EXPLANATORY STATEMENT
Issued by the authority of the Minister for Aged Care
Aged Care Act 1997
Australian Aged Care Quality Agency (Other Functions) Amendment (Short-term Restorative Care) Instrument 2016
Purpose
The Australian Aged Care Quality Agency Act 2013 (Quality Agency Act) established the Australian Aged Care Quality Agency (Quality Agency) on 1 January 2014 and prescribes the functions of the Chief Executive Officer (CEO).
Paragraph 12(h) of the Quality Agency Act allows the Minister to specify other functions of the Quality Agency CEO. The Minister made the Australian Aged Care Quality Agency (Other Functions) Specification 2015 (the Specification) to provide the Quality Agency CEO with the function to undertake quality reviews of specific Commonwealth-subsidised aged care services.
The purpose of the Australian Aged Care Quality Agency (Other Functions) Amendment (Short-term Restorative Care) Instrument 2016 (the Instrument) is to amend the Specification to provide authority for the Quality Agency CEO to undertake quality reviews of aged care services providing short-term restorative care, which will be established as a new kind of flexible care by the Aged Care Legislation Amendment (Short-term Restorative Care) Principles 2016.
Background
As part of the 2015-16 Budget measure Aged Care – Increasing short term restorative care places, the Australian Government announced the expansion of flexible aged care initiatives to include a new kind of flexible care called short-term restorative care. The budget measure is implemented primarily through changes to the Principles made under the Aged Care Act 1997.
The Instrument is necessary to give effect to short-term restorative care by giving the Quality Agency CEO authority to undertake quality reviews of aged care services providing short term restorative care. This will ensure that the provision of short‑term restorative care is subject to quality assurance by the Quality Agency.
Commencement
The instrument commences at the same time as the Aged Care Legislation Amendment (Short-term Restorative Care) Principles 2016 commence. The commencement date of that instrument is the day after it is registered. The purpose of aligning the commencement of this instrument with that Principle is to ensure that all legislative amendments required for the implementation of the short-term restorative care programme will commence on the same date.
Consultation
In developing the policy design of the short-term restorative care programme, the Department held a public consultation process including the release of a public policy consultation paper which sought feedback from the aged care sector, external workshops and a webinar. The Department received submissions from individuals and a range of organisations including aged care sector peak body representatives, state and territory governments, medical experts, allied health, Aboriginal health services and individual aged care sector providers from across the country, including from rural and remote areas. Stakeholder feedback received in these submissions and workshops informed the final design of the short-term restorative care programme.
In preparing this instrument, the Department consulted with the Australian Aged Care Quality Agency. As consultation was undertaken with regards to the policy design of the short-term restorative care programme, an exposure draft of this instrument was not released for public comment.
Regulation Impact Statement (RIS)
Following consultation with the Office of Best Practice Regulation (OBPR), a RIS is not required as per OPBR reference number 18241.
This instrument is a legislative instrument for the purposes of the Legislation Act 2003.
Explanation of the provisions
Clause 1
This section provides how the proposed instrument is to be cited, that is, as the Australian Aged Care Quality Agency (Other Functions) Amendment (Short-term Restorative Care) Instrument 2016.
Clause 2
This section sets out the commencement of the instrument. The commencement of this instrument is the same date as the Aged Care Legislation Amendment (Short-term Restorative Care) Principles 2016.
Clause 3
This section provides that the authority for making this instrument is the Australian Aged Care Quality Agency Act 2013. Paragraph 12(h) of that Act provides that the Minister may specify additional functions of the CEO of the Quality Agency by legislative instrument.
Under subsection 33(3) of the Acts Interpretation Act 1901 (the Acts Interpretation Act), where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Accordingly, the power in paragraph 12(h) of the Australian Aged Care Quality Agency Act 2013 is relied on, in conjunction with subsection 33(3) of the Acts Interpretation Act, to amend the Specification.
