment Principles 2008 (No. 2)
The Aged Care Act 1997 (the Act) provides for the funding of aged care services. Persons who are approved under the Act to provide aged care services (approved providers) can be eligible to receive subsidy payments in respect of the care they provide to approved care recipients.
Subsection 96-1(1) of the Act allows the Minister to make Principles providing for various matters required or permitted by a Part or section of the Act.
One set of Principles made under the Act is the Accountability Principles 1998 (the Accountability Principles).
The purpose of the Accountability Amendment Principles 2008 (No. 2) (the Amending Principles) is detailed below. The Amending Principles are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Accountability Amendment Principles 2008 (No. 2)
The purpose of these Amending Principles is to:
- introduce a new requirement for approved providers to notify the Secretary of the Department of Health and Ageing in the case of unexplained absences of residential care recipients where such absence has been notified to the police; and
- amend existing provisions relating to police checks. Since March 2007, certain staff members and volunteers of residential, community and flexible care services funded under the Act who have, or are reasonably likely to have, unsupervised access to care recipients, have been required to obtain a police certificate. The requirements in relation to this measure are set out under Part 4 of the Accountability Principles.
The current arrangements require staff and volunteers who have unsupervised access to care recipients to undertake a police check every three years to determine their suitability to provide aged care.
An amendment to the Accountability Principles removes the references to “unsupervised” access in relation to staff members, to require that all staff members who have access to care recipients, either supervised or unsupervised, are to obtain a police certificate.
The current requirements in relation to volunteers will not change. Volunteers who have unsupervised access to care recipients will continue to be required to have police certificates.
Consultation
The policies reflected in the Amending Principles were the subject of consultation with the aged care sector through the Ageing Consultative Committee, which comprises peak industry, professional and consumer bodies. Sector feedback was considered in the development and fine tuning of the complex legislative and policy reform process.
Regulation Impact Statement
The Office of Best Practice Regulation has advised that no Regulation Impact Statement is required (OBPR ID 9978 and 9821).
Details of the amendments to the Principles are listed at Attachment A.
ATTACHMENT A
NOTES ON CLAUSES
Clause 1 states that the name of the amending Principles is the Accountability Amendment Principles 2008 (No. 2).
Clause 2 states that the Principles commence on commencement of the Aged Care Amendment (2008 Measures No. 2) Act 2008.
Clause 3 states that Schedule 1 amends the Principles.
Schedule 1 Amendments
Item 1
This item amends section 1.14 which describes the purpose of Part 3 of the Accountability Principles. The amendments reflect the addition of a new requirement in Part 3 relating to notification of unexplained absences of care recipients to the Secretary in certain circumstances (refer item 2).
Item 2
This item inserts a new section in the Accountability Principles (section 1.14A) entitled “Notification of unexplained absences of care recipients to be given to Secretary”.
The section requires approved providers of residential care services to notify the Secretary if:
- a care recipient is absent from a residential care service; and
- the absence is unexplained; and
- the absence has been reported to the police.
The Secretary must be told about the absence as soon as reasonably practicable, and in any case within 24 hours after the provider reports the absence to the police. This is consistent with the timeframes for reporting of reportable assaults in accordance with section 63-1AA of the Act.
Item 3
Part 4 of the Principles sets out requirements relating to police checks for staff and volunteers. Items 3 to 11 amend various sections within Part 4 in order to achieve the policy intent of ensuring that all staff members who have access to care recipients, either supervised or unsupervised, obtain a police certificate.
Section 1.18 sets out key terms used in Part 4 and the definition for each term. The key terms are police certificate, staff member and volunteer.
Section 1.18 currently defines a staff member for the purposes of police certificate requirements as a person who “has, or is reasonably likely to have, unsupervised access to care recipients”. The word “unsupervised” is omitted from the definition to reduce the risk of potentially unsuitable people seeking work or continuing to work with particularly vulnerable care recipients. The extension of the requirement to unsupervised staff members makes police checks mandatory for all staff working in Australian Government subsidised aged care services who have, or are reasonably likely to have, access to care recipients, whether that access is supervised or unsupervised.
