EXPLANATORY STATEMENT
Issued by the authority of the Minister for Ageing
Aged Care Act 1997
Information Amendment Principles 2007 (No. 1)
The Aged Care Act 1997 (the Act) provides for the funding of aged care services.
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.
The Information Principles 1997 (the Information Principles) are one of the sets of Principles made under the Act.
The purpose of the Information Amendment Principles 2007 (No. 1) (the Amending Principles) is to make minor technical amendments to the Information Principles and to ensure that the Secretary of the Department of Health and Ageing can disclose certain information to the Aged Care Commissioner.
On 27 March 2007, the Aged Care Amendment (Security and Protection) Bill 2007 (the Bill), passed through Parliament giving effect to announcements made by the Australian Government in 2006 to increase protections for residents including the introduction of new aged care complaints investigation arrangements, including the establishment of a new Aged Care Commissioner.
The new complaints investigation arrangements are detailed in the Investigation Principles 2007 while the appointment and functions of the Aged Care Commissioner are detailed in Part 6.6 of the Act and the Investigation Principles.
In fulfilling his or her functions under the legislation, the Aged Care Commissioner may require access to information that is protected information under the Act.
The purpose of these Amending Principles is to provide for the Secretary to disclose protected information to the Aged Care Commissioner to assist the Commissioner to perform his or her functions.
The Amending Principles are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Consultation
The proposed new complaints investigation arrangements and the establishment of the Aged Care Commissioner have been the subject of extensive consultation with the aged care sector.
Exposure drafts of these Information Amendment Principles 2007, along with the Investigation Principles 2007, the Accountability Amendment Principles 2007 and the Records Amendment Principles 2007 (all of which give effect to the new complaints processes and the new assault compulsory reporting requirements) were circulated to members of the Minister for Ageing’s Aged Care Advisory Committee. The documents were also provided to other organisations which made submissions to the Senate Inquiry into the Bill. The Office of the Commissioner for Complaints has also been consulted. Comments received on the drafts were generally supportive of the approach adopted. The Department of Health and Ageing has taken these comments into account in drafting the final Principles.
Regulation Impact Statement
The Office of Best Practice Regulation has advised that no Regulation Impact Statement is required (RIS ID 8438).
Details of the amendments to the Information Principles are listed at Attachment A.
ATTACHMENT A
NOTES ON CLAUSES
Clause 1 states that the name of the Principles is the Information Amendment Principles 2007 (No. 1).
Clause 2 states that these Principles commence on 1 May 2007.
Clause 3 states that Schedule 1 amends the Information Principles 1997.
Schedule 1 Amendments
Item 1
Paragraph 16.5(1)(a) currently provides that the Secretary may disclose protected information to the Secretary of the Department of Family and Community Services.
This item makes a minor technical amendment to the paragraph which replaces the name of the Department as it has changed since the making of the Information Principles. The new name of the Department is the Department of Families, Community Services and Indigenous Affairs.
Item 2
This amendment adds ‘or’ to the end of paragraph 16.5(1)(d) to allow for the addition of paragraph (e) (see Item 3).
Item 3
This item adds paragraph 16.5(1)(e) to subsection 16.5(1) to allow the Secretary to disclose protected information to the Aged Care Commissioner in order to assist the Commissioner to perform his or her functions.
‘Protected information’ is defined in section 86-1 of the Act and includes information that was acquired under, or for the purposes of, the Act that is either:
- personal information. ‘Personal information’ is further defined in the Act to mean information or an opinion (including information or an opinion forming part of a database) whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion; or
- information that relates to the affairs of an approved provider; or
- information that relates to the affairs of an applicant for approval under Part 2.1 or an applicant for a grant under Chapter 5 of the Act.
Item 4
This item amends the Note in the Principles. The Note describes the circumstances in which it is an offence for an officer of the Department of Family and Community Services (amongst others) to record, disclose or use protected information under the Act. The item amends this Note to refer to the new title for the Department. The amendment replaces ‘Department of Family and Community Services’ with ‘Department of Families, Community Services and Indigenous Affairs’.
