EXPLANATORY STATEMENT
Issued by the authority of the Assistant Minister for Social Services
Aged Care Act 1997
Accountability Amendment (Quality Agency) Principle 2013
The Aged Care Act 1997 (the Act) provides for the regulation and 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.
Section 96-1 of the Act allows the Minister to make Principles providing for various matters required or permitted by a Part or section of the Act. Among the Principles made under section 96-1 are the Accountability Principles 1998 (the Principles).
The purpose of the Accountability Amendment (Quality Agency) Principle 2013 (the Amending Principle) is to give effect to amendments made as a consequence of the Aged Care Standards and Accreditation Agency being replaced by the Australian Aged Care Quality Agency (the Quality Agency) from 1 January 2014. The opportunity is also being taken to make some minor, technical amendments to improve the wording and operation of the Principles.
The Amending Principle is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Consultation
The changes described in the Amending Principle are consequential to the establishment of the new Quality Agency under the Australian Aged Care Quality Agency Act 2013.
The establishment of the Quality Agency was subject to extensive consultation with the aged care sector, consumers and industry and professional bodies. This included consultation on the new legislation via an overview paper, a video presentation detailing the changes, briefing sessions in Melbourne, Sydney and Canberra, and a call for public comment.
As part of these consultations, it was noted that changes would be made to Principles (delegated legislation) in order to support the changes made through the Australian Aged Care Quality Agency Act 2013. Where these are substantial, consultation is being undertaken on the draft Principles. For example, consultation was undertaken on draft Quality Agency Principles and draft Quality Agency Reporting Principles.
However, where the changes are purely consequential or are minor, technical changes, public consultation is not being undertaken. As this Amending Principle contains only consequential and technical changes, public consultation has not been undertaken on a draft of the Amending Principle.
Regulation Impact Statement
The Office of Best Practice Regulation has advised that no Regulation Impact Statement is required (OBPR ID 15170).
Commencement
The Amending Principle commences on 1 January 2014.
ATTACHMENT
Details of the Accountability Amendment (Quality Agency) Principle 2013
Clause 1 states that the name of the Amending Principle is the Accountability Amendment (Quality Agency) Principle 2013.
Clause 2 states that the Amending Principle commences on 1 January 2014.
Clause 3 provides that the authority for the making of the Amending Principle is the Aged Care Act 1997 (the Act).
Clause 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule 1 – Amendments
Accountability Principles 1998
Item 1 - Note (before Part 1)
The Accountability Principles 1998 (the Principles) currently include a note at the front of the Principles that summarises the content of the Principles. As a result of the amendments being made through these Amending Principles, the note is no longer accurate. Consistent with cotemporary drafting practice, that does not include such boxed notes, this note is therefore being removed.
Item 2 - Section 1.3 (definition of Accreditation Grant Principles)
This item repeals the definition of Accreditation Grant Principles at section 1.3. The Accreditation Grant Principles will be repealed with effect from 1 January 2014. The Accreditation Grant Principles will be replaced with the Quality Agency Principles (made under the Australian Aged Care Quality Agency Act 2013) and the Quality Agency Reporting Principles (made under the Act).
Item 3 - Section 1.3
This item inserts three new definitions at section 1.3:
- Quality Agency, which refers to the Australian Aged Care Quality Agency;
- Quality Agency Principles, which means the Quality Agency Principles made under subsection 53(1) of the Australian Aged Care Quality Agency Act 2013; and
- Quality assessor which means a person who is registered as a quality assessor in accordance with the Quality Agency Principles.
Item 4 – Subsection 1.4(1)
Subsection 1.4(1) defines a representative for the purposes of the Principles. This item amends that definition to remove the references to the accreditation body and replace it with references to the Chief Executive Office of the Quality Agency and to quality assessors.
This is a consequential amendment as the result of the Aged Care Standards and Accreditation Agency being replaced by the Australian Aged Care Quality Agency.
Item 5 - Section 1.4 (note at the end)
This item repeals the note at the end of section 1.4 and substitutes a new note. The new note states that a number of expressions used in these Principles are defined in the Act, including authorised officer, certification and reportable assault. This amendment is consistent with current drafting conventions that terms used regularly within all aged care principles, such as approved provider and care recipient, are removed. These terms continue, for the purposes of the Principles, to have the meaning set out in the Dictionary in Schedule 1 to the Act. Terms used less commonly are specified in the note as expressions that are defined in the Act.
Item 6 – Section 1.6
This item repeals section 1.6 and replaces it with a new section that removes redundant
cross-references to section 63-1(1)(l) of the Act . The policy intent of the section is retained but the new section aligns with the changes to the definition of representative described in subsection 1.4(1).