Item 4
This item amends the examples of persons who are staff members, to reflect the changes to the definition of staff member such that staff member includes a person who is under the control of the approved provider and has or is reasonably likely to have access to care recipients.
Examples of persons who are staff members include:
- kitchen, laundry, garden and office personnel employed by the approved provider; and
- consultants, trainers and advisors for accreditation support or systems improvement who are under the control of the approved provider if the person has, or is reasonably likely to have, access to care recipients.
Item 5
This item amends the examples of persons who are not staff members to include trades people who perform work otherwise than under the control of the approved provider (that is, as independent contractors).
Item 6
This item omits from subsection 1.21(1) reference to sections 1.22, 1.23 and 1.25 (transitional provisions under the current arrangements) and inserts reference to sections 1.22 and 1.23 (transitional provisions under the Accountability Amendment Principles 2008 (No. 2)).
This is a consequential change that results from the changes described at item 11.
Item 7
This item removes a potential anomaly in the Principles resulting from a difference in the wording of sections 1.19 and 1.21, which could result in a different test being applied depending on whether a person with a criminal conviction is seeking to become a staff member or volunteer or is already a staff member or volunteer.
The potential anomaly arises because a number of serious offences for which a person might be sentenced to imprisonment, such as armed robbery or manslaughter, could conceivably be committed without an assault forming part of the offence.
Therefore a police certificate recording that a person has been convicted of, and sentenced to imprisonment for, such an offence is consistent with a conviction for:
- a criminal offence including a form of assault; or
- a criminal offence not including a form of assault.
This item removes this potential anomaly to put it beyond doubt that a person who has been convicted of, and sentenced to imprisonment for, an offence that might include a form of assault is precluded from being a staff member of an approved provider, or volunteer as defined in section 1.18.
Item 8
This item inserts a new subsection (subsection 1.21(3)) to require an approved provider to take reasonable measures to require each of its staff members and volunteers to notify the approved provider if they are convicted of a precluding offence in the three year period between obtaining and renewing their police check.
The item also inserts a new subsection 1.21(4) that provides that where an approved provider is satisfied on reasonable grounds that the staff member or volunteer has been convicted of a precluding offence they must ensure that person does not continue as a staff member or volunteer.
Item 9
This item amends subsection 1.22(c) to ensure consistency in the conditions for new staff members and existing staff members who have not yet obtained a police certificate. Amended subsection 1.22(2) provides that a person who does not have a police certificate required under section 1.19 may become a staff member or volunteer if, until the police certificate is obtained, the person will be subject to appropriate supervision during periods when the person has access to care recipients.
Item 10
This item substitutes transitional arrangements that apply to existing staff and volunteers (that is, people who were working in aged care services at the time Part 4 took effect on 1 March 2007) with new transitional arrangements for the changes being made by these Amending Principles.
This item inserts a new section 1.23 (Conditions for all existing staff members) that provides a three month transition period to allow approved providers sufficient time to implement the new requirements.
The item also inserts a new section 1.24 (Additional condition for certain existing staff members) that sets out an additional requirement for existing staff members who, at any time after they turned 16, were a citizen or permanent resident of a country other than Australia. In this case, an approved provider must ensure that, in addition to meeting the condition in paragraph 1.23(a) or (b), the person has made, within three months after 1 January 2009, a statutory declaration stating that the person has never been convicted of murder or sexual assault, or convicted of, and sentenced to imprisonment for, any other form of assault.
Item 11
This item omits sections 1.25 and 1.26 as they are now redundant.
The current requirements in relation to volunteers will not change.
Item 12
This item substitutes the redundant subsection 1.27(1) with a new subsection that requires an approved provider to make a one-off written declaration to the Secretary that they have met the new requirements, as at the end of the three month period commencing from 1 January 2009. The declaration must be provided to the Secretary on or before 30 April 2009.
Item 13
This item omits “a key personnel” and inserts “one of the key personnel” to make clear that any one of an approved provider’s key personnel authorised to sign the declaration may do so.