EXPLANATORY STATEMENT
Issued by the authority of the Minister for Ageing
Aged Care Act 1997
Sanctions Amendment Principles 2008 (No. 1)
The Aged Care Act 1997 (the Act) provides for the 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.
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.
One set of Principles made under the Act is the Sanctions Principles 1997 (the Sanctions Principles).
The purpose of the Sanctions Amendment Principles 2008 (No. 1) (the Amending Principles) is detailed below. The Amending Principles are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Sanctions Amendment Principles 2008 (No. 1)
The purpose of these Amending Principles is to make minor changes to the Sanctions Principles that correspond to changes made to section 65-2 of the Aged Care Act 1997, through the Aged Care Amendment (2008 Measures No. 2) Act 2008.
Consultation
The policies reflected in the Amending Principles were the subject of consultation with the aged care sector through the Ageing Consultative Committee, which comprises peak industry, professional and consumer bodies. Sector feedback was considered in the development and fine tuning of the complex legislative and policy reform process.
Regulation Impact Statement
The Office of Best Practice Regulation has advised that no Regulation Impact Statement is required (OBPR ID 9978).
Details of the amendments to the Sanctions Principles are listed at Attachment A.
ATTACHMENT A
NOTES ON CLAUSES
Clause 1 states that the name of the Amending Principles is the Sanctions Amendment Principles 2008 (No. 1).
Clause 2 states that the Amending Principles commence on the commencement of the Aged Care Amendment (2008 Measures No. 2) Act 2008.
Clause 3 states that Schedule 1 amends the Sanctions Principles.
Schedule 1 Amendments
Item 1
Section 22.17 of the Sanctions Principles specifies matters to which the Secretary must have regard in deciding the length of a sanction period.
These matters broadly reflect those matters described in section 65-2 the Aged Care Act 1997 that set out the matters the Secretary must consider when deciding whether it is appropriate to impose sanctions.
As a result of the Aged Care Amendment (2008 Measures No. 2) Act 2008, changes were made to section 65-2 of the Aged Care Act 1997 to require the Secretary to consider whether the non-compliance would threaten the health, welfare or interests of future care recipients.
A corresponding change is therefore being made to section 22.17 of the Sanctions Principles to require the Secretary to have regard to whether the non-compliance would threaten the health, welfare or interests of future care recipients, when deciding the length of a sanction period.
Overview
The Sanctions Amendment Principles 2008 (No. 1) were enacted to amend the Sanctions Principles under the Aged Care Act 1997, aiming to align these principles with changes introduced by the Aged Care Amendment (2008 Measures No. 2) Act 2008. These minor changes were necessary to ensure consistency and effectiveness in the application of sanctions for non-compliance by approved providers in the aged care sector. The enacting body for these principles is the Minister for Ageing, and the policy objective is to maintain and improve the quality and safety of aged care services by adjusting the criteria for sanction periods in response to legislative updates. The principles were developed following consultation with the aged care sector through the Ageing Consultative Committee, which includes representatives from industry, professional bodies, and consumer groups, ensuring a balanced approach to policy reform.
Scope and Application
The Sanctions Amendment Principles 2008 (No. 1) apply to the Aged Care Act 1997, which governs the funding of aged care services in Australia. The Act applies to approved providers who are eligible for subsidy payments for the care they provide to approved care recipients. The Amending Principles modify the Sanctions Principles 1997, which pertain to the imposition of sanctions on approved providers for non-compliance with the Act. The Amending Principles were developed following consultations with the aged care sector and aim to align with changes made to section 65-2 of the Aged Care Act 1997 through the Aged Care Amendment (2008 Measures No. 2) Act 2008. These changes require the Secretary to consider the potential threat to the health, welfare, or interests of future care recipients when deciding the length of a sanction period. The Amending Principles have a national reach as they are an extension of Commonwealth legislation, and their application can be further extended or restricted through subordinate instruments. There are no specific exclusions or exemptions mentioned in the provided text.
Key Provisions
The Sanctions Amendment Principles 2008 (No. 1) make specific amendments to the Sanctions Principles of the Aged Care Act 1997 (the Act). These amendments are intended to align the Sanctions Principles with changes introduced by the Aged Care Amendment (2008 Measures No. 2) Act 2008. According to Clause 3 of the Amending Principles, Schedule 1 to these Principles revises the Sanctions Principles to reflect the updated considerations the Secretary must take into account when deciding on the length of sanction periods for non-compliance by approved providers of aged care services (subsection 96-1(1)). The primary change involves adding a consideration related to the potential threat to the health, welfare, or interests of future care recipients (Schedule 1, Item 1).
The obligations imposed by these Amending Principles on approved providers and the Secretary are primarily focused on compliance with the updated criteria for determining sanction periods. Approved providers must ensure their operations adhere to the standards set forth in the Aged Care Act 1997 and the Sanctions Principles. This includes being mindful of any potential non-compliance that could affect the health, welfare, or interests of future care recipients. The Secretary, on the other hand, is required to take into account the new matter—whether non-compliance would threaten the health, welfare, or interests of future care recipients—when determining the appropriate length of a sanction period. This obligation ensures that sanctions are both fair and protective of future care recipients' well-being (Section 22.17 of the Sanctions Principles).
Breaches of the provisions in the Aged Care Act 1997 and the Sanctions Principles can lead to various civil and criminal consequences. For example, if an approved provider fails to comply with the Act, the Secretary may impose sanctions, including financial penalties or suspension of their approval to provide aged care services. The severity and type of sanction depend on the nature and extent of the non-compliance. Under the Amending Principles, the Secretary must consider the potential threat to future care recipients when deciding the length of a sanction period. Failure to adhere to these updated considerations could result in legal action against the provider. The Act also provides for civil and criminal penalties for more severe breaches, with maximum penalties varying according to the specific offence (Section 65-2 of the Aged Care Act 1997). These penalties serve as a deterrent against non-compliance and ensure the protection of care recipients.