Section 63-1(1)(l) of the Act has regard to an approved provider’s responsibility to allow people acting for accreditation bodies to have access to the service in the way described in the Accountability Principles 1998. With the commencement of the Australian Aged Care Quality Agency on 1 January 2014, no grant will be paid to an accreditation body and therefore this provision in the Act will not be relevant.
Item 7 – Section 1.7A
This item repeals section 1.7A and replaces it with a new section that removes redundant cross-references to section 63-1(1)(l) of the Act. The substance of the section remains unchanged.
Item 8 - Section 1.7B
This section currently enables the Aged Care Standards and Accreditation Agency to access an approved provider’s residential care service without giving notice to the approved provider
The section is being repealed and replaced with a new section that provides that the Chief Executive Officer of the Quality Agency and quality assessors may access an approved provider’s residential care service without giving notice to the approved provider.
Item 9 - Subsection 1.8(1)
This item repeals the existing subsection, which refers to accreditation bodies (that is, the Aged Care Standards and Accreditation Agency) and replaces it with a new subsection that states that section 1.8 applies to a representative other than the Chief Executive Officer of the Quality Agency or a quality assessor. For the purposes of this subsection, the relevant representative is the Aged Care Commissioner or a person or body authorised by the Secretary to access the residential care service to review certification of the service.
Item 10 - Subsection 1.8A (heading)
This item changes the heading of section 1.8A so that instead of referring to accreditation bodies the section relates to consent to access services by the Chief Executive Officer of the Quality Agency or by quality assessors.
Item 11 – Paragraph 1.8A(6) (note at the end)
This item removes a redundant reference to section 63‑1(1)(l) of the Act.
Item 12 - Subsection 1.8A(1)
This item repeals the existing subsection (which refers to the accreditation body) and replaces it with a new subsection that provides that a representative who is the Chief Executive Officer of the Quality Agency or a quality assessor must not access an approved provider’s residential care service without the consent of: the approved provider; or a person who is on, and apparently in charge of, the premises (the person in charge).
Item 13 – Section 1.13
This item removes a redundant reference to section 63‑1(1)(l) of the Act.
Item 14 - After section 1.14A
This item inserts a new section after section 1.14A. Section 1.14B provides that, for subsection 63-1B(2) of the Act, the period for approved providers to notify the Secretary about entry of care recipient to residential care service period is 28 days. This item is simply moving this section from section 1.16A to section 1.14B so that the provisions are properly ordered. There is no change in policy.
Item 15 - Section 1.16A
This item repeals section 1.16A (which is being reordered and remade at item 14) and replaces it with a new section. The new section provides for the Minister to require information from an approved provider on the extent of building, upgrading and refurbishment of an aged care service in order to prepare the annual report on the operation of the Act.
Section 63-2 of the Act states that the annual report on the operation of the Act must include information about the extent of building, upgrading and refurbishment of aged care facilities. This section expressly provides that it is an approved provider responsibility to give such information, if requested. The section also requires that the Minister must specify a reasonable time for the approved provider to comply with the request. This is consistent with current practice whereby information of this nature is requested through the annual survey of aged care homes.
Item 16 - Subsection 1.21(1)
This item omits the reference to section 1.23 as this section is being repealed through item 17.
Item 17 - Part 4, Division 3
This item repeals the whole of Division 3 in Part 4 as the transitional arrangements described in that Division are redundant and no longer required.
Item 18 - Part 5 (heading)
This item provides for a change to the heading of the part to better describe the operation of the Part. This is a minor technical amendment.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
The Accountability Amendment (Quality Agency) Principle 2013
The Accountability Amendment (Quality Agency) Principle 2013 (the legislative instrument) are 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 Legislative Instrument
The purpose of the legislative instrument is to amend and make consequential changes to the Accountability Principles 1997 consequential to the commencement of the new Australian Aged Care Quality Agency (the Quality Agency). This body will replace the existing Aged Care Standards and Accreditation Agency from 1 January 2014.
The legislative instrument makes minor technical changes to the Accountability Principles 1998 while maintaining the overall function and purpose of the legislation.
Human Rights Implications
The legislative instrument 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 regulate and promote a high quality of care and standard of living for the recipients of aged care services.
The legislative instrument 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.
Conclusion
The legislative instrument is compatible with human rights because it promotes the human right to the enjoyment of the highest attainable standard of physical and mental health.
Senator the Hon Mitch Fifield
Assistant Minister for Social Services