EXPLANATORY STATEMENT
Issued by the authority of the Assistant Minister for Social Services
Aged Care Act 1997
Information 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 Information Principles 1997 (the Principles).
The purpose of the Information Amendment (Quality Agency) Principle 2013 (the Amending Principle), is to enable the Secretary to disclose protected information (as defined in the Act) to:
- the chief executive officer (CEO) of the new Australian Aged Care Quality Agency (which will replace the existing Aged Care Standards and Accreditation Agency from 1 January 2014); and
- the Aged Care Pricing Commissioner.
Such disclosure is envisaged under the Act, which enables the Principles to describe kinds of people to whom protected information may be disclosed. Disclosure to the CEO of the new Quality Agency is consistent with the current policy to allow disclosure to the Aged Care Standards and Accreditation Agency. Similarly, disclosure to the Aged Care Pricing Commissioner is consistent with existing legislation to enable disclosure to others in similar roles such as the Aged Care Commissioner.
Both the CEO of the Quality Agency and the Aged Care Pricing Commissioner will have systems in place to ensure appropriate management of any protected information that is disclosed by the Secretary. Both will also be subject to prohibitions on the further disclosure of such protected information (reflected in the Australian Aged Care Quality Agency Act 2013 and in the Act).
The Amending Principle also makes minor technical amendments to remove redundant notes.
This 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 Quality Agency under the Australian Aged Care Quality Agency Act 2013 and the establishment of the Aged Care Pricing Commissioner under the Act.
The establishment of both the Quality Agency and the Aged Care Pricing Commissioner 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 and the Act. Where these changes are substantial, public 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 the 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 Information Amendment (Quality Agency) Principle 2013
Clause 1 states that the name of the Amending Principle is the Information Amendment (Quality Agency) Principle 2013.
Clause 2 states that the Amending Principle commences on 1 January 2014.
Clause 3 states that the Amending Principle is made under 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
Information Principles 1997
Item 1 – Section 16.4
Item 1 inserts a new definition for the term ‘Quality Agency’ in section 16.4. The Quality Agency means the Australian Aged Care Quality Agency. The Quality Agency is established under the Australian Aged Care Quality Agency Act 2013.
Item 2 – Paragraph 16.5(1)(c)
This item substitutes references to the Secretary providing protected information to the chief executive officer of the ‘accreditation body’ with references to the Secretary being able to provide protected information to the chief executive officer (CEO) of the Quality Agency to assist the CEO to perform his or her functions as described in section 12 of the Australian Aged Care Quality Agency Act 2013.
This amendment is necessary as a result of the Aged Care Standards and Accreditation Agency being replaced by the Australian Aged Care Quality Agency.
Item 3 – Paragraph 16.5(1)(c) (note at the end)
The note at the end of paragraph 16.5(1)(c) clarifies that the accreditation body referred to in paragraph 16.5(1)(c) is the body to which an accreditation grant is payable under Part 5.4 of the Act. As the result of changes to paragraph 16.5(1)(c) to remove the reference to the accreditation body and replace it with a reference to the CEO of the Quality Agency, the note is no longer necessary. This item therefore repeals the note.
Item 4 - Paragraph 16.5(1)(f)
This items amends subsection 16.5(1) to enable information to be disclosed to the Aged Care Pricing Commissioner (the Pricing Commissioner). Amendments to the Act made on
1 August 2014 established the Pricing Commissioner. The role of the Pricing Commissioner includes assessment of applications for extra service fees as well as assessments of applications from approved providers to charge accommodation payments that are higher than the maximum determined by the Minister. In fulfilling his or her functions under the legislation, the Pricing Commissioner may require access to information that is protected information under the Act. The purpose of this item is to provide for the Secretary to disclose protected information to the Pricing Commissioner to assist the Pricing Commissioner to perform his or her functions.
The inclusion of the Pricing Commissioner in this way is consistent with current provisions that enable the Secretary to disclose protected information to the Aged Care Commissioner.
The item also includes a reference to information being disclosed to the chief executive officer of the Australian Institute of Health and Welfare. This disclosure is currently permitted under the Principles, but has been re-stated in this item to reflect changes to paragraph numbering.
Item 5 – Subsection 16.5(2) (boxed note at the end)
Item 5 repeals the boxed note at the end of subsection 16.5(2). The note re-states, in part, section 86-7 of the Act. As the note does not add value and is not consistent with contemporary drafting practice, the opportunity is being taken to repeal the note.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Information Amendment (Quality Agency) Principle 2013
This 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.
Overview of the Legislative Instrument
Under paragraph 86-3(j) of the Act, the Secretary can disclose protected information ‘to a person of a kind specified in the Information Principles, for the purposes specified in the Information Principles in relation to people of that kind’. Subsection 16.5(1) of the Information Principles 1997 (the Principles) lists the kinds of people to whom protected information may be disclosed by the Secretary.
The purpose of the Information Amendment (Quality Agency) Principle 2013 is to enable the Secretary to disclose protected information to the new Australian Aged Care Quality Agency (which will replace the existing Aged Care Standards and Accreditation Agency from
1 January 2014) and to the Aged Care Pricing Commissioner (the Pricing Commissioner).
Human Rights Implications
Personal information about individuals receiving care aged care, or information about the affairs of an approved provider, may be included in the information able to be disclosed to the CEO of the Quality Agency and to the Pricing Commissioner, by the Secretary.
The Amending Principle therefore engages Article 17 of the International Covenant on Civil and Political Rights (ICCPR) which sets out the right to protection from arbitrary or unlawful interference with privacy. Article 17 of the ICCPR does not set out the reasons for which the guarantees in it may be limited. However, limitations on privacy must be authorised by law and must not be arbitrary. In order for the limitations not to be arbitrary, the interference must be reasonable, necessary and proportional to the end sought. The collection, storage, use and disclosure of personal information to and by the Quality Agency or by the Pricing Commissioner will engage Article 17.
The Amending Principle will amend the Information Principles to list the CEO of the Quality Agency and the Aged Care Pricing Commissioner as people to whom the Secretary may disclose protected information for a specified purpose under paragraph 86-3(j) of the Act. Therefore, the disclosure of protected information under that paragraph, by the Secretary, will be authorised by law. How the protected information can be dealt with once received by the CEO or by the Pricing Commissioner will be limited by section 86-5 of the Act. That is, it must only be recorded, disclosed or used for the purpose for which it was disclosed by the Secretary. Disclosure or use for any other purpose is an offence punishable by imprisonment for a term of two years.
Personal information is also protected by the provisions of the Privacy Act. The Privacy Act applies to all personal information held by the Department and by any person to whom protected information is disclosed.
Conclusion
The legislative instrument is compatible with human rights because the interference to the privacy of individuals receiving care under the Act is reasonable, necessary and proportional to the end sought. Parliament, through the Act, has already endorsed this method for adding additional individuals or bodies to the list of those to whom protected information under the Act can be disclosed. In order for the quality of aged care funded by the Commonwealth, and the performance of aged care providers approved under the Act, to be effectively regulated, disclosure of protected information to the CEO of the Quality Agency will from time to time be necessary. Disclosure in these circumstances is already provided for in the Information Principles in respect of the Aged Care Standards and Accreditation Agency and the amendment is therefore consequential to the establishment of a new Quality Agency.
Similarly, disclosure to the Aged Care Pricing Commissioner is consistent with existing legislation to enable disclosure to others in similar roles such as the Aged Care Commissioner.
Senator the Hon Mitch Fifield
Assistant Minister for Social Services