EXPLANATORY STATEMENT
Issued by the authority of the Minister for Ageing
Aged Care Act 1997
Records Amendment Principles 2006 (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 Records Principles 1997 (the Records Principles) are one of the sets of Principles made under the Act.
The purpose of the Records Amendment Principles 2006 (No. 1) (the Amending Principles) is to achieve the objectives detailed below. The Amending Principles are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Records Amendment Principles 2006 (No. 1)
Background
As part of the 2006-07 Budget, the Government announced that operators of aged care services which are subsidised by the Australian Government under the Act will require that staff employed by them, or engaged through an employment agency, and certain volunteers have obtained a police certificate (commonly known as a police check).
These requirements will be set out in the Accountability Principles 1998 (for staff and certain volunteers) and the Community Visitors Grant Principles 1997 (for volunteers operating as part of the Australian Government-funded Community Visitors Scheme).
As part of the new requirement, approved providers of residential aged care services will be required to keep certain records in order to demonstrate compliance with the new requirements.
The purpose of these Amending Principles is to detail those records that must be kept.
Consultation
The proposed new arrangements have been the subject of consultation with the aged care sector, including peak industry and consumer bodies.
Regulation Impact Statement
The Office of Best Practice Regulation has advised that no Regulation Impact Statement is required (RIS ID 8816).
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 Records Amendment Principles 2006 (No. 1).
Clause 2 states that the Principles commence on 1 March 2007.
Clause 3 states that Schedule 1 amends the Principles.
Schedule 1 Amendments
Item 1
Currently the definitions section in the Records Principles contains only one definition (the section provides that the “Act” means the Aged Care Act 1997). In addition to retaining this definition, this item adds two further definitions for terms that are now used in the Principles as a result of these amendments. The new terms that are defined are:
- Accountability Principles – this means the Accountability Principles 1998 made under subsection 96-1(1) of the Act; and
- police certificate – this means a report prepared by the Australian Federal Police or by the police force or police service of a State or Territory about the person’s criminal conviction record. This is the same definition as that used in the Accreditation Grant Principles 1999, the Accountability Principles 1998 and the Community Visitors Grant Principles 1997. These other Principles set out the requirements for aged care quality assessors, staff and volunteers to obtain police certificates (also commonly known as police checks).
Item 2
This is a consequential amendment to the heading of section 19.5. The change is necessary because of the addition of a new section 19.5A as described at Item 3.
Section 19.5 currently has the heading “Kinds of records to be kept”. Item 2 amends the heading to read “Kinds of records to be kept - care recipient”. This reflects the fact that section 19.5 deals with records about care recipients whereas the new section 19.5A relates to records to be kept in relation to staff.
Item 3
This item inserts a new section after section 19.5 (new section 19.5A).
Section 19.5A (Kinds of records to be kept — staff members and volunteers)
This section provides that an approved provider must keep records that enable the provider to demonstrate compliance with the new requirements relating to police certificates for staff and volunteers (the words “staff” and “volunteer” are defined in subsection 1.18(1) of the Accountability Principles 1998.
In particular:
- Part 4 of the Accountability Principles requires all staff members and volunteers to have a police certificate that is not more than three years old. In cases where the staff member or volunteer has been a permanent resident or citizen of another country (after age 16), statutory declaration must also be made. This item ensures that each approved provider must keep records that enable the approved provider to demonstrate compliance with this requirement. This does not necessarily mean that the approved provider must keep a copy of the actual police certificate. Rather the approve provider must keep evidence to demonstrate that a police certificate has been obtained for each staff member and volunteer and that the police certificate is no older than three years; and
- Part 4 of the Accountability Principles, also sets out certain circumstances where it is acceptable for a staff member or volunteer not to have a police certificate if they are in the process of obtaining one. In such circumstances, the approved provider must keep records that enable the provider to demonstrate that each such staff member or volunteer has applied for the police certificate and that they have made necessary statutory declarations confirming that they have not been convicted of murder or sexual assault or convicted of (and sentenced to imprisonment for) any other form of assault.
The Department of Health and Ageing will be providing guidance to approved providers about the type of information that should be retained in order to enable approved providers to demonstrate compliance with the record-keeping requirements.
Section 19.5B (Duty to keep police certificates)
This section provides that if a police certificate, or a copy of a police certificate, is kept by an approved provider under section 19.5A, the police certificate or copy must be kept in accordance with the Privacy Act 1988.