Overview
The Information Amendment Principles 2007 (No. 1) are an amendment to the Aged Care Act 1997, introduced to address the need for minor technical adjustments to the Information Principles and to facilitate the disclosure of certain information to the Aged Care Commissioner. Enacted by the Minister for Ageing, these principles aim to ensure the smooth operation of the new aged care complaints investigation arrangements and the establishment of the Aged Care Commissioner, as mandated by the Aged Care Amendment (Security and Protection) Bill 2007. The Bill, passed through Parliament on 27 March 2007, was a response to the Australian Government's 2006 announcements to enhance protections for residents in aged care facilities. The policy objective behind these amendments is to empower the Aged Care Commissioner to effectively carry out their functions by granting the Secretary of the Department of Health and Ageing the authority to disclose protected information. The Department has engaged in extensive consultations with stakeholders, including the aged care sector, to garner support and feedback for these new arrangements.
Scope and Application
The Information Amendment Principles 2007 (No. 1) applies to entities within the aged care sector, specifically those that provide aged care services, including approved providers and applicants for approval or grants under the Aged Care Act 1997. The principles primarily pertain to the handling and disclosure of protected information, which is defined in the Act as personal information about individuals, information about the affairs of approved providers, or information about applicants for approval or grants under the Act. The geographic reach of these principles is national, as the Act operates within the Commonwealth of Australia. These principles extend the ability of the Secretary of the Department of Health and Ageing to disclose protected information to the Aged Care Commissioner, which was previously limited to the Secretary of the Department of Family and Community Services. The amendment is a technical update to reflect the change in the department's name to the Department of Families, Community Services and Indigenous Affairs. The Information Amendment Principles 2007 (No. 1) are legislative instruments made under the Legislative Instruments Act 2003, allowing for further regulation or clarification through subordinate instruments if necessary.
Key Provisions
The Information Amendment Principles 2007 (No. 1) (section 1) introduce minor technical changes to the Information Principles 1997, aiming to ensure that the Secretary of the Department of Health and Ageing can disclose certain protected information to the Aged Care Commissioner. These Principles came into effect on 1 May 2007 (section 2). The substantive amendments are outlined in Schedule 1. Firstly, under Item 1, a technical amendment updates the name of the Department of Family and Community Services to the Department of Families, Community Services and Indigenous Affairs in paragraph 16.5(1)(a) (section 3, Item 1). This ensures the correct department is referenced in the context of disclosing protected information. Secondly, under Item 2, an amendment adds the conjunction 'or' at the end of paragraph 16.5(1)(d) to allow for the inclusion of a new paragraph (e) (section 3, Item 2). Thirdly, under Item 3, a new paragraph 16.5(1)(e) is added, authorising the Secretary to disclose protected information to the Aged Care Commissioner to assist in the performance of the Commissioner's functions (section 3, Item 3). Finally, under Item 4, an amendment updates the reference to the Department of Family and Community Services to the Department of Families, Community Services and Indigenous Affairs in the Note describing the circumstances in which it is an offence to record, disclose, or use protected information under the Act (section 3, Item 4).
The obligations imposed by these Principles on the Secretary of the Department of Health and Ageing primarily involve ensuring that they can legally disclose protected information to the Aged Care Commissioner when necessary to support the Commissioner's functions. This includes updating references to the correct department names to ensure compliance with the Act. Additionally, any officer of the Department who records, discloses, or uses protected information without proper authority commits an offence under the Act (section 3, Item 4). The new arrangements, including the role of the Aged Care Commissioner, are intended to enhance the protection and oversight of aged care services.
In terms of penalties and consequences for breaches, any officer of the Department who improperly records, discloses, or uses protected information commits an offence under the Act (section 3, Item 4). The specific penalties for such offences are detailed in the Aged Care Act 1997. For instance, under section 257 of the Act, an individual found guilty of an offence involving the misuse of protected information can be subject to penalties, including fines and imprisonment. The maximum penalty for such offences can be significant, reflecting the importance of protecting sensitive information within the aged care sector. These provisions ensure that there are clear legal consequences for any misuse of protected information, thereby maintaining the integrity of the information management processes within the aged care system.