EXPLANATORY STATEMENT
Issued by the authority of the Assistant Minister for Social Services
Aged Care Act 1997
Complaints 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 Complaints Principles 2011.
The purpose of the Complaints Amendment (Quality Agency) Principle 2013 (the Amending Principle) is to amend the Complaints Principles 2011 to reflect the role of the new Australian Aged Care Quality Agency (the Quality Agency) under the Australian Aged Care Quality Agency Act 2013. This body will replace the existing Aged Care Standards and Accreditation Agency from 1 January 2014.
The Amending Principle provides for the Aged Care Commissioner (ACC) to deal with complaints relating to the Quality Agency’s processes.
The Amending Principle also amends the Complaints Principles 2011 to remove the requirement for the Secretary to advise the ACC of the Secretary’s intention to, and reasons for, ending an ACC directed new resolution process when the Secretary initiates compliance action under Part 4.4 of the Act in relation to the issues raised in the complaint. This power was inadvertently provided to the ACC as part of amendments to the Complaints Principles 2011 in August 2013, however, the ACC’s jurisdiction does not extend to compliance activity.
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 largely 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.
The Amending Principle also includes a technical amendment to clarify the ACC’s jurisdiction where the Secretary has initiated action under Part 4.4 of the Act on the basis that the approved provider has not complied, or is not complying, with one or more of its responsibilities under Parts 4.1 to 4.3 of the Act. In relation to this amendment, the Department of Social Services undertook targeted consultation with the ACC. The feedback provided through these consultations was taken into account in the finalisation 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 Complaints Amendment (Quality Agency) Principle 2013 commences on 1 January 2014.
ATTACHMENT
Details of the Complaints Amendment (Quality Agency) Principle 2013
Clause 1 states the name of the Amending Principle is the Complaints 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.
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
Complaints Principles 2011
Item 1 – Section 13A.4
Item 1 inserts a new definition for the term ‘Quality Agency’ in section 13A.4. ‘Quality Agency’ means the Australian Aged Care Quality Agency. The Quality Agency is established under the Australian Aged Care Quality Agency Act 2013 and replaces the existing Aged Care Standards and Accreditation Agency.
Item 2 – After subsection 13A.26(5)
Subsection 13A.26(5) provides for the Secretary to notify the Aged Care Commissioner (ACC) of the Secretary’s intention to, and reasons for, ending an ACC directed new resolution process prior to doing so (paragraph 13A.26(5)(a)). This requires the Secretary to undertake a consultative process with the ACC to ensure that the ACC’s views have been understood and considered before a decision is finalised by the Secretary. Paragraph 13A.26(5)(b) also provides that the Secretary must take into account any further comments provided by the ACC within 7 days of the ACC being notified that the Secretary is considering ending the resolution process.
Item 2 inserts a new subsection 13A.26(5A) to provide that subsection 13A.26(5) does not apply if the Secretary initiates compliance action under Part 4.4 of the Aged Care Act 1997 (the Act), in respect of issues raised in the complaint, following an ACC directed resolution process. While the ACC will have been involved in the complaints resolution process, if the outcome of the complaint is that the Secretary initiates compliance action under the Act in relation to the issues that are the subject of the resolution process, then it is not appropriate that the ACC be involved.
With the introduction of the ACC in 2007, it was never envisaged that the ACC would have jurisdiction in relation to compliance action under Part 4.4 of the Act. Reviewable decisions made under Part 4.4 of the Act are subject to review by the Administrative Appeals Tribunal.
The scope of the ACC’s powers in relation to examining Scheme decisions following an original process specifically excluded where a matter has been resolved through compliance. This amendment rectifies an oversight in the amendments made to the Complaints Principles 2011 in August 2013. The amendment made at that time inadvertently included compliance action within the ACC’s scope where the Secretary initiates compliance action in relation to matters raised in the complaint following an ACC directed resolution process.
Item 3 - Section 13A.27
Section 13A.27 currently provides for a person to make complaints to the ACC about:
- the Secretary’s process for handling complaints under the Complaints Principles 2011 or Investigation Principles 2007; and
- the conduct of the Aged Care Standards and Accreditation Agency (or its assessors) under the Accreditation Grant Principles 2011.
This item repeals section 13A.27 and replaces it with a new section that removes the references to the out-dated Investigation Principles 2007 (which have been replaced by the Complaints Principles 2011) and replaces the references to the accreditation body with references to the new Quality Agency.
It also removes the ACC’s power to examine complaints about the conduct of quality assessors. As the Quality Agency will be a body established under the Financial Management and Accountability Act 1997 and staff of the Quality Agency will be subject to the Public Service Act 1999, it is not appropriate that the ACC consider the conduct of public servants. The conduct of public servants is a matter for the relevant agency and the Public Service Commission. The ACC will continue to have a role in considering specified processes of the Secretary and of the Quality Agency.
In summary, the section provides that a person may make a complaint orally or in writing to the ACC about:
- the Secretary’s process for handling complaints under the Complaints Principles 2011;
- the Quality Agency’s process for accrediting aged care services under the Quality Agency Principles 2013; or
- the Quality Agency’s process for conducting the quality review of home care services under the Quality Agency Principles 2013.
The complaint must be made within 12 months from the date of the completion of the process which gave rise to that complaint.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Complaints Amendment (Quality Agency) Principle 2013
The Complaints Amendment (Quality Agency) Principle 2013 (Amending Principle) 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 purpose of the Amending Principle is to amend the Complaints Principles 2011 to reflect the establishment of the new Australian Aged Care Quality Agency (the Quality Agency) that replaces the existing Aged Care Standards and Accreditation Agency from 1 January 2014.
Human Rights Implications
This legislative instrument promotes the human right to health contained in article 12 of the International Covenant on Economic, Social and Cultural Rights. The Legislative Instrument engages the right of everyone to the enjoyment of the highest attainable standard of physical and mental health by enabling the Aged Care Commissioner to deal with complaints about the processes of the Quality Agency in accrediting residential aged care services or undertaking quality review of home care services. This helps to ensure that the required standard of care and services provided to recipients of aged care services is maintained.
Conclusion
This legislative instrument is compatible with human rights as it promotes the human right to health.
Senator the Hon Mitch Fifield
Assistant Minister for Social Services