Clause 4
This section 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
Item 1: Section 1
Section 1 of the Specification states the name of the Specification is the Quality Agency (Other Functions) Specification 2015. This item repeals section 1 and renames it as the Aged Care Quality Agency (Other Functions) Instrument 2015. The new title of the instrument reflects current best practice in legislative drafting.
Item 2: Sections 4 and 5
This item amends section 4 and 5 as a result of item 1 to clarify that the Instrument’s new name is the Aged Care Quality Agency (Other Functions) Instrument 2015.
Item 3: Section 5
This item defines Act as the Australian Aged Care Quality Agency Act 2013.
Item 4: Section 5 (definition of CEO)
This item repeals the definition of CEO. This definition is not needed in the Instrument because the term CEO is already defined in the Quality Agency Act and will apply to the Instrument due to the operation of paragraph 13(1)(b) of the Legislation Act 2003, which provides that expressions used in a legislative instrument have the same meaning as that given in the enabling legislation.
Item 5: Section 5
This item amends section 5 to provide a definition of Flexible Care Standards as being set out in the Quality of Care Principles made under section 96-1 of the Act. This definition is required due to the CEO’s functions as amended by item 11.
Item 6: Section 5
This item repeals the following definitions:
- Quality Agency; and
- Secretary.
These definitions are not needed because these terms are already defined in the Quality Agency Act and will apply to the Instrument due to the operation of paragraph 13(1)(b) of the Legislation Act 2003.
Item 7: After section 5
This item introduces a new section 5A which clarifies that the CEO’s functions under this Instrument are set out in Schedule 1 to the Instrument.
Item 8: Schedule 1 (heading)
This item renames Schedule 1 of the instrument as Schedule 1—Other functions of the CEO. This amendment is needed to clarify the Secretary’s functions due to the CEO’s functions as amended by item 11.
Item 9: Clause 1 of Schedule 1
This item omits “for paragraph 12(h) of the Act” to simplify that the CEO has authority to carry out the functions specified in Clause 1 of Schedule 1 under the Quality Agency Act.
Item 10: Clause 2 of Schedule 1
This item omits “for paragraph 12(h) of the Act” to simplify that the CEO has authority to carry out the functions specified in Clause 2 of Schedule 1 under the Quality Agency Act.
Item 11: At the end of Schedule 1
This item adds a new Part 2—Other additional functions to Schedule 1. Section 3 provides that these functions relate to flexible care provided as short-term restorative care. In particular, section 3 provides that the CEO has the following functions in relation to short-term restorative care:
- to accredit flexible care services that provide short-term restorative care in a residential care setting. The accreditation must be completed in accordance with the Quality Agency Principles 2013 and the Flexible Care Standards as they apply to the services; and
- to conduct quality reviews of flexible care services that provide short-term restorative care in a home care setting. The quality review process must be completed in accordance with the Quality Agency Principles and the Flexible Care Standards as they apply to the services. This quality review process is the same process as that which applies to home care services.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Australian Aged Care Quality Agency (Other Functions) Amendment (Short-term Restorative Care) Instrument 2016
This 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.
Overview of the legislative instrument
The legislative instrument provides clear authority for the Australian Aged Care Quality Agency Chief Executive Officer to accredit flexible care services that provide short-term restorative care in a residential care setting, and to conduct quality reviews of aged care services providing short-term restorative care in a home care setting. This will ensure that the provision of short-term restorative care is subject to quality assurance by the Quality Agency.
Human Rights Implications
The legislative instrument 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.
This legislative instrument 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). Further, the legislative instrument 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 (ICCPR), article 19(1) of the Convention on the rights of the Child and article 16(1) of the CRPD.
Enabling the Quality Agency to accredit and undertake quality review of aged care services will ensure that the care recipients enjoy an adequate standard of living and the highest attainable standards of physical and mental health and ensure that they are protected from exploitation, violence and abuse.
Conclusion
This legislative instrument is compatible with human rights as it promotes the human rights to an adequate standard of living, the highest standard of physical and mental health and protection from exploitation, violence and abuse.
The Hon Sussan Ley, MP
Minister for Aged Care