EXPLANATORY STATEMENT
Issued by the authority of the Minister for Ageing
Aged Care Act 1997
Investigation Amendment Principles 2007
The Aged Care Act 1997 (the Act) provides for the funding of aged care services.
On 27 March 2007, amendments were made to subsection 96-1(1) of the Act which allows the Minister to make Principles providing for various matters required or permitted by a Part or section of the Act. Specifically, the amendments enabled the making of Investigation Principles under the Act.
The Investigation Principles 2007 (the Investigation Principles) outline the process that the Secretary to the Department of Health and Ageing (the Secretary) will undertake in investigating complaints or information brought to his or her attention regarding the responsibilities of a residential or community aged care provider under the Act.
The purpose of the Investigation Amendment Principles 2007 (No. 1) (the Amending Principles) is to make a minor amendment to the Investigation Principles to ensure that the Secretary of the Department of Health and Ageing (the Secretary) must take all reasonable steps to notify an informant before releasing confidential information.
The purpose of these Amending Principles is to provide for circumstances in which a request to keep information confidential will not be complied with.
The Amending Principles are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Consultation
The Investigation Principles were made on 1 May 2007 and tabled in the House of Representatives on 8 May 2007 and the Senate on 9 May 2007.
On 15 August 2007 the Senate Standing Committee on Regulations and Ordinances gave a notice of motion to disallow the Investigation Principles. This motion was to allow further time for correspondence in relation to subsection 16A.9 of the Investigation Principles. The Committee is concerned that subsection 16A.9 does not indicate whether an informant is to be notified if a request for confidentiality will not be complied with. The Committee requested that the Investigation Principles be amended so that the Secretary must make all possible attempts to contact an informant before releasing confidential information. The Committee have been provided with a copy of the Investigation Amendment Principles 2007 (No. 1) and have indicated they are satisfied with them.
Details of the amendments to the Principles are listed at Attachment A.
ATTACHMENT A
NOTES ON CLAUSES
Clause 1 states that the name of the Principles is the Investigation Amendment Principles 2007 (No. 1).
Clause 2 states that these Principles commence on the day after they are registered.
Clause 3 states that Schedule 1 amends the Investigation Principles 2007.
Schedule 1 Amendment
Item 1
This amendment inserts a (1) at the beginning of section 16A.9 to allow for the addition of a paragraph (2) (see Item 2).
Item 2
This amendment relates to the addition of a clause under 16A.9 that requires that the Secretary must take all reasonable steps to notify an informant before deciding not to keep confidential a matter that the informant has requested be kept confidential under subsection 16A.5(3).
Overview
The Investigation Amendment Principles 2007 (No. 1) were enacted to address a gap identified in the process for handling confidential information in investigations of aged care providers under the Aged Care Act 1997. This legislative instrument was introduced to ensure that the Secretary to the Department of Health and Ageing takes all reasonable steps to notify informants before releasing any confidential information, aligning with the concerns raised by the Senate Standing Committee on Regulations and Ordinances. The Amending Principles aim to amend the Investigation Principles 2007, ensuring compliance with confidentiality requests made by informants, thereby enhancing transparency and accountability in the aged care sector. These principles were tabled in the House of Representatives and the Senate in May 2007 and were subsequently amended following the Committee's motion in August 2007, reflecting a commitment to addressing stakeholder concerns and improving the legislative framework for aged care investigations.
Scope and Application
The Investigation Amendment Principles 2007, as part of the Aged Care Act 1997, apply to residential and community aged care providers who are subject to the Act’s requirements and obligations. These Principles are concerned with the investigative process undertaken by the Secretary to the Department of Health and Ageing when handling complaints or information related to the responsibilities of aged care providers. The principles are intended to ensure that the Secretary takes all reasonable steps to notify informants before releasing any confidential information that the informant has requested to be kept confidential. The scope of these principles is national, aligning with the federal legislative framework under which the Aged Care Act 1997 operates. The Investigation Amendment Principles 2007 (No. 1) were made to address concerns raised by the Senate Standing Committee on Regulations and Ordinances, particularly regarding the need for explicit notification to informants if a request for confidentiality is not to be complied with. The principles do not specify any exclusions or exemptions, and their application is limited to the circumstances outlined within the amended provisions. The principles also extend their application through subordinate instruments as necessary to implement the legislative intent.
Key Provisions
The main operative sections of the Investigation Amendment Principles 2007 (No. 1) relate to the process of notifying an informant before releasing confidential information. Section 16A.9(1) now requires that before deciding not to keep confidential a matter that an informant has requested be kept confidential, the Secretary must take all reasonable steps to notify the informant. This requirement is intended to ensure that the informant is aware of the decision to not keep the information confidential, as outlined in section 16A.5(3).
The obligations imposed by the Act on the parties or entities it governs, particularly the Secretary of the Department of Health and Ageing, include the necessity to undertake all reasonable steps to notify an informant before releasing any confidential information, as required by section 16A.9(2). This obligation ensures that the informant is informed about the decision to not keep the information confidential, as requested under subsection 16A.5(3). The Act also mandates that the Secretary must comply with the requirements of the Aged Care Act 1997 when investigating complaints or information regarding the responsibilities of aged care providers.
The Investigation Amendment Principles 2007 (No. 1) do not explicitly outline specific offences, penalties, or civil/criminal consequences for breaches. However, failure to comply with the requirement to notify an informant before releasing confidential information could potentially lead to legal consequences under the Aged Care Act 1997 or other relevant legislation. The consequences could include administrative penalties, legal action, or other remedies available under the law for non-compliance with the Act's provisions.
The Amending Principles are a legislative instrument for the purposes of the Legislative Instruments Act 2003, and they aim to ensure that the Secretary of the Department of Health and Ageing must take all reasonable steps to notify an informant before releasing confidential information. This requirement is intended to address the concerns raised by the Senate Standing Committee on Regulations and Ordinances regarding the lack of clarity in subsection 16A.9 of the original Investigation Principles. The Committee has indicated that they are satisfied with the Investigation Amendment Principles 2007 (No. 1), which now provide for circumstances in which a request to keep information confidential will not be complied with, and require the Secretary to make all possible attempts to contact an informant before releasing such information.